The Brexit deal does not help our practice rights

How did lawyers’ practice rights fare in the much-trumpeted breakthrough last week between the UK and the EU in the Brexit negotiations? The answer – which is ‘little progress’ - can be measured objectively by comparing the documents published intermittently during the negotiations with the final Withdrawal Agreement.

The position of our government on lawyers’ practice rights appeared to be the same during the negotiations as that of the Law Society: to ensure that the free movement of lawyers continued after Brexit, in accordance with the various directives.

This becomes apparent from the comparison document outlining the EU/UK positions on citizens’ rights dated 31 August 2017, where the UK’s stated aim was a recognition of qualifications acquired before Brexit that would entitle lawyers to practise anywhere in the EU after Brexit.

The EU was against this from the start. It said that the effects of recognition should be limited to the issuing state, with no subsequent single market rights. This was also the position of the EU 27 bars, as expressed to the Council of Bars and Law Societies of Europe (CCBE).

Both negotiating parties maintained their conflicting positions in the comparison paper published at the end of September.

And who won the argument? The comparison paper published once the negotiations were completed shows that the position of both the EU and the UK on the territorial scope of recognition of professional qualifications coalesced around the EU’s view that such scope should be restricted to the host state. There is no more hopeful talk about the right to practise across the EU.

This is further confirmed in the withdrawal agreement itself, which actually mentions lawyers. Paragraph 32 states: ‘Decisions on recognition of qualifications granted to persons covered by the scope of the Withdrawal Agreement before the specified date in the host State … under Title III of Directive 2005/36/EC (recognition of professional qualifications where the person concerned was exercising the freedom of establishment), Article 10 of Directive 98/5/EC (lawyers who gained admission to the host State profession and are allowed to practise under the host State title alongside their home State title) … will be grandfathered.

Recognition procedures under these directives that are ongoing on the specified date, in respect of the persons covered, will be completed under union law and will be grandfathered.’

In plain English, this means that only two categories of UK lawyers will continue to have any rights recognised after Brexit through the withdrawal agreement. They are those who have acquired another EU title for the purpose of establishment in another member state, under either of the two directives mentioned in the citation. Their rights will be restricted to the host state whose lawyer’s title they have obtained through one of the directives. They will have no right to cross other borders with their title.

There are important categories which are significantly missing from this very narrow definition. First, lawyers who practise elsewhere in the EU under their home title – for instance, as an English solicitor in Paris, rather than as a French avocat there - have no rights under this agreement after Brexit. Nor does any solicitor based in the UK who wishes to offer temporary services across borders into the EU.

These groups, which make up significant chunks of the UK’s export of legal services into the EU, are not without hope, since the eventual trade agreement might cover them, but there is nothing for them now. (Clearly those currently practising under home title can, if eligible, still apply for host title before Brexit and be grandfathered into the new offer.) But at present, only those with an existing host title have any rights, restricted to one state. That is why I said there has been little progress.

Here are the two lessons I personally draw. The first, evidenced also by its failure to achieve other aims, is that our government is not strong in the negotiations. Therefore, more diplomatic resources should be trained in the future on the CCBE and the bars of the EU 27 member states, on whose opinions the European Commission will rely in the forthcoming trade negotiations.

Second, the manner of the diplomatic approach will be important. I understand that the EU 27 bars find our wish to have full continuing practising rights after Brexit as no more than the UK wanting to have its cake and eat it – as if voting for Brexit has no consequences. The recent launch of the UK Global Legal Centre campaign has irritated some even further. We should be more aware of the other side’s point of view when shaping our approach to the trade negotiations, to ensure greater success in the outcome.

In this way, I hope there will be full success for lawyers’ practice rights in the forthcoming trade deal.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council