By Lewis Wright
Nobody said Brexit would be a walk in the park. Nobody mentioned, however how deep and dark this park would be and how lost we’d get on the way. But, we have now reached an agreement and so it must be asked; what happens next, at least in terms of the legal sector?
The brunt of the answer is included within the Trade and Corporation Agreement, alongside explanatory notes and an explanatory brochure, with the latter two being issued by the UK government and EU Commission respectively.
It is fair to say that most did not have high hopes for the deal, due to countless failures in negotiation, but for those in the legal sector there is a silver lining. Only five professions were explicitly covered within the Brexit agreement – one of which was the legal one. For those interested, the other four are telecommunications, delivery, financial services, and international maritime transport.
The biggest plus for the legal profession, it would seem, is the calibre at which it is now held. With the services aspect of the deal only spanning 5% of the overall agreement, the specific mentioning of the profession becomes an even bigger feat in itself. This does also present some positive connotations for the future, as an increase in international deals is now more likely than ever to include some sort of clause to protect the legal sector.
However, the bad is pretty bad, with some describing it as "effectively a hard Brexit’ for lawyers". The details aren’t overly clear at the moment, but it seems that whilst most foreign legal practices are still available to access by legal professionals and "will not change as a result of the agreement", this may differ in the future. This poses a wide shadow of looming uncertainty as each Member State will be able to change its own domestic rules, which may result in less (or perhaps more) powers for the legal professionals on this side of the Channel.
But what does this mean? Perhaps it is best that a few current powers were stated in order to understand the impact. Prior to the 31st December 2020, solicitors could advise on both home and Member State law, as well as EU law. They could also offer "temporary cross-border legal services without the need to register with the host bar". Now, the harsh reality is that these powers solicitors once had will probably never be seen again.
In fact, Member States in the EU can now set registration requirements for UK lawyers. Therefore, British lawyers would not be able to practice prior to these conditions being met. However, it is agreed that these requirements cannot be any "less favourable than those which apply to lawyers from third countries in relation to third country law or public international law".
Improvements must also be made in regard to mutual recognition of professional qualifications. Whilst a structure has been put in place to deal with this, as well as a body named the Partnership Council, very little is known on whether British qualifications will be recognised by the remaining Member States, or whether we will adopt a system similar to Canada’s.
The agreement definitely provides clarity surrounding the legal sectors’ powers, but, despite this transparency, the positives from this agreement seem to be few and far between. However, ultimately Brexit is not focused on the legal sector and to view the whole ordeal as negative due to this segment of the deal would be naïve. In order to base a full opinion, one must look at all the aspects included in the UK government’s Agreement.