Aye to Brussels

Scottish solicitors are strongly in favour of the United Kingdom remaining in the European Union, but have conflicting views on the benefits and drawbacks of EU membership and the likely consequences if the UK votes to leave in the forthcoming referendum.

Should the Society remain neutral on the issue of EU membership, as it did in the debate preceding the Scottish independence referendum? Most respondents (71%) think so, reflecting the previous year’s member survey – though opinions vary from “Campaign to exit the EU – the negative effect the EU has on democracy, accountability and freedom”, to “It is right and proper for the Law Society of Scotland to place its head above the parapet and confirm that it supports continued UK membership. Anything less than this is cowardly.”

However, with or without taking sides, the Society intends to play a full and active role in the debate and to test both sides on their positions, through special events and otherwise.

Survey profile

Publicised through Journal online, the Society’s e-bulletin and social media channels, the survey attracted 275 separate responses. There was an almost equal split between those younger and those older than 40; 34% of respondents work in-house. More than one in 10 work outside Scotland.

Asked how they would vote as things stood, 81% supported staying in the EU and 10% would vote to leave. The remainder did not know, declined to answer, or in a few cases stated they would (or could) not vote. Overall, 76% had made up their minds, 18% were reasonably sure but still open to persuasion, and 5% did not know.

There was less certainty as to the actual result: 55% believed the UK would vote to stay in and 9% predicted a vote to leave, but 35% thought it too early to say.

A majority believed that EU membership has had a positive impact on their business: 75% of respondents believed this to be the case, including 42% who stated there had been a major positive impact. The most commonly cited reasons were access to the single EU market, free movement of people, and the UK’s standing in the international community; but EU grants and subsidies, and employment directives and regulations, also achieved a positive view. Only EU regulatory requirements received a less than 50% positive rating (at 49%), though a further 21% said they made no difference.

For the referendum campaign, solicitors would like to see the Society generating debate and providing unbiased information about the EU; debunking myths about perceived negative aspects, including over-regulation and the ECHR; and trying to bring clarity to what the various scenarios would mean in practice for UK businesses and the economy. Others suggested that the Society should ascertain how any negative effects of leaving the EU, such as on recognition of professional qualifications, may be mitigated.

Predicted impacts

The questionnaire also gave members the chance to comment for themselves on how leaving the EU would impact them as solicitors, positively or negatively, and what they would change about the EU. Regarding positive aspects of leaving the EU, a number could not think of any; others thought it would lead to an increase in work, albeit perhaps temporary, and there was quite a common view that interpreting law would be less complex without having to consult EU legislation and case law, and that there would be fewer regulatory hoops to jump through. Some respondents cited greater national sovereignty as a positive outcome; others predicted (as a positive or a negative outcome) that Brexit would give rise to another referendum on Scottish independence.

Concerns at the negative effects of Brexit included restrictions on the freedom to practise in other EU jurisdictions; the impact on the economy, including inward investment to Scotland and the UK as a whole (with knock-on effect on demand for legal services); the perception of insularity in a globalising world; the inability to inform the EU legislative process, which it was thought would still affect the UK; and the possible impact on human rights. Again there were those who thought there would be no such effects.

What would solicitors wish to change about the EU? The most common themes were improved democratic accountability, less bureaucracy, reduced cost, and increased transparency. For some specific comments, see the panel. 

All shades of opinion

Below is a selection of individual member opinions on the consequences of leaving, and what most needs to be changed about the EU. Readers must judge for themselves how much weight each one carries!

Positive impacts of leaving:

• Lots of turmoil so potentially more legal work
• Closer business links with Commonwealth, common law jurisdictions
• No EU law to consult, just Scots law and UK law
• Less [sic] arguments over breach of human rights
• More bespoke legislation
• Ability to set one’s own laws without outside interference
• Immigration controls tightened (hopefully to mirror successful immigration programmes like Canada & Australia)
• Greater national retained income for social projects
• Less red tape
• UK employment law would become more certain/predictable
• Removal of EU legislation, particularly on human rights issues which appear to favour those committing wrongdoing
• More work on federalism in the UK
• I work in the public sector so removal of “direct effect”
• Opportunity to overhaul law against the sometimes bonkers judgments of the ECJ!
• Career mobility
• Reintroduction of tariffs and borders
• Possibility that Scotland can somehow remain in but without having to go for full independence
• Ease of travel
• Independence for Scotland (so we could rejoin)
• The Law Society could close its Brussels office and there must be costs savings for all sorts of other organisations
• Perhaps increased work in due course due to increasing poverty in terms of marital breakdowns etc
• Might retire earlier!

 Negative impacts of leaving:

• Difficulties in having a UK solicitor qualification recognised in EU
• Likely regression to less regulated employment and H&S regime
• Diversion from equalities agenda
• Human rights would suffer
• Lack of legislation with social/welfare leanings
• Backward development of Scots and/or UK law
• No input on future EU rules with which the UK still need to comply
• May make enforcement of decrees more difficult
• It would complicate dealing with matters in other European countries
• UK will be seen as isolationist, an unattractive place within which to do business
• Larger clients may relocate to within the EU bloc
• Another Scottish referendum
• Bureaucracy
• Less European law = less work interpreting it
• Loss of the stimulus that EU law provides
• Potential dip in the housing market
• Time and cost associated with figuring out effect of change on law
• Chaos in the financial system and lack of clarity about financial regulation derived from EU
• Constitutional uncertainty
• All law and business much more London centric
• Reduction in importance of English contract law
• More time consuming regulatory problems with immigration
• Poorer quality legal work
• Reintroduction of tariffs and borders
• Never-ending “disentanglement” negotiations
• National legislation insufficient nowadays to face modern challenges; EU institutions have an edge in this field
• Triumph of narrow nationalism will poison the political culture
• Less immigration to the UK and an aging population with potentially diminishing client base
• Might have to retire earlier!

 If you could change one thing about the EU, what would it be?

• Bureaucracy
• Simplify the existing body of EU law. It can be rather complex
• I would scrap it and redesign a free trade area
• That it ceased to exist. The EU is an utterly Fascist concept.
• It does need to democratise itself. I’d go for a fully federal structure (in the long term) modelled on the USA
• I would rein in the charge towards a federal European system which is basically what is behind the clamour to sever from the EU
• Faster progress towards political union generally – showing the world that we have the maturity as a (European, as opposed to British, French, German etc) people to grow beyond an outdated obsession with the absolute sovereignty of the nation state
• Currency union
• Rejection of political and monetary union
• That they return to the economic issues that led to common market and back out of other aspects of UK life
• I’d prevent the bullying of the peoples of countries such as Greece and Scotland, as seen in the recent negotiations over debt and also in the inappropriate interventions by EU leaders into the referendum debate
• Try to achieve consistency without trying to fit everything into one box, i.e. consistency but recognising local differences more, allowing a greater, more practical margin of appreciation
• The social policy impact of employment directives and European case law. More freedom for member states to interpret EU decisions, providing the health and safety protections are met, e.g. holiday pay cases
• Reaffirming the role of the EU Commission... notably in regard to the power to impose its will on absence of Council unanimity
• Less power to Commission and more to the European Parliament
• Abolish the Commission
• Improve the accountability of the members of the European Parliament
• Getting shot of human rights arguments
• Improve oversight of spending and budgeting
• Consequences of free movement of workers in relation to our welfare state
• The reason I will probably vote to come out of the EU is one of competence. The Greek fiasco illustrates that the fulfilment of a grand project, in that case the Eurozone, takes precedence over the recognition of limits imposed by reality
• Greatly restrict the power and influence of the larger states, such as the UK
• UK interpretation and application of EU law. Perfect is boring! Be more liberal
• The power that seems to be currently centred in Germany. But of course, that is one of the reasons why we need the EU in the first place