Brexit Information on issues affecting solicitors, their clients and the wider public
Brexit Q&A
In advance of the end of the transition period on 31 December, the UK law societies' joint Brussels Office produced updated guidance and Q&As for UK lawyers practising in the EU and EU lawyers practising in the UK. We will continue to monitor any developments in relation to practice rights arising from the implementation of the UK EU Trade and Cooperation Agreement.
The government has published a toolkit to equip employers with the necessary information to be able to advise their employees who are EU citizens; and the Home Office has released a podcast, which covers everything an employer needs to know if they are thinking of hiring anyone from outside the UK from 1 January 2021. The podcast is available on Acast, Apple and Spotify.
Now that the transitional period has ended you will be subject to your host bar's rules in relation to third country lawyers (unless you took steps to protect any rights acquired prior to 31 December). This will vary from country to country and you will need to seek clarification from your local bar directly.
With regard to your immigration status, again this will vary from country to country. The UK government has published guidance on this, which they are updating regularly when each EU state makes its position known. The living in guides offer more about the country you live in, and you can sign up for email alerts on these guides.
Scottish solicitors no longer have rights of audience in the EU courts. However, if a solicitor has represented or assisted a party in proceedings before the Court of Justice of the European Union or in relation to requests for preliminary rulings made before the end of the transition period, that lawyer may continue to represent or assist that party in those proceedings or in relation to those requests. This right shall apply to all stages of proceedings, including appeal proceedings before the Court of Justice and proceedings before the General Court after a case has been referred back to it. The same principle applies to proceedings before the EU Intellectual Property Office.
Thereafter, if you want to have continued rights of audience, you would need to have requalified and be authorised to practise in another EU jurisdiction. Article 19 of the CJEU Statutes provides that “only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court”. It does not appear to require the lawyer to be a national of that (or any EU/EEA) State.
A number of Scottish solicitors have requalified in Ireland in a bid to maintain their EU status but the Law Society of Ireland has clarified that they will only issue practising certificates to solicitors who practise in Ireland and so it is clear that this is not a viable solution for Scottish solicitors unless they are practising out of Ireland and comply with certain requirements, such as having appropriate professional indemnity insurance cover in place.
Additional resources
The transition period ended on 31 December 2020. To assist UK legal practitioners providing legal services on a temporary and/or permanent basis in one or more EU Member States, the joint UK Law Societies’ Brussels Office produced updated guidance and Q&As for UK lawyers practising in the EU. They have also produced updated guidance for EU lawyers practising in the UK.
The change in rules that took effect from 1 January 2021 will have an impact on legal businesses and legal services. Even though a trade agreement was finalised, much of what we reported in the run-up to the UK’s formal departure from the EU when it looked possible that no withdrawal agreement would be forthcoming is still relevant. The UK government recently published updated guidance for legal professionals on Family law disputes involving the EU and also on Cross-border civil and commercial legal cases. The Intellectual Property Office has published guidance on changes to IP law from 1 January 2021.
Meanwhile, the European Commission has published a Communication on readiness at the end of the transition period which gives detailed consideration to areas such as trade in goods and services, energy, travelling and tourism, mobility and social security, company law and civil law, and data, digital and intellectual property rights.
You can access all of the notices here. The services notice can be accessed here.
For business owners, Scottish Enterprise has created a Brexit self-assessment tool to identify what you can do now to prepare for changes taking place following the Brexit transition period. You can access it alongside various other sources of advice and information at www.prepareforbrexit.scot.
Our Brexit policy work
Our latest briefings, responses and position papers on Brexit-related legislation and parliamentary inquiries