In a statement released today, the Bar Council has said that whilst the direction of travel on civil judicial cooperation is welcome, the Government’s Brexit White Paper has in many respects given the legal services sector “real cause for concern.”
The professional body described the White Paper’s Free Trade Agreement (FTA) approach to services as “disappointing”.
The Bar Council statement says: “There is no evidence that FTAs have led to a more liberal regime for trade in services in the past – indeed, the evidence is to the contrary.”
“Unless the government can explain how a binding EU-wide regulatory framework for legal services could be agreed in an FTA context, the legal professions in the UK would be left to negotiate different bilateral agreements (at a political and/or bar association level) covering the provision of legal services with many of the other 27 (or 30, including EEA) member states.
“Even if successful, this would provide only a patchwork of rights and obligations, varying from country to country. All this will take many years, if it can be accomplished at all, and in the meantime UK clients will face additional difficulties and cost in ensuring access to justice in their dealings with the EU/EEA.”
In practice, this could mean:
- Lawyers from England and Wales may lose their right to advise on EU law (and even UK law) when on the soil of the EU27. This means that UK businesses – which will still need to operate under EU law (and, on the White Paper’s approach, even within the UK in some respects) – will be unable to have their trusted UK legal professionals by their side, and will instead be forced to hire lawyers from the EU27 with whom they are not familiar and vice versa, despite language and other barriers, to protect and defend their rights within the EU.
- Barristers from England and Wales will lose the right to defend the UK Government, UK businesses and UK citizens before the Court of Justice of the EU. This would be despite having been recognised in summer 2014 by the former president of the CJEU as providing some of the best advocates in the CJEU. This will be a huge loss to both the UK and the EU.
- The UK professions would be left firmly on the margins of cooperation between bar associations in Europe, making it harder to maintain or extend their market share. A UK success story would be put at risk.
- The UK itself risks not only the loss of the tax revenue from this activity, but also an erosion of the enormous influence and ‘soft power’ generated by our legal services sector in Europe and internationally.
The Bar Council’s statement was released as Justice Minister Lucy Frazer confirmed to the House of Lords EU Justice Sub-Committee today that the UK will seek fully reciprocal arrangements in all areas of civil justice cooperation.
The Bar Council has also produced a draft international agreement on civil justice cooperation, which could be adopted by both sides regardless of the outcome of the Brexit talks.