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Brexit: looking to the future

10 Dec 18

A look at what the political declaration on the framework for the future relationship between the European Union and the United Kingdom means for solicitors

by Katie Hay

Following the conclusion of UK-EU negotiations on the main provisions of the Withdrawal Agreement last month, the UK and EU also concluded negotiations on the draft political declaration on the future relationship between the EU and the UK, which accompanies the Withdrawal Agreement and was presented to the EU Council at its emergency summit on 25 November before it is put to a vote in the House of Commons. This article provides an overview of the main provisions of the declaration that have direct relevance to solicitors. More in-depth analysis of the document is available on the Brexit pages of the Society’s website.

What’s been agreed so far

The final draft Withdrawal Agreement sets out the terms of the UK's exit from the EU, including a Protocol on Northern Ireland, and is an agreement in principle between the UK and EU negotiating teams on the full legal text. It includes 185 articles, three Protocols on Gibraltar, Ireland and Cyprus and a series of Annexes.

As explained in this press release from the EU Commission, the draft Withdrawal Agreement covers all elements of the UK's withdrawal from the EU: citizens' rights, the financial settlement, a transition period, governance, and the Protocols mentioned above, as well as a range of other separation issues, such as the recognition of professional qualifications.

Provisions dealing with lawyers and representation before the CJEU

Concerning lawyers, articles 27 and 28 refer to the Recognition of Professional Qualifications Directive (2005/36/EC) and the Establishment Directive (98/5/EC) and essentially protect the framework allowing EU qualified lawyers to requalify in another EU member state by way of examination during the implementation period, as well as grandfathering the rights of those who integrated into the host country profession prior to Brexit via article 10 of the Establishment Directive (it does not grandfather the rights accorded by article 3 of those who want to continue to practise under their home-country title). In addition, if recognition of professional qualifications has been requested before the end of the transition period, it allows the application to be processed domestically in accordance with the EU rules applicable when the application was made.

Representation before the CJEU

Article 91 of the final draft agreement provides that if a UK-qualified lawyer 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. A UK-qualified lawyer may also represent or assist the United Kingdom in proceedings covered by article 90 of the agreement in which the United Kingdom has decided to intervene or participate.

Intellectual property; ongoing cooperation in criminal, civil, commercial matters

In addition to the provisions on qualifications and practice rights, Titles IV-VI contain transitional provisions on intellectual property; ongoing police and judicial cooperation in criminal matters; and ongoing judicial cooperation in civil and commercial matters, respectively. These cover issues such as the continued registration and recognition of trade mark rights and geographic indicators granted before and during the transition period; ongoing involvement in investigation and information exchange networks; and recognition and enforcement of judicial decisions.

Framework for future relationship

The political declaration accompanying the agreement sets out the scope and terms of the future UK-EU relationship. It provides instructions to negotiators that will deliver a future relationship by the end of 2020, covering an economic partnership, a security partnership and agreements on areas of shared interest. Various sections of the 26-page document are relevant to the regulation, practice rights and practice areas of solicitors.

Services

Paragraphs 29-36, under “Economic Partnership”, set out objectives for “ambitious, comprehensive and balanced arrangements on trade in services and investment in services” that go beyond WTO commitments and build on recent Union free trade agreements (FTAs); and include important provisions on access and regulation.

The declaration highlights the need for provisions on market access and non-discrimination, including with regard to establishment. It also says arrangements should allow for the temporary entry and stay of natural persons for business purposes in defined areas.

Among the provisions on regulation, it says that the parties should develop appropriate arrangements on those professional qualifications which are necessary to the pursuit of regulated professions, where in the parties' mutual interest.

Paragraphs 44-47 of the declaration set out the protection and enforcement of intellectual property rights, which should go beyond the standards of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, as well as relevant World Intellectual Property Organisation (WIPO) conventions. This would result in the preservation of the current high levels of protection of certain rights under copyright law. Referring to the provisions contained in the withdrawal agreement on existing geographic indicators, it states that appropriate protection should be put in place for future geographic indicators and sets out a requirement for ongoing cooperation and exchange of information on intellectual property issues of mutual interest.

On family law, paras 57-58 (contained in the section on “mobility”) highlight a commitment to the “effective application of the existing international family law instruments to which they are parties”, and note the UK’s intention to accede to the 2007 Hague Maintenance Convention. It also provides that options should be explored for judicial cooperation in matrimonial, parental responsibility and “other related matters”.

Paragraphs 88-90 establish principles of operational cooperation between law enforcement authorities and judicial cooperation in criminal matters, recognising the value of continued cooperation via Europol and Eurojust.

There are further provisions on streamlining procedures and time limits, enabling the UK and EU to surrender suspected and convicted persons efficiently and expeditiously.

Delivering the agreement

As well as being a statement of the principles that should govern negotiations and the objectives they should achieve, the agreement sets out how negotiations should be carried out in order to succeed. On governance, the document proposes that an institutional framework could take the form of an Association Agreement and it also provides that there should be the opportunity to review the future relationship should either side develop or change their position on any particular issue. Paragraphs 138-147 offer procedural guidance for future negotiations, including drawing up a schedule for the work programme prior to 29 March 2019 (prioritising arrangements for Ireland/Northern Ireland). Once the UK leaves the EU, both parties should agree on a programme setting out the structure and format of the negotiation rounds, and a formal schedule of negotiating rounds; and a high-level conference should take place every six months to review progress.

Blueprint for the future?

The declaration is sufficient for its main purpose, which is to comply with article 50 obligations and to allow the UK Parliament to follow the procedural requirements for leaving the EU set out in s 13 of the EU (Withdrawal) Act. However, lacking detail as it does on fundamental areas such as civil judicial cooperation and cross-border access to legal advice and representation, there is much more work to be done than the framework currently envisages before we would have an agreement in place with the EU which we can be confident would safeguard citizens’ rights, the interests of justice and the rule of law.

Katie Hay is head of International at the Law Society of Scotland

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