One of the central topics dominating global media headlines and occupying minds around the world is, not surprisingly, Brexit. Specifically: what, when, if and how it will be implemented.
Brexit is imminent; yet, it is still an undiscovered territory and the effects it could render on the legal profession are somewhat ambiguous. Nevertheless, this article will attempt to uncover some of the circumstances and drawbacks it presents to the legal sector in the UK, as well as briefly explore Brexit’s impact on Israel, and Israel-UK-EU relations.
Determining Brexit’s influence on the legal sector
In March 2018, the APPG on Legal and Constitutional Affairs began an investigation determining the consequences Brexit could render on the legal services sector. They welcomed submissions from all interested parties in the form of written and oral evidence, the latter of which was heard in Parliamentary meetings. This article will accordingly highlight three main aspects on which the inquiry focused. These include: the ability and necessity of mutual market access, the significance of labour mobility, and arguably most importantly, the fundamental need for legal certainty.
Mutual Market Access
The current EU legal structure permits the mutual recognition of professional qualifications, rights of audiences throughout EU courts and the capacity to practice and establish firms in EU member states. This signifies that EU legal professionals are currently able to consult and advocate for international clientele without worrying about stringent bureaucratic limitations. They are a quick flight away from providing their services. Consequently, a post-Brexit scenario presents a range of complications for various EU jurisdictions. UK lawyers would face a loss in clientele from their European business prospects, who will likely be poached by EU firms not confined to such restrictions. Thus, it is imperative to secure a mutual market access post-Brexit, in which UK lawyers can practice in Europe and vice versa – in order to avoid dire consequences for the British legal profession.
The significance of labour mobility
The UK’s legal sector is greatly strengthened by its diverse workforce. Legal professionals practicing in the UK legal sector are from a myriad of backgrounds and ethnicities. This miscellaneous talent pool creates an assortment of opinions and viewpoints being circulated, greatly strengthening and enhancing the UK legal sector. At present, lawyers and legal professionals from other EU countries can bring their own experiences and skills to the UK and vice versa. This provides a competitive edge to the profession, only adding to its vast infrastructure. Additionally, The Law Society in the UK argued in the APPG report that despite migration being a main issue in Brexit, restrictions on the mobility of legal professionals is unlikely to preserve jobs for UK citizens, while risking the shift of that work to more accommodating jurisdictions. This fact enforces the argument that post-Brexit, the immigration system should not isolate skilled labour from the UK legal sector, nor exclude UK lawyers practicing across Europe. It has been extremely advantageous to the UK legal profession that international lawyers work for them as well as in the EU. Thus, it is crucial, that the government enforces a labour mobility structure which permits these practices.
The necessity that is: legal certainty
The UK Parliament has now rejected three separate ‘meaningful votes’ about the UK/EU withdrawal agreement in the House of Commons. Last week, Theresa May attempted, for the fourth time, to get Parliament’s approval, while simultaneously offering to hold a second referendum (if the bill was passed). This attempt was met with extreme backlash, and May subsequently announced her resignation as leader of the Conservative party effective on 7 June 2019 – a move that was a long time coming. Before May announced her departure, Brexit was expected to occur on 31 October 2019. The House of Commons would vote about whether a transition period would be implemented or not, but there would be no re-drafting of the withdrawal agreement. However, if this resulted in a deadlock, there would be no transition period until the end of 2020, and the extended employment of EU law in and to the UK would seize. Although, in light of recent events, it is unclear if May’s successor will follow through in this regard. It all depends on the successor’s stance, as well as getting the majority in Parliament to agree on an appropriate arrangement.
CILEC emphasized in the APPG report that: ‘at the point of exit and in the process of any prospective transition period, there should be absolute clarity as to what law is in effect.’ However, if this decision ends in deadlock, the UK will probably convert back to the WTO arrangements under trade in legal services. This circumstance is less than ideal and includes 31 various legal systems (depending on each EU and EFTA member state), most of which contain limitations and restrict practice rights for third country law firms.
Therefore, the need for legal certainty is the most essential component of the legal profession post-Brexit. Legal certainty is the cornerstone of the law, without which no law system can effectively function. The main instance preventing legal certainty is a no-deal outcome, which consequently means no transitional period. Legal certainty is ultimately required for lawyers to do their jobs. Additionally, UK lawyers would immediately lose the right to appear before EU courts and international clients of UK lawyers would not automatically be protected by client confidentiality. This scenario would significantly increase legal costs, undermine legal certainty and create chaos for lawyers engaging in international proceedings.
Without clear legislation, there can be no clear enforcement or practicing. Lawyers cannot practice law if they do not know what the law is. Consequently, the importance of avoiding a no-deal outcome is of optimum importance.
The impact Brexit will have on Israel
The UK and Israel’s business relations have consistently strengthened and advanced, with the UK being Israel’s third largest trade partner worldwide, and first in Europe. Recently, the UK and Israel signed a trade continuity agreement that will be implemented following Brexit. The deal allows for both countries to trade and conduct relations with one another in the same capacity as the present, without additional tariffs or obstacles. This has provided Israeli and UK businesses with some legal certainty in a post-Brexit situation.
Brexit is predicted to create the biggest change in the UK’s legal framework, yet the ultimate capacity of this change is still undetermined. Despite this huge hovering question mark, it is clear that certain factors will greatly influence the legal sector post-Brexit. These elements, provided by the APPG’s inquiry, are crucial in providing the necessary frameworks as well as mitigating any potential damage Brexit presents.