Legal Professionals Guidance – Brexit

1. Overview

Leaving the EU with a deal remains the Government’s top priority. This has not changed.

However, a responsible government must plan for every eventuality, including a no deal scenario. If the UK leaves the EU without a deal on 29 March 2019 (may also apply to new exit date on 31 December 2020), there will be no system of reciprocal arrangements under which UK lawyers can provide regulated legal services in the EU, or by which EU lawyers can provide regulated legal services in the UK.

UK lawyers working in the EU and EU lawyers working in the UK should now take steps to make sure that they can continue to practise after exit day, should the UK leave the EU without a deal.

2. UK lawyers practising in the EU, Norway, Iceland or Liechtenstein

2.1 If you are using UK qualifications or professional titles

We expect that UK lawyers working in the EU and in Iceland, Liechtenstein or Norway under UK qualifications and professional titles will become subject to the same rules as other third country (non-EU) lawyers in the state in which they are working.

UK lawyers working in the EU, Iceland, Liechtenstein or Norway should contact the relevant regulator in the country they are working in for advice. UK regulators (see Further information) will also be able to offer advice.

2.2 If you are using an EU qualification and professional title

On 21 June 2018, the EU Commission published a preparedness notice on professional qualifications. That notice outlined that lawyers who have transferred into an EU country profession through the provisions set out in the EU Mutual Recognition of Professional Qualifications Directive by exit day would continue to have their qualification recognised and would be able to continue to practise should the UK leave the EU without a deal.

The notice did not deal with the recognition of qualifications under the Lawyers Establishment Directive.

UK lawyers practising in the EU using an EU qualification and professional title should contact their local regulator in the EU country in which they are working for specific advice.

The UK- EEA EFTA (European Economic Area-European Free Trade Area) state Separation Agreement allows UK lawyers resident in Norway, Iceland and Liechtenstein, who have joined the host state profession, to continue to practise in the state where they reside, subject to the regulatory rules of that state.

The Separation Agreement also allows lawyers who have submitted an application to join a host state profession, before exit day, to get a decision from the competent authority on that application after the end of the implementation period and, should they be admitted to the host state profession, to continue to practise in that host state.

UK lawyers practising in Norway, Iceland or Liechtenstein using EU qualification and professional title should contact their local regulator in the state in which they are working for specific advice.

3. Legal services business owners with UK qualifications in the EU and EEA-EFTA states

UK lawyers with ownership interests in the EU and EEA EFTA should contact their regulator for specific advice.

4. EU, Norway, Iceland and Liechtenstein lawyers practising in England and Wales or Northern Ireland

4.1 If you are practising in England and Wales or Northern Ireland under English/Welsh or Northern Irish qualifications/professional title

EU, Norway, Iceland, Liechtenstein and Switzerland lawyers who have joined the English and Welsh or Northern Irish profession, or who have applied to join by exit day, should they be successful, will be able to retain their qualification and related practice rights. This applies to those who have:

been admitted through a transfer test, for example using rights provided under the EU Mutual Recognition of Professional Qualifications Directive
been admitted through the ‘3 years’ experience’ route under the Lawyers Establishment Directive

4.2 If you are practising under EU, Norway, Iceland or Liechtenstein qualification and professional title

There will be no system of reciprocal arrangements under which EU lawyers and those from Iceland, Liechtenstein and Norway can provide regulated legal services in the UK under their home state qualification and title. EU, Norway, Iceland and Liechtenstein lawyers working in England and Wales or Northern Ireland will be subject to the same rules as other third country lawyers seeking to provide regulated legal services.

A transition period will allow Registered European Lawyers (RELs), who are registered with the relevant competent authority or who have applied to register, by exit day, to retain their pre-exit practice and qualification rights until the end of December 2020. They may requalify as a UK lawyer, under existing routes until the end of the transition period, or under routes for third country lawyers after this time. Alternatively, they may undertake unreserved activities or own unregulated legal businesses, or work under a UK lawyer’s supervision.

The UK will ensure that professionals arriving in the UK from the EU, Norway, Iceland and Liechtenstein after exit day, with EU/EEA-EFTA qualifications, will have a means to seek recognition of their qualifications. The government has prepared separate legislation to update the Recognition of Professional Qualifications Regulations. This will bring a new system into force on exit day and will include lawyers. For more information, please see guidance for regulatory bodies on mutual recognition of professional qualifications.

Lawyers from the EU, Norway, Iceland and Liechtenstein, working in England and Wales, and Northern Ireland should contact their relevant UK regulator for advice.

5. Legal services business owners with EU or EEA-EFTA qualifications in England and Wales or Northern Ireland

Ownership interests of regulated legal services firms for Registered European Lawyers (RELs) may be affected. RELs who own or part own regulated legal services firms in England and Wales and/or Northern Ireland should contact their relevant UK regulator for further information.

A transition period will allow RELs who have registered by exit day, or who are in the process of registering by exit day, to retain their pre-exit practice and ownership rights up to the end of December 2020 so that they can requalify in England and Wales or Northern Ireland, become Registered Foreign Lawyers, or make the necessary changes to their practice or business structure to comply with the new regulatory arrangements.

EU and EEA-EFTA qualified lawyers with ownership interests in legal businesses in England and Wales (held by virtue of being EU and EEA-EFTA lawyers) will also have the transitional period to make changes to their regulatory status or business structure in order to retain their ownership interests.

EU and EEA-EFTA businesses in England and Wales or Northern Ireland employing EU, and/or EEA-EFTA lawyers should contact their relevant UK regulator for advice.

6. UK- EEA EFTA (Norway, Iceland and Liechtenstein) Separation Agreement and the Swiss Citizens’ Rights Agreement

The UK has reached separation agreements with Iceland, Liechtenstein and Norway, and with Switzerland, to address separation issues including specific arrangements for the recognition of professional qualifications and provision of legal services for these countries’ nationals.

These separation agreements will apply in a no deal exit from the EU. In a no deal exit there will not be an implementation period and the UK- EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement will come into force on exit day.

In relation to arrangements for the recognition of professional qualifications and the provision of legal services, the agreement with Iceland, Liechtenstein and Norwaymirrors that of the UK-EU Withdrawal Agreement.

Read more about the UK- EEA EFTA State separation agreement.

The Swiss Citizens’ Rights Agreement differs to that of the UK-EU Withdrawal Agreement, with additional arrangements for the provision of legal services.

UK lawyers registered and working in Switzerland on a permanent basis under their home professional title before exit day will continue to be able to practise as they do now, provided they remain registered in Switzerland.

UK lawyers who have transferred to the Swiss professional title before exit day will continue to be recognised and will continue to be able to practise as they do now, provided they remain registered in Switzerland.

UK lawyers have a 4-year period from exit day to register, or to start their application to register, to work in Switzerland under their UK professional title on a permanent basis. UK lawyers also have a 4-year period from exit day to transfer, or start the application to transfer, to the Swiss professional title. This 4-year period also applies to UK citizens who have started but not yet completed their legal professional qualification as of exit day, but finish it before the end of the 4-year period.

Similarly, Swiss lawyers registered and working in the UK, or who have transferred to a UK professional title, before exit day, will be able to continue to practise as they do now (under home title, or continuing to be recognised) provided they remain registered in the UK. Swiss lawyers, or those in the process of qualifying, as above, have the same 4-year period from exit day to register or transfer, or start their application to register or transfer.

Read more information on the UK-Switzerland Separation Agreement.

Further information will be provided on specific provisions in due course.

7. Scotland

As this is a devolved matter, the Scottish Government is legislating separately and under similar terms. Scottish regulatory arrangements for EU and third country lawyers are different to those in England and Wales or Northern Ireland. Further information regarding these arrangements can be found with relevant Scottish regulators (see Further information).

8. Further information

8.1 UK Government technical notices

Further information about changes as a result of the UK leaving the EU without a withdrawal agreement can be found in the Government’s technical notices, the following will be of particular interest to legal professionals:

8.2 EU Commission Preparedness Notice

The EU Commission published a number of ‘Preparedness Notices’ setting out changes in a number of areas should the UK leave the EU without a withdrawal agreement. One of these was on the recognition of professional qualifications.

On 27 November 2018, the Commission also published a Brexit preparedness seminaron professional qualifications, intellectual property, civil justice, company law, consumer protection and personal data.