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UK and Belgian bars sign agreement as concerns mount for the profession in no-deal Brexit

The Brussels Bar and four other legal professional bodies will lobby the Belgian government to ensure UK lawyers don’t lose their right of audience in the country’s courts in the event of a no-deal Brexit, according to a memorandum of understanding signed this week.

The move comes as a report published today (4 October) stated that a no-deal exit at the end of the month would result in an ‘irreducible amount of legal uncertainty’ that would be bad for both UK business and the rule of law. 

The Law Society of England and Wales was one of six UK signatories of the bilateral agreement on Tuesday (2 October) with the aim of preventing any new barriers for UK lawyers practising in Belgium and Belgian lawyers practising in the UK.

With the prospect of a no-deal UK exit on 31 October a concrete possibility, UK lawyers risk losing their right of audience in Belgian courts and legal privilege alongside their EU citizenship when the UK leaves the bloc.

According to the document signed this week, the Belgian professional bodies will put pressure on Belgian law makers to ensure grandfathering measures for UK lawyers currently operating in the country. Their UK counterparts will lobby the British government against any barrier for Belgian lawyers operating in the country.

A law passed in Belgium in March 2018 stated UK lawyers currently operating in Belgium will keep their existing rights, but only during a transition period that will end no later than December 2020.

The 11 signatories will also set up a common advisory board meeting regularly to assess progress and address future issues.

President of the Law Society of England and Wales Simon Davies described this week’s agreement as a ‘step in the right direction’, adding: ‘We hope to reach similar understandings – and then agreements – with the other members of the EU and European Free Trade Area.’

The Law Societies of Scotland and Northern Ireland, the Bar Councils of England and Wales and Northern Ireland and the Faculty of Advocates were the other UK signatories. The five Belgian signatories were the Dutch-speaking and French-speaking sections of the Brussels Bar, as well as the Dutch French and German-speaking Federal bars.

This is the latest development in efforts by the Law Society and a number of UK law firms to have contingency plans in place to continue operating in continental Europe should the UK leave the bloc without a deal in less than four weeks.

At stake for the legal industry is the principle of mutual recognition – by which EU, European Economic Area countries and Switzerland retain control over their domestic regulation on the provision of legal services while recognising those of the other member states. Leaving without a deal means UK lawyers and law firms would be treated as a third country, unless bilateral agreements are signed with the relevant bodies of 31 different jurisdictions.

The agreement with Belgium comes as concerns mount over the future of English law in the event of a no-deal Brexit.

A report by the Bingham Centre for the Rule of Law published today states that a no-deal exit risks jeopardising legal certainty, clarity and democratic scrutiny of the law-making process.

The report was based on 17 interviews with members of the Bingham Centre for the Rule of Law, which include Anglo American, HSBC, Unilever and Shell.

Speaking to Legal Business, report author Nyasha Weinberg said that the fact that the UK government was pushing through legislation ‘at great haste’ in preparation for exit day had resulted in a reduction of parliamentary scrutiny, with considerable impact on the rule of law.

‘What has not necessarily been understood is the extent to which the search for certainty [by businesses] is connected to the rule of law,’ said Weinberg.

Referring to last week’s Supreme Court ruling that Prime Minister Boris Johnson’s decision to suspend Parliament was unlawful, she added: ‘The recent constitutional upheaval has created a wider series of questions over the predictability of English law. The tensions between the executive, Parliament and the judiciary created an environment where companies might think twice about investing in the UK as a result of a less predictable behaviour by the executive.’

She also pointed to the fact that clarity was still lacking around the enforcement of judgments by UK courts post-Brexit, meaning ‘organisations wanting judgments enforced might pick other jurisdictions.’

‘What businesses were saying two years ago is what they are saying today, the difference is that the no-deal exit could happen in a few weeks and none of the government’s preparation is sufficient.’

For more on UK law firm’s contingency plans for a no-deal Brexit, see ‘Dealing with no deal – Can top law firms cope with a chaotic Brexit?’ (£)