Governments Technical Notice on the impact of a no deal EU exit scenario on EU lawyers practising in the UK

Government's Technical Notice on the impact of a 'no deal' EU exit scenario on EU lawyers practising in the UK

Issued on 12 October 2018 | Updated 10 April 2019

Status

This Guidance does not form part of the SRA Handbook. It is intended to explain some of the implications of a 'no-deal' EU exit, particularly for Registered European Lawyers and firms they work in, should this happen.

Who is this guidance for?

Registered European lawyers (RELs), European lawyers, law firms and other interested parties.

Purpose of this guidance

In response to the Technical Notice and Statutory Instruments (SIs) published by the government, this guidance sets out the potential impact on RELs, other European lawyers and law firms of a 'no deal' EU exit and future options. This guidance is not intended to provide definitive answers on the impact of EU exit on legal services, as this will depend on the outcome of the negotiations between the UK government and the EU.

General

On 12 October 2018 the Government published a Technical Notice (setting out its approach regarding the impact of a 'no deal' EU exit scenario on EEA lawyers practising in the UK, provision of services and mutual recognition of professional qualifications. The Government laid three SIs to deal with this scenario, all of which were approved by Parliament and will become law in the event of a 'no deal' EU exit.

The Government has stressed that the publication of the Notice does not mean that a 'no deal' scenario is the most likely. They are taking steps to prepare for all potential outcomes, including preparing for a no deal scenario.

We will continue to work cooperatively with the Government and interested parties to make sure that whatever the outcome of the negotiations, any changes are implemented as effectively and smoothly as possible both for the profession and the people who use the services of RELs.

This note is published in response to the Technical Notice and SIs and does not cover European lawyers' rights to remain in the UK, or English and Welsh solicitors' rights to practise in the EU, after EU exit.

Legislative impact of a no deal EU exit

The Technical Notice states that a no deal EU exit will lead, on exit day, to the removal of EU law and domestic legislation which creates a separate regime for the free movement and provision of services of lawyers in the EU, compared to that of other foreign lawyers.

This legislation governs the rights for EEA lawyers to provide legal services on a temporary and permanent basis (including restricted or 'reserved' legal services), to own and manage legal businesses and to be admitted as solicitors of England and Wales. The SIs laid by the Government and approved by Parliament:

  • revoke the legislation that grant these rights and sets out the transitional arrangements that will apply in a 'no deal' exit scenario;
  • deal specifically with the arrangements made with Switzerland in relation to these issues; and
  • make amendments to the arrangements for the recognition of professional qualifications.

These changes will be necessary in a 'no deal' scenario to make sure the UK conforms to the World Trade Organisation (WTO) rules, which do not allow for preferential treatment of one nation over another. This will require changes to the existing regulatory regime because it gives more extensive rights to EEA lawyers than to other foreign lawyers.

Some of the rights currently available to EEA lawyers are already available to wider non-EU foreign lawyers under the Registered foreign lawyers (RFLs) regime, which will continue to exist post-EU exit. (See below and the table in Q4 for more detail on this).

What will this mean?

The Technical Notice tells us that there will be implications for RELs, law firms that employ RELs and anyone providing legal services across the UK/EU border in a 'no-deal' EU exit scenario.

The SI relating to the services of lawyers and their practice will introduce transitional arrangements to the effect that:

  • those who have registered with us as RELs on exit day will be able to continue to practice as RELs until the end of December 2020.
  • there will be no new registrations of EEA lawyers as RELs from exit day, but those who have made an application to us for REL status before exit day, can have a decision on that application after exit day and, if granted, continue to practice as an REL until the end of December 2020.
  • RELs will, subject to meeting the eligibility criteria, be able to seek admittance into the solicitor's profession under the 3-year 'integration route' during the transition period.

As one of the designated regulators of EEA lawyers (as RELs), if there is no deal, we will be responsible for ensuring the orderly removal of the REL regime and other EU legal services rules that affect the way we regulate, in accordance with the arrangements above.

The Government has made separate arrangements in relation to Switzerland which differ from those for EEA lawyers in a number of ways. The period in which Swiss lawyers (as defined in the relevant SI) who are registered as RELs on exit day may continue to be RELs is four years after exit day. All references to the end of December 2020 which follow in this guidance for EEA lawyers should be read in relation to Swiss lawyers as the end of this period. Also, Swiss lawyers will be able to continue to apply to register as a new REL in that period.

Impact on existing RELs

Currently EEA lawyers who intend to permanently practise under their home state professional title in England and Wales must register with us or another competent authority as an REL. This registration gives RELs certain rights and creates certain obligations. For example, RELs have equivalent practice rights (with limited exceptions) to those of an admitted solicitor of England and Wales.

A 'no-deal' EU exit means that we will not accept any applications to become an REL post-exit day other than from Swiss lawyers. EEA lawyers who wish to practice in the UK but have not applied to become RELs by that day can see below for more detail on the options available to foreign lawyers.

What are the future options for EEA lawyers?

If you are registered as an REL on exit day you will be able to continue your practice as before until the end of December 2020.

If after that time you wish to manage or own a law firm which is not an Alternative Business Structure (ABS) in England and Wales, or offer reserved legal services within England or Wales, you will potentially have three choices:

  • Apply for admission as a solicitor under the 3-year 'integration route' before the end of December 2020 (this is only available to RELs).
  • Qualify as a solicitor under the Qualified Lawyers Transfer Scheme (QLTS).
  • Register as a Registered Foreign Lawyer (RFL) (although an RFL has much more restricted practising rights).

However, outside of this, you may provide unreserved legal services or be involved in businesses providing legal services in England and Wales under your home title without registering with a regulator.1 If you are in any doubt about what you are able to do, please contact our Professional Ethics helpline for advice.

Integration Route

RELs who have accumulated three years continuous practice in English and Welsh law (including Community law) can (subject to eligibility criteria) apply for admission as a solicitor within England and Wales under the 'integration route'.

There are no examination requirements. Applications usually take three months to process with a £500 application fee. We will do what we can to make sure the application process is as efficient as possible. We encourage any RELs who meet the admission criteria and who wish to be admitted as solicitors to apply to us as soon as possible. For more information on how to apply and eligibility criteria.

Qualification under QLTS

The Qualified Lawyers Transfer Scheme (QLTS) helps foreign lawyers become qualified as solicitors of England and Wales, if they are already a qualified lawyer in one of our recognised jurisdictions. For our list of recognised jurisdictions and what may constitute a qualified lawyer for these purposes.

Foreign lawyers can apply for an exemption from the first part of the QLTS if they have passed the Legal Practice Course (LPC).

In the future (from Autumn 2021) the QLTS will be replaced through the introduction of the new Solicitors Qualifying Examination (SQE). When this comes in, all qualified foreign lawyers will potentially be able to apply for exemptions from all, or part, of the SQE requirements where their home qualifications are equivalent in content and standard to those we require of English and Welsh Solicitors.

The Government has amended the regulations relating to recognition of professional qualifications which will take effect in the event of a no deal Brexit. We have made amendments to our regulations which will come into effect on any 'no deal' exit day. In line with the SQE, all qualified foreign lawyers will potentially be able to apply for exemptions from all or the whole of parts 1 and 2 of the QLTS. Exemptions will not be granted topic by topic other than to UK lawyers. However, any applications for exemptions made by EEA lawyers before exit day will be dealt with under the existing rules and exemptions granted before that day will continue to apply. See our separate press release and related materials on the changes to our regulations.

Registered foreign lawyers (RFLs)

Any EEA lawyer who has not registered as an REL or qualified as a solicitor but wants to be involved in the management or ownership of a law firm (which is not an ABS) in England and Wales or work in partnership with solicitors will have to register as a Registered Foreign Lawyer (RFL).

Being an RFL also gives limited additional practice rights.2

However, in general terms for an EEA lawyer who is not an REL to be able to do reserved work other than under supervision, they will have to qualify as a solicitor of England and Wales (or other regulated profession).

Further, an REL can presently practise here as a recognised sole practitioner. Following removal of the REL regime they will no longer be able to practise in this way. They either must qualify as a solicitor or arrange to close down their practice.

Fly-in/ Fly-out rights

EEA lawyers currently have specific rights to provide reserved legal services (with some restrictions) on a "fly in/fly out basis".3 This allows lawyers who are authorised members of a profession in another EU Member State to provide services across borders within the EU on a temporary basis, under their home-country professional title. In the event of a no-deal EU exit, these specific limited rights, to provide reserved legal services, will cease on exit day. The removal of the fly in/fly out rights should not affect EEA lawyers' ability to come here and provide non-reserved legal services on a temporary basis.

The separate arrangements for Switzerland means that the fly in/fly out rights of certain specified European lawyers will continue for five years after exit day.

Firms are advised to consider their arrangements and take the necessary steps to make sure that they comply with the new regime so that, for example clients are not left without adequate representation on exit day.

Questions and answers

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Further help

If you require any further assistance, please contact the Professional Ethics helpline.

  1. For the detail see Rule 3 of the SRA Practice Framework Rules 2011
  2. See rule 8.4 of the SRA Practice Framework Rules 2011
  3. The Lawyers Services Directive (77/249/EC)
  4. For the detail see Rule 3 of the SRA Practice Framework Rules 2011
  5. See rule 8.4 of the SRA Practice Framework Rules 2011