A Brexit deal that mirrors the free trade agreement (FTA) Canada has with the EU would be equivalent to a ‘no deal’ outcome for legal services, the Law Society warned today.
It would also exclude issues such as co-operation in civil and criminal justice matters, mutual legal assistance or recognition and enforcement of judgments, or data protection.
Chancery Lane argues that including legal services in any new agreement is crucial, in a paper published today, Blind spot – how CETA overlooks legal services.
Law Society president Joe Egan said: “We know that leaving the EU will result in some barriers to trade and movement being re-imposed on Britain if we leave the single market.
“We also know that in all but one of its FTAs with non-EU states, the EU27 has not opened up its legal services markets. Yet even this exception – the deal with South Korea – is much more restrictive than we would choose, leaving it to EU states to decide whether to open their markets.
“So, as the government forges its negotiating position, we are urging them to ensure that mutual market access is at the heart of any post-Brexit deal.”
The society said the Canadian FTA – the Comprehensive Economic and Trade Agreement (CETA) – has useful provisions for services, such as provisions on intra-corporate transferees or mutual recognition of qualifications agreements, but does not provide for the mutual market access for legal services that lawyers from England and Wales currently enjoy.
Mr Egan said: “A CETA-type FTA would be equivalent to a ‘no deal’ outcome for legal services on market access. We believe including legal services is vital as the solicitor profession is fundamental to helping citizens and businesses adjust to a post-EU era.”
The report said that in most bilateral and plurilateral agreements in recent years, the EU has limited the provision of legal services by foreign legal consultants.
Under these agreements, foreign legal consultants can only practise in their home country law and public international law, not EU law or host country law.
The society said the EU has also proven difficult on temporary provision of legal services, known as ‘fly in, fly out’.
The EU-South Korea FTA allows law firms established in the EU to establish a commercial presence in Korea, share profits with Korean law firms and/or form joint ventures with firms in South Korea.
Also, lawyers qualified in an EU member state can provide advisory services in their home state law and public international law.
However, it is still up to each EU member state to provide legislation allowing for the provision of these services.
The paper also cautions against optimism that a UK-USA FTA would liberalise services.
It said: “The USA has never put financial services, and very rarely any other service sectors, up for negotiation in its FTAs.
“We would highlight the experience of the now dormant Transatlantic Trade and Investment Partnership (TTIP) negotiations, where even the collective bargaining power of the EU was not enough to persuade the USA to compromise on services access in this agreement.
“In addition, any agreement with the USA involving legal services would be unlikely to bind individual states where the legal profession is regulated domestically at state level and, in most cases, by the judiciary.”