In the post I published on 24 December, I outlined some of the provisions in the EU-UK Trade and Cooperation Agreement that would be of particular interest to lawyers. My post was based on a summary of the agreement published by the UK government that evening.
The document runs to 1246 pages and, inevitably, it contains a great deal that I have not seen reported in the mainstream press. Readers will learn much more from blogs by specialists such as David Allen Green. He, in turn, refers to an excellent analysis by the Institute for Government: the links to the left of its landing page provide further commentary and I have quoted some of it in this piece.
Perhaps inevitably, the UK is leaving one bureaucracy for a new one. There is to be a new partnership council, meeting alternately in Brussels and London. It will be co-chaired by a member of the European Commission and a UK cabinet minister. There will be a number of committees (including one on intellectual property and another on law enforcement and judicial cooperation). It will have working groups. There may be a partnership assembly comprising members of the European parliament and the UK parliament. There is to be a civil society forum. And so on.
As you would expect from an agreement drawn up in 2020, it allows for the partnership council to meet virtually. All EU languages will be official languages of the partnership council. But the working language will be English.
Law enforcement and judicial cooperation
Part 3 of the agreement, which begins on page 282, deals with law enforcement and judicial cooperation in criminal matters between the UK and EU member states. It contains an interesting provision allowing the UK to withdraw cooperation from a member state that “ceases to participate in, or enjoy rights under, provisions of [EU] law relating to law enforcement and judicial cooperation in criminal matters analogous to any of the relevant provisions of [Part 3]”.
Exactly what this means is not immediately obvious. Maybe the UK will no longer need to cooperate with countries such as Poland and Hungary if the EU decides to exclude them from its internal cooperation arrangements, perhaps for breaching the EU charter on fundamental rights
If the UK gives notice under this provision, the specialised committee on law enforcement and judicial cooperation must meet. The EU and the UK must protect any personal data that was exchanged before cooperation was withdrawn.
Under the European arrest warrant scheme, the UK could request the arrest of any suspect in another EU state. A pared-down version of that scheme has been included in the EU-UK agreement. It begins by insisting on proportionality: states should not use the new arrest warrant to detain suspects for lengthy periods before trial if they are not likely to be imprisoned.
There is also an important exception to deal with the fact that, unlike the UK, some states refuse to extradite their own nationals. In those circumstances, the EU must notify the specialised committee. If a suspect cannot be extradited for that reason, the state concerned must consider bringing its own prosecution. If it decides not to, it should explain its reasons to the suspect’s victims.
Another exception would allow an EU state to refuse to extradite a suspect facing a “whole life” sentence in the UK for an offence such as murder. The UK would have to promise a review after 20 years or clemency, nether of which are currently within the government’s gift.
The Institute for Government comments:
The agreement on surrender means that the UK and the EU will not have to rely on the much more cumbersome 1957 European Convention on Extradition. It is similar to the EU’s surrender agreement with Norway and Iceland —although that agreement took more than 10 years to negotiate
A section on legal services leaps off the page — if you happen to be reading section 7 of chapter 5 of title II of part 2 (which begins on page 113). This outlines the circumstances in which a party to the agreement (either the EU or the UK) must allow a lawyer who comes from the other party to supply “designated legal services” in the first party’s territory under the professional title used in the lawyer’s home jurisdiction
Designated legal services “means legal services in relation to home jurisdiction law and public international law, excluding [EU] law”. But EU law is part of the home jurisdiction law of lawyers from EU states. So EU lawyers can use their professional titles when giving advice on EU law in the UK but UK-registered solicitors, barristers or advocates practising in the EU as may not be allowed to give advice on EU law — or on the law of the EU country in which they are working.
The Institute for Government comments:
Even if [UK lawyers] are advising on UK law, they may be subject to particular rules. For example, in the Czech Republic, UK lawyers will have to be resident to provide legal advice, while across the border in Austria they are specifically prohibited from being resident and must provide legal advice on a cross-border basis. Many of the EU’s member states will prohibit UK lawyers from any ownership or control of law firms in their countries.
In some member states, UK lawyers will be able to fly in, provide legal advice, and fly out again without work permits. In others, this will be subject to an economic need test.
Perhaps the most important issue for UK lawyers serving EU clients — whether judgments of UK courts will be enforceable in the EU — is not dealt with in the agreement at all.
That’s true — although there’s a provision on page 380 that says “decisions adopted by the European Commission imposing a pecuniary obligation on legal or natural persons other than states in relation to any claims stemming from Union programmes, activities, actions or projects shall be enforceable in the United Kingdom”. And the same applies to “judgments and orders of the Court of Justice of the European Union delivered in application of an arbitration clause contained in a contract or agreement in relation to Union programmes”.
The agreement comes into force next Friday, assuming that both sides have completed their respective internal requirements and procedures by then.
Implementation of the agreement will be reviewed by the parties every five years. But that does not mean the agreement itself will be up for amendment or renegotiation — unless that’s what the parties agree to. The agreement will have to be amended when other countries join the EU.
It can also be ended by either side on a year’s notice. And then we could start the whole thing again.