What the UK-EU deal means for the law

And for lawyers. But was it wise to speak of "surrender"?

The United Kingdom and the European Union have agreed a Trade and Cooperation Agreement, an Agreement on Nuclear Cooperation and an Agreement on Security Procedures for Exchanging and Protecting Classified Information.

A 34-page summary of the trade and cooperation agreement (including a few paragraphs on the other two documents) has been published by Downing Street. Introducing it, the prime minister says the agreement

changes the basis of our relationship with our European neighbours from EU law to free trade and friendly cooperation. And this ambitious agreement — carefully judged to benefit everyone — is the first the EU has ever reached allowing zero tariffs and zero quotas.

As the summary explains,

the agreement also includes provisions to support trade in services (including financial services and legal services). This will provide many UK service suppliers with legal guarantees that they will not face barriers to trade when selling into the EU and will support the mobility of UK professionals who will continue to do business across the EU. 

And it stresses that:

the agreement is based on international law, not EU law. There is no role for the European Court of Justice and no requirements for the UK to continue following EU law.

The full agreement has not yet been published. But we know that part 3 will cover cooperation on law enforcement and criminal justice.

More detail is provided later in the summary under these headings:

  • General provisions (on law enforcement and judicial cooperation)

  • Exchanges of DNA, fingerprints and vehicle registration data

  • Transfer and processing of passenger name record data

  • Cooperation on operational information (on missing people, for example)

  • Cooperation with Europol on serious crime (though not, of course, membership)

  • Cooperation with Eurojust on prosecutions (though, again, not membership)

  • Streamlined extradition agreements (the heading calls this “surrender”)

  • Mutual assistance in criminal matters (such as evidence-taking)

  • Exchange of criminal record information (for crime prevention)

  • Anti-money laundering and counter-terrorist financing prevention

  • Freezing and confiscation 

  • Suspension of cooperation

  • Dispute settlement

Part 2 of the agreement deals with trade. It includes a section on legal services. This is what the summary says, in full:

The agreement includes ground-breaking provisions on legal services that go beyond what the EU has included in any other free trade agreement to date. These measures will improve the clarity and certainty of market access for UK lawyers.

The agreement will give UK solicitors, barristers and advocates the right to advise their clients across the EU on UK and public international law using their home professional titles, except where EU Member States have placed specific limits on this activity.

Where EU Member States require UK lawyers to register in order to provide advice on UK and public international law, the agreement makes clear this cannot mean re-qualification or admission to the local legal profession. 

Those paragraphs are worded carefully. They clearly involve limitations on UK-registered lawyers who wish to practise in Europe. UK lawyers who have obtained qualifications from EU member states — such as Ireland — were wise to do so.

In addition, the Ministry of Justice has updated its advice for

These documents were first published on 30 January.

We await the full terms of the agreements — particularly the one on trade and cooperation. As lawyers know, the devil is in the detail.