17 November 2018

BSB information for lawyers from the European Economic Area after Brexit

12 October 2018

The UK Government has today published the Services Technical Notice (TN). This includes a basic description of the arrangements for the regulation of legal services activities and those individuals and bodies who deliver them in the event of a "no-deal" Brexit.

The TN deals with the Mutual Recognition of Professional Qualifications (MRPQ) Regulations 2005/36/EC and the Provision of Services Regulations (2006/123/EC), and the Lawyers' Establishment Directive (98/5/EC) and the Lawyers' Services Directive (77/249/EEC) which are the current basis for the authorisation of lawyers from the EEA when practising in the UK.

For EEA lawyers (including UK nationals holding EEA qualifications) who are already established and have received a recognition decision in the UK before exit day, this recognition decision will not be affected and will remain valid (i.e. they may continue to practise as barristers.)

EEA lawyers (including UK nationals holding EEA qualifications) who have not started an application for a recognition decision in the UK before exit will be subject to future arrangements, which will be published before exit day.

EEA lawyers (including UK nationals holding EEA qualifications) who have applied for a recognition decision and are awaiting a decision on exit day will, as far as possible, be able to conclude their applications in line with the provisions of the relevant Directives.

Individuals with UK qualifications seeking recognition to offer legal services in the EEA should check the host state national policies. The EU Commission has stated that decisions on the recognition of UK qualifications in EU countries before exit day are not affected.

The TN states that Registered European Lawyer (REL) status will cease on the day the UK leaves the EU. REL status is currently available to EEA lawyers practising under their home title who have not yet transferred to the Bar under the establishment arrangements.

This means that (subject to transitional arrangements discussed below) any Registered European Lawyer currently authorised to practise in England and Wales by the BSB, or who become so authorised before 29 March 2019, will (in the event of no other "deal") need to make new arrangements to become authorised by one of the Approved Regulators to deliver "reserved legal activities" (as defined by s12 of the Legal Services Act 2007) under a relevant title in England and Wales.

If they wish to continue to be regulated by the Bar Standards Board, this will mean transferring to the Bar of England and Wales and becoming a barrister.

We anticipate transitional arrangements to facilitate this transfer for Registered European Lawyers.

A transition period will run from exit day until the end of December 2020 for existing RELs.

There will be no new REL registrations from exit day, but those who have applied for REL status before exit day, can have a decision on that application after exit day.

RELs will be able to build up experience towards the '3 years experience' route for admission to the Bar during the transition period; admission will be  subject to the lawyer concerned satisfying the BSB's requirements that all authorised persons meet the standards set out in our Professional Statement.

Any lawyer from the EEA who seeks authorisation to practise with the BSB after 29 March 2019 will need to comply with our arrangements for "foreign qualified lawyers" (subject to the transitional provisions.)

How to comply is set out in Part 4 of the BSB Handbook and further information can be found on our website. Applicants should note that the framework of Rules currently set out in Part 4 is expected to change in February 2019 as a result of reforms entirely unconnected with the departure of the UK from the EU.  The main elements of the process and the basic requirements for transfer and authorisation of foreign lawyers are not however changing substantively.

Further enquiries can be made by contacting authorisations@barstandardsboard.org.uk.

This notice will be updated in the event of agreement being reached on another position before 29 March 2019.