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"Unprecedented range of legal issues" from Brexit

27 June 2016

The vote by the United Kingdom electorate to leave the European Union has created an unprecedented and complex range of legal issues, the Law Society of England and Wales says.

Law Society President Jonathan Smithers says the society did not take a stance on whether Britain should leave or remain in the EU.

"That was because we are a professional body and our membership has a diverse range of views. Instead we sought to provide facts to inform the debate with a focus on the impact on legal services," he says.

"Amid all the uncertainty it's important to emphasise there is no immediate change to anyone's legal rights or obligations."

Mr Smithers says it's also important to say that the law of England and Wales retains its international commercial appeal.

"...England and Wales remains an attractive and stable jurisdiction, with a high quality legal profession, internationally respected courts and the best law firms in the world that have attracted clients from across the globe for many years."

Implications for immigration and employment law

In another statement the Law Society of England and Wales has said that the UK remains a member of the EU and EU law still applies.

The right of free movement of people also remains in effect, it says.

"For people who have already exercised their right of free movement - UK citizens living in other member states and other EU nationals living here - the longer term situation post-withdrawal is not yet clear.

"There is precedent under international law that if a person has exercised a right under an international treaty, they may continue to enjoy the benefit of that right if the treaty ends. This idea of acquired rights or vested rights would suggest that people will not be 'sent home'.

"Negotiations on the UK's future relationship with the EU's internal market will determine whether the UK will retain free movement for its own citizens and the citizens of other EU countries once it has fully withdrawn from the EU."

The Law Society says that much of UK statutory employment law has its origins in EU legislation. It says the implementation of EU legislation into domestic law means that employment law obligations and protections will not automatically fall away upon the UK's eventual withdrawal from the EU.

"In theory, following withdrawal  from the EU, the employment law protections which are guaranteed by the EU – such as minimum holiday allowances, parental leave, rights in the event of transfers of undertakings – could be removed from domestic legislation. 

"As for the Working Time Directive (WTD), the UK currently has a partial opt-out, meaning the effects on UK employers are in any case different to those of their EU counterparts.

"If, following full withdrawal from the EU, the UK were to become party to the EEA (European Economic Area) Agreement - 'the Norway option' – it would, in practical terms, remain subject to EU rules. 

"Under the terms of the agreement, EEA members agree to 'approximation of laws' relating to the internal market, meaning that EU labour law directives are effectively adopted. The same is true for health and safety legislation."

The Law Society says both Norway and Switzerland (which are not EU members) have to observe the principle of free movement of people in return for participation in the EU's internal market, whereas countries such as Chile or South Korea, with which the EU has a free trade agreement, do not.

"The only way to ensure longer term certainty on these issues, as with many others, is for them to be addressed in the withdrawal agreement between the UK and the EU," it says.

Scottish lawyers keep a close eye on things

The Law Society of Scotland says there will be no immediate change to the current legal position so solicitors' day to day practice and the advice they provide for clients won't yet be affected.

"Solicitors regularly advise their clients, whether individuals or businesses, on EU law and
policies and keep their clients informed of their rights and obligations," the Scottish Law Society says.

"For example as an employee or an employer, we are affected by the working time directive or the EU standards for parental leave. As consumers we are affected by EU food standards and those who work in industries ranging from agriculture and fisheries to telecoms and technology are also affected by
EU regulations."

The Law Society says it will closely monitor the UK Government's negotiations with the EU as they develop during the transitional period through to the implementation of the final agreement.

It says it will consider the potential impact on solicitors' businesses and practice rights, "on the domestic legislative process and on our future interaction with the EU. We will work to ensure that our members are kept informed to ensure they can properly advise their clients at every stage."

Last updated on the 16th September 2019