Written evidence from The Law Society of Scotland

Introduction

The Law Society of Scotland is the professional body for over 11,000 Scottish solicitors.

With our overarching objective of leading legal excellence, we strive to excel and to be a world-class professional body, understanding and serving the needs of our members and the public. We set and uphold standards to ensure the provision of excellent legal services and ensure the public can have confidence in Scotland’s solicitor profession

We have a statutory duty to work in the public interest,[1] a duty which we are strongly committed to achieving through our work to promote a strong, varied and effective solicitor profession working in the interests of the public and protecting and promoting the rule of law. We seek to influence the creation of a fairer and more just society through our active engagement with the Scottish and United Kingdom governments, parliaments, wider stakeholders and our membership.

We welcome the opportunity to respond to this Inquiry on the implications of Brexit for the justice system.

General Comments

The UK’s exit from the EU will have economic, financial, legal, social, and cultural impacts, which will affect every person living in the UK, and has as much potential to affect people living in the EU, in some ways which are known and understood and in other ways which are currently unpredictable. The change will have depth, breadth and far reaching effect for the immediate future and for years to come.

We support the UK Government’s decision to maintain consistency and stability in the law. Maintaining stability and repealing and preparing legislation to fill in gaps arising from leaving the EU will comprise a significant part of the domestic legislation for some years to come. The UK Government’s policy objective should be to retain existing EU law at point of exit and then repeal or amend in the post-exit period when there is more time for consultation and proper scrutiny by the UK Parliament, the Scottish Parliament, and the Welsh and Northern Ireland Assemblies.

Whole of Government

The negotiations with the EU will be a pan-government task because of scope of EU Law as it applies throughout the UK. In this context “Whole of Government” [2] should include not only the UK Government and Whitehall Ministries but also the Scottish Government, the Northern Ireland Executive and the Welsh Government. It is crucially important that communications between UK Ministers and the devolved administrators are as transparent as possible. Whitehall departments must be fully appraised of the considerations of importance to the devolved administrations, and be fully cooperative with the devolved administrations, the Scottish Parliament and the Welsh and Northern Ireland Assemblies.

Criminal Justice

The area of freedom, security and justice covers policy areas from the management of the EU’s external borders to judicial co-operation in civil and criminal matters and police co-operation. This includes asylum and immigration policies and the fight against crime, terrorism, trafficking, and sexual exploitation of children. The UK retained an opt-in under the Amsterdam Treaty 1997 and has opted into (or in the Schengen-related measures has not opted out of) measures including the European Arrest Warrant (EAW). We advocate that we should maintain such aspects of the area of freedom, security and justice as part of the withdrawal agreement or as part of the future relationship with the EU. The primary objective of judicial security and police cooperation is the safety of the citizen. As a guiding principle there should be no change to the law which would prejudice the safety and security of the individual. 

Options for change

EU measures have been developed to deal with cross-border situations, e.g. where it is suspected a criminal organisation is operating in several EU countries, or that a suspected criminal is hiding in a different EU country. EU law and policy in this area is intended to facilitate dialogue and action between criminal justice authorities. We set out below a number of examples illustrating the need to maintain access to EU databases, information exchange systems, agencies and cross-border co-operation frameworks: -

1. Access to agencies

As an EU Member State the UK enjoys access to agencies such as Eurojust, the European Police Office (EUROPOL), the European Police College, the EU Agency for Fundamental Rights, and the European Network and Information Security Agency. The agencies participate in the EU-wide investigation of crime and subsequent prosecution by way of data sharing measures, identifying whereabouts of a suspect, and the obtaining of an EAW.

The UK Government should as part of the negotiations consider giving priority to maintaining access to all agencies. In addition it would be desirable for the UK to retain influence over the policies and activities of those organisations.

The ability to share information quickly and co-ordinate operations with other law enforcement agencies through Europol is key to detecting, disrupting and detaining criminals across borders.

2. Schengen Information System (SIS)

The SIS facilitates the real-time sharing of information and alerts between the relevant authorities in participating countries, and operates in all of the Schengen Area States.[3] Special conditions exist for EU members like the UK which are not part of the Schengen Area.[4] The UK has access to SIS which allows the UK to exchange information with Schengen countries for the purposes of cooperating on law enforcement.[5] SIS has been implemented by a Regulation[6] and Council Decision[7]. 

The UK has full access to SIS for criminal justice and law enforcement. For example, specific alerts are available for persons wanted for arrest for extradition; missing persons; witnesses or absconders or subjects of criminal judgments. Access to SIS means access to all information on live EAWs, and information about previous convictions of offenders from other Member States.

We understand that some non-EU member states, such as Norway, participate in SIS. The UK Government should consider continued access to SIS, particularly if an EAW style framework for extradition to and from EU Member States is agreed as part of the negotiations.

3. The European Arrest Warrant (EAW)

The EAW has replaced extradition procedures within the EU. Judicial procedures apply to surrender people for a criminal prosecution or executing a custodial sentence. Following withdrawal from the EU, without the mutual recognition between EU Member States that underpins the EAW, extradition proceedings will be more expensive, complex and lengthy and would require a new treaty to underpin any alternative arrangements.

Recently published figures show that between 2011 and May 2016 there were 48 extraditions to Scotland pursuant to EAWs, and 49 EWAs issued by Scotland.[8]

In terms of options for re-establishing mutual recognition in criminal matters with EU states following a UK exit, one option is reversion to the European Convention on Extradition 1957[9] (“ECE 1957”). This is likely to result in increased burden for all agencies of the criminal justice system having to operate on a more cumbersome extradition process resulting in a high probability of delay and the possibility of less applications being made and processed.

In 2012, the UK Government made a positive decision to opt into the EAW framework. At the time the Home Secretary outlined some reasons in support of the decision to opt-into the framework,[10] e.g. it being a streamlined process making it easier to bring criminals back to the UK to face trial or serve sentences. We believe those reasons for opting into the EAW remain sound and the UK Government should consider an approach which avoids disengagement from the EAW process, particularly if alternative options could have a detrimental effect on the administration of justice. There should be no change to the law which would prejudice the safety and security of the individual.

4. The European Investigation Order (EIO)

The UK Government should prioritise the implementation of the directive[11] regarding the European Investigation Order in respect of criminal matters. The UK Government opted-in to this measure and the timescale for transposition into domestic law expires in May 2017. The directive allows member states to carry out investigative measures at the request of another member state on the basis of mutual recognition. These investigative measures could include interviewing witnesses, obtaining information or evidence already in the possession of the executing authority, and (with safeguards) interception of telecommunications.

5. Criminal procedure

The EU published a ‘roadmap’ on procedural rights in 2009 to ensure that the basic rights of suspects and accused persons are sufficiently protected[12]. A number of measures followed with proposals to further strengthen procedural safeguards for citizens in criminal proceedings. Of those measures, the UK opted into and transposed the Directives on the Right to Interpretation and Translation in Criminal Proceedings[13] and the Right to information in Criminal Proceedings[14].

The Government made positive decisions to opt-into both Directives. We believe that the rationale for opting into these measures remain, notwithstanding the vote to leave the EU, therefore the Government should avoid any proposal which results in a reversal or erosion of the opt-in and diminishes the right of the individual.

Civil Justice

Within the EU, there is an almost complete legal framework for choice of law, jurisdiction and recognition and enforcement of judgments in civil and commercial matters. This framework aims to facilitate the recognition and enforcement of judgments reached by EU member states' courts, to achieve free movement of judgments,[15] create rules for jurisdiction and choice of law,[16] and provide common rules relating to evidence and service of documents.[17]

All of these issues are important in cross-border matters, and will continue to be relevant after leaving the EU. The UK will need to negotiate continued participation or develop alternative frameworks for judicial cooperation across Europe.

Keeping the Brussels I system

One option is for the UK to negotiate to include the Brussels I framework on recognition and enforcement of judgments in civil and commercial matters as part of the new relationship with the EU. This could also include the Service of Documents and Taking of Evidence Regulations.

A possible model for this type of relationship could be Danish Protocol.[18] The Danish Protocol extends the application of the Brussels I framework to Denmark, but creates effects only under international law and does not form part of the EU acquis in Denmark.

Lugano Convention

Another option is joining the Lugano Convention. The Lugano Convention provides an almost parallel system of recognition and enforcement of judgments in civil and commercial matters to the Brussels I Regulation. It applies between the EU and EFTA, and is open to the EFTA states and any other states that are invited to join.

Key differences between the Lugano Convention and Brussels I include:

• Priority to exclusive choice of agreements – Under the Lugano Convention, if there are parallel proceedings opened in different member states, no other court can act until the first court first seised has determined whether it has jurisdiction. The Brussels I rules allow for a court second seised to continue with the case where the parties have made an exclusive choice of court agreement.
• Ease of recognition and enforcement of judgments - The Brussels I rules help to make the recognition and enforcement of judgments almost automatic. This increases the speed and certainty of judgments. Under the Lugano Convention, there is a need for a first recognition process at the courts of the member state seeking recognition and enforcement. However, this is largely symbolic. 

The Hague Conference on Private International Law

The Hague Conference on Private International Law is a global organisation for cross-border cooperation in civil and commercial matters. The Conference has negotiated several agreements on the recognition and enforcement of judgments.

There is a 1971 convention on the recognition and enforcement of civil and commercial judgments, however, this has only been ratified by four states.[19]

More significant is the Choice of Court Agreements Convention 2005, which covers civil and commercial matters. The UK is a party to this convention as an EU member state and should make efforts to accede to the convention after leaving the EU.

It should be noted that while this convention is very important to commercial adjudication, it does not fully replace the Brussels I framework.  Both the Brussels I Regulation and the Lugano Convention apply to all judgments in civil and commercial matters, including consumer, employment, or insurance disputes. The Choice of Court Agreements Convention applies only where there is a choice of court agreement between the parties.

The Conference is currently working on a new global judgments convention. This aims to provide recognition and enforcement of judgments in civil and commercial matters. However, unlike the Brussels I Regulation and Lugano Convention, it does not provide for recognition and enforcement of judgments in consumer and employment contracts. The new agreement is likely to be presented for political approval during 2017.

The Conference has previously adopted conventions on service of documents and taking of evidence and the UK is already a party to these. Generally, these conventions have good coverage within the EU. They also apply where non-EU states have ratified them. Even though these conventions are more cumbersome than the EU Regulations, they provide a global setting for the service of documents and the taking of evidence in civil and commercial matters.

Family Law

The EU currently has a limited role in family law matters. Each member state has its own rules about separation, divorce, maintenance, custody and guardianship and other family law matters. Where EU rules apply, these tend to build upon pre-existing international conventions. Much like for commercial and contract matters, the main focus of EU rules relating to cross-border family law issues is ensuring mutual recognition and enforcement of judgements, and establishing rules around jurisdiction.

Continued cooperation between the UK and EU on cross-border cases will be important to support families and children through what is often a difficult and stressful time in their lives.

Key instruments to consider include Regulation (EC) n.4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions, and cooperation in matters relating to maintenance obligations; Brussels II bis Regulation on matters of children and jurisdiction, recognition and enforcement of orders relating to children, child protection, and child abduction; and Regulation (EU) 606/2013 on mutual recognition of protection measures in civil matters, referring specifically to any measure aimed at protecting victims of violence.

Legal Services

The regime to regulate the cross-border supply of legal services and the rules designed to facilitate the establishment of a lawyer in another member state have been in force for a number of years.

Three key pieces of EU legislation affect the legal profession:

• Lawyers’ Services Directive 1977 (77/249)
• Lawyers’ Establishment Directive 1998 (98/5)
• Recognition of Professional Qualifications Directive (2005/36)4

In addition, Directive 2006/123/EC on Services in the Internal Market also touches on the legal profession.

The Lawyers’ Services Directive

The Lawyers’ Services Directive 1977 governs the provision of services by EU/EEA/Swiss lawyers in a member state other than the one in which they gained their title. It facilitates free movement, but it does not deal with establishment or the recognition of qualifications. The directive provides that a lawyer offering services in another member state must do so under the lawyer’s home title. Migrating lawyers may undertake representational activities under the same conditions as local lawyers, save for any residency requirement or requirement to be a member of the host Bar.

However, they may be required to work together with a lawyer who practises before the judicial authority in question. For other activities, the home state’s rules of professional conduct apply without prejudice to respect for the rules of the host state, notably confidentiality, advertising, conflicts of interest, relations with other lawyers and activities incompatible with the profession of law.

Permanent establishment under home title

The Establishment Directive 1998 entitles lawyers who are qualified in and a citizen of a member state to practise on a permanent basis under their home title in another EU/EEA member state, or Switzerland. The Directive allows the lawyer to practice not only the lawyers’ home state law, community law, and international law, but also the law of the host state.

This entitlement requires that a lawyer wishing to practise on a permanent basis registers with the relevant Bar or Law Society in that state and is subject to the same rules regarding discipline, insurance and professional conduct as domestic lawyers.

Once registered, the European lawyer can apply to be admitted to the host state profession after three years without being required to pass the usual exams, provided that he or she can provide evidence of effective and regular practice of the host state law over that period.

Recognition of professional qualifications

Re-qualification as a full member of the host state legal profession is governed by the Recognition of Professional Qualifications Directive. The 1998 Establishment Directive essentially provides an exemption from this regime.

The basic rules are that a lawyer seeking to re-qualify in another EU/EEA member state or Switzerland must show that he or she has the professional qualifications required for the profession of lawyer in one member state and is in good standing with his or her home Bar.

The member state where the lawyer is seeking to re-qualify may require the lawyer to either:

• complete an adaptation period (supervised practice) not exceeding three years, or
• take an aptitude test to assess the applicant’s ability to practise as a lawyer of the host state (the test only covers the essential knowledge needed to exercise the profession in the host state and must take account of the fact that the applicant is a qualified professional in the home state).

It is also worth considering that a number of future lawyers take advantage of programmes during their studies which rely on reciprocal arrangements with other EU universities. The ERASMUS programme has a number of participants from Scottish law schools.

Legal professional privilege (LPP)

In the CJEU case of AKZO NOBEL Ltd and AKCROS Chemicals Ltd v the European Commission,[20] the Court decided to exclude all lawyers qualified outside the EU from the application of LPP. The case proceeded on the precedent of the ECJ in AM&S Europe v the Commission[21] which also excluded non-EU lawyers from the application of LPP. The Court acknowledged that LPP applies to communications between a client and his independent lawyer but limited the definition of lawyer to “a lawyer entitled to practice his profession in one of the member states, regardless of the member state in which that client lives… but not beyond”. The apparent basis of the exclusion of third countries from the benefit of LPP within the EU is the difficulty of the “Court being able to ensure that the third country in question has a sufficiently established rule-of-law tradition which would enable lawyers to exercise the profession in the independent manner required and thus to perform their role as collaborators in the administration of justice”.[22] LPP and Confidentiality of Communications is a key aspect of the Rule of Law in the UK and are acknowledged by the Courts and Parliament as central to the administration of justice. Recent legislation specifically acknowledges the requirement to protect LPP and confidentiality.[23] The doctrine is upheld under human rights law in Campbell v UK.[24] The loss of LPP and confidentiality will have a negative impact on the rights of clients and the ability of lawyers in the UK to provide a full service to their clients when acting in on matters which relate to EU Law or business in the EU. The UK legal systems clearly meet the test in respect of the Rule of Law and the independence of lawyers and should have LPP accorded to the lawyer/client relationship when EU Law is an issue.

23 November 2016