The Brexit vote has opened a Pandora’s box of uncertainties for UK lawyers, not least the issue of how leaving will affect their rights to practise in the EU.
Two questions are fundamental: first, will British lawyers retain their rights to appear in the courts of the EU after the UK leaves the union? As it stands, only lawyers who are entitled to practise before a court of an EU state or that of the European Economic Area (EEA) may represent parties in cases before the Court of Justice and General Court of the EU.
Second, will the advice British lawyers give on EU law continue to be protected by legal professional privilege? At present, EU law only recognises privilege in advice given by external legal advisers who are qualified in the EEA.
Various organisations, including the Bar Council of England and Wales, are seeking solutions to the difficulties that Brexit may cause barristers wishing to practise in the EU. But given the many sectors, professions and industries clamouring for their interests to be advanced in the Brexit negotiations between British ministers and Brussels officials, some self-help remedies are in order.
The rush of solicitors to register on the Irish roll of solicitors since June 2016 has been well-documented. What is less well known is that a group of barristers has successfully applied to join the Irish Bar, and several others are in the process.
Being called in Ireland is more complicated than might be assumed.
The Irish Bar understandably requires exams to be taken before an English barrister can qualify. That demands a return to the spirit of university finals, complete with revision cards, practice exam questions and panics over whether the handwriting of seasoned practising barristers would be legible.
Barristers called in England and Wales can, ironically, rely on EU law rights that allow qualified lawyers from other member states to transfer. They must submit a written application, including details of knowledge and experience to justify exemption from a number of other exams, including contract, tort and property law.
Exemptions are based on knowledge and experience rather than being linked to a number of years in practice. Candidates will be relieved that they do not have to “devil” before call, the Irish equivalent of pupillage.
And crucially, transfer is not cheap, so will only be of interest to those at the specialist EU Bar on this side of the Irish Sea. There are fees for the application and for the call ceremony meaning that in total the cost runs to more than £1,000.
The process is also lengthy, taking about a year from start to finish, although the authorities are understood to be speeding this slightly.
Even if a universal solution to the practice conundrum of UK lawyers post-Brexit cannot be found, an Irish qualification will enable English barristers to ensure that the advice they give clients remains privileged, and that those barristers will be able to continue representing clients in the courts of the EU.
The following members of chambers are called to the Irish Bar:
Mark Hoskins QC, Jemima Stratford QC, Maya Lester QC, Klaus Reichert, Margaret Gray, Victoria Wakefield, David Scannell and Sarah Abram. Aidan Robertson QC has passed the exams and will be called next spring.
Further details can be found here.