Date Legislation considered: 24 October 2023
Date Legislation in Force: 27 July 2023, but regulation 3(2) came into force on the 01 September 2023
Potential Right(s) Affected: Recognition of Professional Qualifications, Discrimination/Equal Treatment
Background and Purpose
The purpose of these Regulations is to close off the ability of EEA lawyers from practising in Gibraltar in accordance with previously applicable EU law from the point at which they come into effect. However, the Regulations preserve the ability to practise of those already practising or in the process of seeking to practise at the end of the transition period, as is required under the Withdrawal Agreement and EEA EFTA Separation Agreement (the Agreements).
The repeal of the relevant parts of the Supreme Court Act by the Regulations removes the mutual recognition of EEA lawyer qualifications for those who are not practising in Gibraltar by the 27 July 2023 or in the process of applying for recognition by the 27 July 2023. The changes are therefore prospective, or forward looking, and do not impact the ability of those already practising in Gibraltar in accordance with the relevant EU law governing the mutual recognition of qualifications.
The Agreements, in the context of the recognition of professional qualifications, only apply to those citizens whose qualifications have already been recognised on or before 31 December 2020, or in the process of being recognised at that point. Therefore, citizens capable of protection under the Agreements, remain protected and their position and ability to practise are unaffected by these regulations.
There are also some provisions that address issues of misconduct that are not within the scope of the IMA. Furthermore, there are also sections devoted to the treatment of Swiss lawyers that are beyond the remit of the IMA.
Regulation 3(3) deletes Parts VI to XI of the Supreme Court Act. These Parts of the Act previously enabled EEA lawyers to pursue professional activities as lawyers in Gibraltar in accordance with Article 10(1) and (3) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 (the Directive) to facilitate practice of the profession of a lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. These Parts have been deleted as of the 27 July 2023.
Regulation 3(2) deletes Part IVA of the Supreme Court Act. This Part relates to the ability of EEA lawyers, who are not admitted or entitled to practise in Gibraltar as a barrister or solicitor, to act in legal proceedings where they are instructed with and act in conjunction with a barrister or solicitor who is entitled to practise in Gibraltar. This Part has been deleted as of the 1 September 2023.
The deletions contained in regulation 3 of these regulations do not engage the protections of the recognition of qualifications under the Agreements because those protections are limited to those who relied upon that recognition (or in the process of having qualifications recognised) before 31 December 2020.
Regulations 6 to 8 make transitional provision to ensure that the position with regards EEA lawyers who are registered before the 27 July 2023, or in the process of becoming registered, continue to be subject to the deleted provisions of the Supreme Court Act. This effectively preserves the position for the EEA Lawyer as if the law had not changed in relation to those who fall within scope of the Agreements.
There are further changes made by these regulations to the reflect the change in titles of lawyers from EEA lawyers to registered European Lawyers to recognise the rights of European lawyers during the transition period. There has been a change to allow for professional bodies to co-operate from different jurisdictions should they wish as there a no mandatory requirements to do so after the end of the transition period. There are also changes to align the professional conduct of all lawyers in Gibraltar. None of these changes impact upon those who are currently practising under their rights protected under the Agreements.
Comments
The IMA raises no issues of concern in relation to these Regulations. Where deletions have been made, such changes will only affect entrants to the legal profession going forward and will not engage Agreements rights. In cases where lawyers are already practising or have made the necessary applications within the specified period, their rights are protected by ensuring that the now deleted sections remain intact to provide them with the same protection as though no changes have been made to reflect the protection under the Agreements.
Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the website.