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THE WRIT THE EZINE OF THE LAW SOCIETY OF NORTHERN IRELAND ISSUE 236 Spring 2021 THIS ISSUE The road ahead after Brexit Brexit and the NI Protocol The Bridge to Adequacy Brexit and Immigration Law Professor Katy Hayward Fiona Donnelly outlines provisions Brian Moss explores the Settlement Scheme, examines the constitutional for adequate data protection employing migrant workers and the new Scheme position for British National (overseas) passport holders
4
2 Ezine of the LSNI Society Ezine of the LSNI 3
Autumn
Spring 2021
2020 Business Spring 2021
I very much hope that this may be one of the last issues of The Writ to mention no doubt that members and their clients will find it an excellent venue
the Coronavirus pandemic. While the pandemic may not be over, I believe there President’s Message for their meetings, consultations, mediations and other events and I
are grounds for at least cautious optimism that there is at long last light at the encourage you all to make full use of it.
end of the very dark tunnel. A practical example of this is that I expect Law
Society House to reopen before the Summer. More news on that will follow in If I cast my mind back to the start of last year, I certainly did not The Centre should be ready for use after Easter, when a ‘soft launch,’
PUBLISHERS an E-nformer nearer the time. imagine then that it would still be my responsibility, more than a year largely confined to the Society’s own activities, is planned. This will give
The Law Society of Northern Ireland later, to pen this message to you. It is a privilege to be able to do so an opportunity to iron out any ‘teething’ problems before the facilities
Law Society House As Members will know, the Society has been surveying law firms to help us to
and I am very grateful to the Society’s Council for taking the rather are made fully available for members’ use from September onwards.
96 Victoria Street better understand the impact of the pandemic on the legal services sector of
unusual step last November of re-electing me to serve a second term
BELFAST BT1 3GN the economy. You can read about the most recent survey in this issue. The main
as President. At that time a distinguished Past President jokingly Members will be pleased to learn that the sale of the Society’s controlling
Tel: 028 9023 1614 message appears to be that firms have in many instances adjusted their cost
remarked that he would remember my first year in office chiefly shareholding in Law Society (NI) Financial Advice Limited was completed
Fax: 028 9023 2606 base and are now seeing encouraging levels of business activity other than in areas of legal work which are
because it marked the demise of the sandwich lunch which traditionally on 1 March. The sale allows the Society not only to withdraw from a
E-mail: writ@lawsoc-ni.org reliant on a throughput of court cases where the recovery is more patchy.
Website: www.lawsoc-ni.org preceded Council meetings. This has always been viewed as an highly regulated business sector which carries significant financial and
In this issue you can also read about Brexit. No, it hasn’t gone away! The outworking of the UK withdrawal important way for Council members to get to know one another and to reputational risk but also to recover its total investment in the company
from the EU is covered in several articles in this issue. You can also read about the Memorandum of promote a sense of collegiality between them. The same applied to the and to realise a significant profit for the benefit of the Society. Just
EDITORIAL TEAM Understanding the Society has entered into with the Law Society of Ireland in order to secure continuity of many Committee meetings which used to take place over lunchtime a few short years ago, such a favourable outcome would have been
Rowan White, President cross-border legal practice in the post-Brexit environment. in Law Society House on an almost daily basis. Admittedly, there was unthinkable. The sale was the culmination of a lengthy review process
David A Lavery CB, Chief Executive
always the added consideration that a hungry Council or Committee led by our Past President James Cooper and the Chief Executive, David
Heather Semple I would also draw your attention to an interesting report on the activities of Lisburn Solicitors Association.
member is not necessarily a productive one, so the provision of a Lavery, assisted by a panel of senior members of the profession. James
Paul O’Connor We have an active network of local Associations and we hope to feature new articles about them in future
modest lunch did involve a degree of self-interest on the Society’s part. and David, with invaluable support from Chris Houston, the Society’s
Peter O’Brien issues of The Writ.
Sadly, the pandemic has largely put paid to any such opportunities Finance Director, put a colossal amount of time and effort into negotiating
for social interaction for the time being. However, I hope that, as the terms of sale and the profession is deeply indebted to them. I would
DESIGN Mark Twain might have said, reports of the death of the communal also like to pay tribute to another Past President, Rory McShane, who,
SHO Communications Consultants sandwich lunch are an exaggeration and that it will revive as soon as as a Chair of the Board of Directors of the company, demonstrated huge
David A Lavery CB
circumstances permit. commitment to and belief in the company and helped to steer it through
Chief Executive
DISCLAIMER some very troubled waters to a safe haven.
The Society’s Council and Committees may not be meeting in person at
The Law Society of Northern Ireland and
its agents accept no responsibility for Contents present but business is very much continuing as usual. Space constraints As the transition phase of the UK-EU Withdrawal Agreement expired at
the accuracy of contributed articles or preclude me from giving you a detailed account of all the Society’s the end of 2020, we must all now begin to adjust to life in a post-Brexit
statements appearing in this magazine
03 President’s message activities so far this year, so I will mention just a couple of highlights. era and it should come as no real surprise that this is the theme of this
and any view or opinions expressed
are not necessarily those of the Law 04 Memorandum of Understanding on Practice Rights with the Law Society of Ireland edition of The Writ. I hope you will enjoy the wealth of informative and
Society’s Council, save where otherwise Work on the new Resolution Centre has proceeded smoothly on the entertaining material which it contains.
04 Practising Certificate Application second floor of Law Society House and is now largely complete. Audio
indicated. No responsibility for loss or
distress occasioned to any person acting 05 Membership Survey visual equipment is currently being installed and furniture is about to
or refraining from acting as a result of
09 Law Observer for Northern Ireland Annual Report be delivered. A recent walk-through revealed that this new facility Rowan White
the material in this publication can be
10 Four Jurisdictions Family Law Conference report looks even better in reality than it did on the design drawings. I have President
accepted by the authors, contributors,
editor or publisher. The editor reserves the
12 Brexit and the Northern Ireland Protocol – the EU/UK trading landscape
right to make publishing decisions on any
advertisement or editorial article submitted 14 Brexit and the Northern Ireland Protocol – a change in constitutional relations?
to this magazine and to refuse publication
16 The Bridge to Adequacy
or to edit any advertisement or editorial
material as seems appropriate to the 17 Brexit - is taxing - looking at the VAT implications for your business
editor. The Law Society of Northern Ireland
18 Brexit and Immigration Law
and its agents do not endorse any goods
or services advertised, nor any claims or 20 How did your behavioural biases affect your wealth in 2020?
representations made in any advertisement
21 Computer says “yes”
in this magazine. No part of this publication
may be reproduced without the written 22 FCA Supreme Court Case on Business Interruption Insurance
permission of the copyholder and publisher,
24 Liquor Licensing and Covid-19: consent to alterations
application for which should be made to the
publisher. 25 The importance of Independent Custody Visitors
26 A new decade and a new approach to the Bill of Rights debate
© Law Society of Northern Ireland 2021
28 Reform of the Rehabilitation of Offenders regime
30 The Hague Judgements Convention
www.lawsoc-ni.org
31 Lisburn Solicitors Association
32 Irish Rule of Law International’s work in Tanzania
Writ readers can access back issues 33 Obituary - Lord Kerr of Tonaghmore
of the magazine as far back as
34 Obituary - David Brewster
October / December 2000 at
www.lawsoc-ni.org - follow 35 Revised Anti-Money Laundering (AML) Guidance for the Legal Sector published
Publications link 37 Practice Direction 6/2011 (Revised March 2021)
38 Abstracts from the Courts
4 Ezine of the LSNI Society Society Ezine of the LSNI 5
Autumn
Spring 2021
2020 Business Business Spring 2021
Memorandum of Understanding on Practice Rights Membership Survey
with the Law Society of Ireland
In May 2020 and November 2020, the Law Society of Northern Ireland engaged
Cognisense, a professional research and marketing company to undertake a
continuation of cross-border legal practice on survey of solicitor firms in Northern Ireland.
the Island of Ireland.
The purpose of the two surveys was to establish the ongoing impact of the Membership
The MOU is drafted to give assurance to Survey
Covid-19 pandemic on solicitor firms and to identify ways in which the Society November/December 2020
the profession that both Societies expect could support its members moving forward.
reciprocal recognition to continue so that
the ability to practice on the island is not The survey was delivered via electronic methodology both in May 2020 and
impacted. The MOU represents the shared November 2020.
For many practitioners, uninterrupted understandings and common purposes of Over 1000 principals from 470 solicitor firms were sent the secure confidential
cross-border practice is a vital part of our respective legislative and regulatory survey on both occasions with one response required per firm.
their daily business. In light of this, and provisions in relation to solicitors practising in Paul O’Connor • A total of 317 responses were received to the May 2020 survey.
also in recognition of the long-standing both jurisdictions.
David A Lavery CB arrangements on reciprocal recognition of Head of • A total of 236 responses were received to the November 2020 survey.
In the MOU the two Societies reaffirm their
Chief Executive qualification and admission rights, it has been
commitment to facilitate seamless mutual Communications The Society is pleased to provide members with the comparative findings of both surveys below.
an important objective for the Law Society of
recognition, admission and practice of Ireland
Northern Ireland to preserve the continuation
and Northern Ireland solicitors as between
The United Kingdom’s withdrawal from of North-South practice in the post-Brexit
the two jurisdictions. The provision of legal Furlough of staff Redundancies
the European Union will impact on many context.
services by a solicitor of a client’s choosing
aspects of our daily lives, both personal and
81 42
on each side of the border is a fundamental
professional. As lawyers, we are no longer Following initial discussions with the Law • May 2020, 5% of respondents stated
In
pillar of legal practice on the Island of Ireland
able to rely on the Lawyers Directive to Society of Ireland in Autumn 2019, the that they had made redundancies.
and contributes to the betterment of our
facilitate cross-border legal practice within concept was developed into a Memorandum 22%
respective economies.
• In May 2020, 81% stated that they had furloughed between • November/December 2020, the number
In
Europe. This has an immediate and obvious of Understanding (‘MOU’) on Cross-Border
1 and 10 employees. stating that they had made redundancies
impact for Solicitors in Northern Ireland who Practice. The MOU operates as a Mutual The full text of the MOU can be accessed here
has increased significantly to 22%.
have a cross-border aspect to their practice. Recognition Agreement and supports the Members will be required to login to download. • This figure decreased significantly to 42% in November 2020.
5%
•
Within this Secretarial/Support Staff
featured most significantly here (77
Practising Part II of the Solicitors (NI) Order 1976 (“the Order”) requires an application by a solicitor for
a practising certificate “in such form and in accordance with such requirements, and shall be
39 62 positions made redundant).
November/December 2020 May 2020
•
Certificate accompanied by a fee of such amount as may be prescribed.” There
were corresponding significant increases in the number
of solicitors who were not on Furlough in November 2020 from
The application process was until 2020 a paper-based one with members completing a physical form 39% - 62% Future redundancies
Application and providing a copy of their PI insurance certificate along with their payment, often by cheque,
which was then sent to the Society.
Process 2021 – However, the Society responded to the impact of the coronavirus pandemic during 2020 with
•
There were fewer significant changes in the number of
“Secretarial/Support Staff” on furlough between May 2020
an update a number of initiatives. Initially there was a 50% refund of the 2020 practising certificate fee
to members in practice, followed by a £100 reduction in the fee for 2021 and the Society then
and Nov/Dec 2020.
16%
58% 26%
12 31
embarked on a process to digitise the practising certificate application procedure in order to increase
the efficiency of the process for members, which, for the first time, provided enhanced digital
payment options and a digital practicing certificate. 38% 39%
23%
The new online process went live in time for the 2021 renewal process and the Society is pleased to •
However Member firms with 2-3 staff on furlough increased
report on its success. Three payment options were offered to the members; significantly from 12% to 31% over this time.
DON’T
YES NO
• Bank transfer; KNOW
76 90
• Credit/debit card; or
• In
May 2020 almost 2 in 5 (38%) claimed that they
• Direct debit in quarterly instalments
were likely to make further redundancies, with a similar
with the large majority of members opting to make payment by bank transfer. proportion (39%) who “don’t know”. Under a quarter
• There
were corresponding (though not as marked) increases (23%) stated they would not be taking such steps.
Applications for renewal could either be submitted by the Society’s website or by email. Practically all
in the number of Paralegals who were not on Furlough in
Chris Houston applications were submitted via the website, and feedback from members has been highly encouraging. November 2020 from 76% to 90%. •
These percentages have reduced significantly in
This is also borne out by the statistics as 97% of applications were received by the closing date. November 2020 with 58% stating that there would be
Head of Finance no further redundancies.
The Society is also pleased to report that voluntary contributions to the Solicitors’ Benevolent Association
• of member firms had 1 trainee on Furlough in
6%
fund which were made as part of the online application process are in line with recent years. November 2020. November/December 2020 May 2020
6 Ezine of the LSNI Society Society Ezine of the LSNI 7
Spring 2021 Business Business Spring 2021
Impact on salaries and working hours Impact on areas of business Business Support measures
66 30 Areas of work undertaken by firms. Comparing Jan/Nov figures -
• Many firms benefited from the stated business support measures
Comparing Jan/Nov 2020 figures we can see:
• In May 2020, respondents stating that they were likely to reduce • The C-19 Job Retention Scheme has the highest uptake (84%/81%)
working hours or salaries dominated here (66%). Circa a quarter
• Civil litigation (92%/92%) • Small Business Grant Scheme (65%/63%) coming next on the list, followed by Deferral of VAT (56%/44%)
(24%) stated that they didn’t know, with 1 in 10 suggesting they
would not do so. • Wills, Probate & Estates (89%/86%)
• Deferral of Self-Assessment by Principals (37%/27%)
• Residential Conveyancing (87%/83%)
• In November 2020, the number stating that they would reduce • Self-Employment Income Support Scheme (23%/24%)
working hours and salaries has reduced significantly from 66% to These were the top three areas of work for member firms. • Bounce Back Loans (20%/48%)
30%.
• Coronavirus Business Interruption Loan Scheme (2%/8%)
• The November research also included Local Council business support grants which 4% of member firms had taken up.
Impact on trainees • Employment Law (41%/35%)
• Corporate and Business Law (35%/28%)
• Judicial Review (35%/27%) 84% 81%
YES
12% 65% 63%
26% NO These were the areas of work with the lowest engagement
56%
figures. 48%
DON’T KNOW
44%
37%
63% 27% 23% 24% 20%
May 2020 8% 4%
2% 0
• In May 2020, 26% of member firms stated that they would take • There were decreases in many areas of work with Residential Coronavirus Job Small Business Deferral of VAT Deferral of Self Self Employment Bounce Back Coronavirus Local Council
Retention Scheme Grant Scheme payments Assessment by Income Support Loans Business business support
on trainee solicitors, almost two thirds stated that they would Conveyancing having the highest ‘decrease’ (97%). (Furlough Scheme) (£10,000 grant) Principals Scheme Interruption Loan grants
Scheme
not and 12% did not know. • Employment Law has the highest ‘increased’ response (21%).
• Family Law (26%), Debt Recovery and Insolvency (29%) and
Judicial Review (30%) have somewhat higher ‘no change’ November/December 2020 May 2020
YES
17% responses.
NO
Nov/Dec 2020 Changes in firms’ business practice In-house client complaints
83%
• In general, we can see improvement across many areas of
work. • Videoconferencing, Working from • 6% of member firms stated that they had received an
Residential Conveyancing has gained considerable ground Home, Flexible working hours in-house client complaint since 1st September 2020
• In November/December 2020, 17% of member firms stated that since May and has increased to (51%). for staff and Social Media were relating to the adequacy of service provided by their
they had taken on trainee solicitors. The vast majority of these • Family Law, Employment Law, Debt Recovery (etc.) have all all utilised by member firms to firm.
took on one trainee. different degrees.
seen reasonably strong increases.
• The total number of complaints received amounted to
• Judicial Review has increased its ‘no change’ status. • Of these Videoconferencing was 19, of which 13 were COVID-19 related.
• For some others such as Criminal Law, the strong decrease the most likely to be retained
Recruitment of new staff within 6 months followed by Working from Home
has halted to be replaced by a stronger ‘no change’ status. and Flexible working hours.
• The vast majority of respondents (71%) stated that they were
not anticipating recruiting any new staff in the next six months. • Social Media was the least used but retention was a close match to
current usage.
• Videoconferencing (84%) and face to
Impact on Turnover Comparing Jan/Nov 2020 figures we can see: face office meetings (83%) are the most
favoured meeting forums.
Significant impact • 1% of member firms indicated that the Covid-19 pandemic had had an impact
9
9% on the turnover of their firm. • Conference voice calls are favoured
on turnover
by 61% and client venue face to face
Moderate impact on • Within this, 45% stated that the impact had been significant. meetings by 25%.
45%
turnover
46% • 95% of member firms had experienced up to 50% decrease in turnover. Within • Two thirds stated that there were areas of business which could not
No impact
this, the highest was 31% of firms with a 21% - 30% decrease in turnover. be carried out remotely or through working from home.
8 Ezine of the LSNI Society Society Ezine of the LSNI 9
Spring 2021 Business Business Spring 2021
Mental health and well being
• There
was approximately a 50/50 ratio between those who state that they have and those who state that they have not taken steps
Lay Observer for Northern Ireland Annual Report
to improve the physical and mental wellbeing of their employees.
• November 2020, where discrete responses on physical and mental wellbeing were included, there was a significantly higher
In The link below provides access to the latest • In-house Complaints – The LO does
proportion of member firms who had taken steps to improve the physical wellbeing when compared with the mental well being of report. Members are encouraged to take time highlight a concerning issue regarding the
their employees.
to review the outcomes of the report and the number of complaints where the solicitor
Approaching 1 in 10 member firms stated that they had used on-line resources to support the physical and mental wellbeing of commentary provided by the Lay Observer. I has failed to properly consider the client’s
themselves or members of their firm during the pandemic have outlined some of the key findings of the complaint under their in-house procedures.
report below; Effective in-house communication and
complaint management is a substantive
Have you taken any steps to improve the physical and mental wellbeing of yourself or your employees during the pandemic? • Complaint
Numbers – The LO records topic within our CPD seminars this year. It
that in 2019/20 the Society received 350 also figures prominently in the Society’s
categorised complaints from eighty-six complaints seminar to IPLS trainees.
Physical & Physical Physical & Physical Mental
complainants. This is a decrease from 450 Members are directed to the Client
Mental Nov 2020 Mental Nov 2020 Nov 2020
May 2020 May 2020 categorised complaints derived from one Communication Practice Regulations
Mental John Mackell hundred and one complainants in 2018/19. 2008 for assistance on considering and
Nov 2020
Head of Professional The LO notes this decrease as a positive responding to in-house complaints.
trend.
May 2020 Conduct The LO concludes her report by listing a
• Outcomes
- The CCC during 2019/20 number of proactive measures introduced by
55% 61% 36% 45% 39% 64% Nov/Dec 2020
The Lay Observer for Northern concluded 70 complaint investigations. the Society within the last year with specific
Nov/Dec 2020 Ireland, Mrs. Marian Cree, has Thirty-two complaints were upheld in reference to the Society’s online complaints
recently published her annual part or completely. Twenty-seven of portal which enhances accessibility to the
YES NO
the upheld complaints carried a form of complaint process. The LO acknowledges
report for 2019/20.
warning/reprimand. The LO describes the Regulatory Notices provided through
these outcomes as evidence of the Society the CCC and circulated to the membership
Mrs. Cree in her role as Lay continuing to take a sterner approach in the on topics including in-house complaint
Law Society Support measures Looking ahead Observer (LO) is required to area of complaints. The LO further describes management and the provision of client care
undertake a number of functions the outcomes as extremely positive whilst and costs information. The LO references
including the following: demonstrating the Society’s commitment to the independent external ISO audit which
Those who had accessed the Library online publications • There
was a 50/50 split in terms of whether maintaining standards and executing their following assessment of the complaints
member firms were more or less optimistic as powers as the Regulator for the sector. procedures within the Society did not identify
1. Folio was the most accessed publication (45%) to the prospects for their Firms in the next six •
Provision of commentary on any non-conformities and certification was
2. Journal of Elder Law and Capacity (26%) months when compared with the start of the last the Law Society’s complaints successfully maintained.
• Complaint
Trends for CPD – The LO notes
3. Child and Family Law Update was used by 1 in 5 (20%). six months.
process, procedures, the that Conveyancing remains the practice
quality of the service provided The final summary of the report outlines the
• 81%
of member firms had used the on-line provision of CPD and 97% of • third of member firms expected their turnover
A area which attracts the highest number
of complaints albeit 2019/20 did record LO’s view that the Society in the preceding
those who had used it, found it helpful. to remain the same. 1 in 4 (22%) expected and the outcomes from the
an increase and 44% expected a decrease in a downward trend in the number of year has demonstrated a willingness to
work of the Client Complaints continue to improve our complaints processes
• 74%
of member firms stated that the Law Society’s Covid-19 turnover. Conveyancing complaints received. The
Committee (CCC); for all concerned along with a desire to make
communications had been “good” to date. LO commends the Society’s approach
in identifying trends to inform our CPD the process more transparent and customer
31%
• 69%
of member firms stated focused. The LO describes her report as
• 22% rated communications as “average” that they were content to
•
Examination of individual programme. The Chair of the Society’s
69% allegations about the way the Conveyancing Committee delivered two presenting another 12- month period which
attend court venues to conduct
• 3% as “poor”. business in person. complaint seminars in 2019/20. We also has seen a continued positive trend in how
Society has treated a particular
provided standalone complaint events complaints are registered and handled by the
complaint in accordance with Society.
for Family and Probate. This year we
the Solicitors (NI) Order 1976;
are introducing a seminar in Litigation
complaints to address an increase in this
Planning for the future 4% • 96% of member firms stated •
Publication of an annual report particular practice area. The 2019/20 Annual Report can be accessed here
that they were content to
attend court venues to conduct to the Lord Chief Justice, the
96% • LO
Referrals - In 2019/20 the LO dealt with
• 86%
of member firms had a contingency plan in place to cope with business via virtual attendance Northern Ireland Executive
coronavirus outbreaks in their offices or if a member of their firm were to e.g. SightLink through the Department of and provided written reports on fifteen
Lay
receive a notification from track and trace and needed to self-isolate. referrals from complainants dissatisfied
Finance and the Council of the
with the Society’s treatment of their
the
Observer
Law Society on the nature of complaint. This compares to twenty-two in
complaints to the Society and 2018/19. The LO did not uphold any of the
Full Membership Survey results can be accessed here how they are dealt with. fifteen complaint referrals received from
complainants during 2019/20.
for Northern Ireland
10 Ezine of the LSNI Society Society Ezine of the LSNI 11
Spring 2021 Business Business Spring 2021
BRIDGE OVER TROUBLED WATERS the Conference required the application of
different approaches to planning, timetabling
and members of the Judiciary and hailed from
all parts of the four participating jurisdictions,
of academic debate and real-life experiences
resonated with all delegates in reflecting on
Family Law Four Jurisdictions Conference and delivery. With regular meetings and
exchanging ideas, the Conference was outlined
central Europe and Australia. The programme
was timetabled to perfection and ended on
the significant challenges 2020 has brought
to family law and how practitioners have
Saturday 30th January 2021 by the Committee. Guest speakers from time 3 and a half hours after the opening, managed. In the words of Lady/Baroness
sister-jurisdictions were secured along with a with delegate numbers only falling below 500, Hale inspiring hope to us - “this time will
well-being expert from the Judicial College of 10 minutes before the closing. pass”.
Victoria to focus on ‘lawyer stress’.
The Conference was opened at 9.30am by Mrs The Organising Committee met for a de-brief
The 2021 Conference theme was “a bridge Justice Keegan. Delegates then heard words of the week after the Conference. All were
over troubled waters” to symbolise and focus welcome from the Justice Minister Naomi Long delighted at the success of the conference
on family practitioners’ approach to Brexit and MLA followed by words of encouragement and the huge number of complimentary
the pandemic. Bookings opened on the Law from Lady/Baroness Hale whom most would emails received following the event. The
Society’s GoTo Webinar platform. The booking describe as the conference patron. The unprecedented number of attendees at the
capacity for GoTo was increased from 500 three main speakers addressed areas of legal conference may well change the face of the
to 1000 due to the anticipated interest that challenge to overcome jurisdictional issues annual Four Jurisdictions Conference for years
the event would have. The Committee, alert post Brexit and also how to recognise and to come. Although everyone is hopeful of a
to succession issues for the Four Jurisdictions improve mental health and wellbeing. The return to a face-to-face event soon, perhaps
Suzanne Rice Ann McMahon Conference not only targeted the regular latter speaker, Carly Schrever, joined the a hybrid mix of delivery may be the way
Chair, Family Secretary, Family Conference attenders, but also reached Conference live from Australia and provided a forward.
out to younger family practitioners in the very thorough presentation on the stressors of
Law Committee Law Committee anticipation that they would become repeat legal work. The Committee were grateful to Tilneys
attenders to the event. Each year the Four Financial Planning Limited for providing
Jurisdictions is hosted by a different jurisdiction The usual ‘regionals’ slot was maintained sponsorship for the event and also organising
January 2021 saw the return of the Annual Family Law Four in rotation and attracts approximately 150 in the programme, with participants from a virtual Friday evening get-together for
Jurisdictions Conference to Belfast as hosts for the event. – 200 delegates. Belfast 2021 received 817 Republic of Ireland, Scotland, England, Wales delegates, and a short presentation for
registrations with 615 logging in on the day and Northern Ireland taking 10 minutes each attendees by one of their financial planners.
Despite a world pandemic the event was planned and which was a remarkable achievement for to present on an interesting case from their
delivered during the customary last weekend in January. the Organising Committee, given that the jurisdiction in the last 12 months, or indeed 2022 Four Jurisdictions will be hosted by
event took place on a Saturday morning. something more-light hearted but within the Dublin, with the Shelbourne Hotel being at
The Belfast Joint Organising Committee, all Jurisdictions and beyond, it became Delegates comprised of solicitors, barristers general theme of the Conference. The blend the centre of the Conference.
comprising a small number of representatives abundantly clear that the usual arrangements
from the Law Society and Family Bar for the Conference could not be delivered.
Association, commenced planning for the So, rather than postpone the event, the
event in February 2020. Venues for the Committee agreed that as family practitioners
Friday evening welcoming reception, the would appreciate the ‘normality’ of the Four
Saturday Conference and evening gala were Jurisdictions taking place as usual at the end
provisionally booked. By mid-2020, as of January, that a virtual Conference was
the pace of the pandemic increased across the way to go. This change of direction for
Dear Colleagues, Conference topics (provisional) include:
First of all, huge congratulations to Belfast on a simply • Arbitration and Family Law
superb conference. It was so informative, innovative and, • Parental Rejection and high conflict parental disputes
above all in these challenging times, enjoyable! • The Brexit Interview
But as we look forward to the ending of lockdown and As well as a full range of social events and surprises …
current restrictions, may we invite you to …
Further information to follow in due course and we will
have a dedicated section for conference updates on our
SAVE THE DATE website –
www.familylawyers.ie
FOUR JURISDICTIONS FAMILY LAW
For further information (or conference correspondence)
CONFERENCE 2022* email: fourjurisdictionsdublin2022@gmail.com
DUBLIN
Looking forward to continuing the conversation in Dublin!
28th – 30th January 2022
Shelbourne Hotel, St. Stephen’s Green, Dublin Nuala E Jackson SC, Alan Finnerty, Solicitor
Chair, FLA Vice Chair, FLA
*Subject always to Covid-19 regulations
12 Ezine of the LSNI Brexit Brexit Ezine of the LSNI 13
Spring 2021 Spring 2021
Brexit and the Northern Ireland Protocol –
the EU/UK trading landscape
their documentation for even one item is these periods and, at the time of writing, had realised this and are positioning themselves to take
incomplete or otherwise incorrect. just announced that it will unilaterally impose advantage.
its own extensions until October 2021. This
Some products are prohibited from entering NI has been met with accusations of bad faith and So far as we as a profession are concerned, the
at all under single market rules. For example, threats of legal action. complexity of the Protocol, and the loss of EU Judicial
sausages and other chilled meats are on the Co-Operation measures in criminal, civil and family
banned list but have been granted a specific six- Article 16 law (including the European Arrest Warrant), will
month grace period and can be imported from undoubtedly generate an increased demand for legal
GB until June. For its part, the EU sparked a furore at the end advice. If local and GB based companies do upsize
of January when it unilaterally invoked Article or relocate here to seek out new opportunities
Some horticultural products are also banned 16 of the Protocol and announced that it would within the EU, that should also see an increase
and others which are not banned need a impose economic controls on vaccines leaving in traditional areas of work such as commercial,
Rowan White plant health certificate. However, soil is on the the EU. This might have led to new checks corporate, employment, immigration and property.
President banned list, as it can carry pests and diseases, along the border between Ireland and Northern
so garden centres are finding that they can no Ireland in order to prevent EU-produced vaccines I remarked in the Autumn 2020 edition of The Writ
longer obtain plants from GB suppliers and are from being shipped to the UK. Article 16 is on the profession’s ability to cope well with change.
All of us will be well aware by having to turn to Ireland or elsewhere in the EU a provision which allows either the EU or UK As we near the end of the first quarter of 2021, it
now that the EU-UK Trade and for supplies. to suspend the operation of any part of the seems that quality will continue to be required since
Co-operation Agreement, and the Protocol that causes “economic, societal or change will almost certainly remain one of the few
One of Belfast’s best known delicatessens, environmental difficulties” and was intended constants in our lives.
Northern Ireland Protocol which
which normally stocks 200 cheeses, 60 of them as a remedy of last resort. Within a few hours,
forms part of it, took effect at the from GB, reported recently that it can now the EU branded its decision a “mistake” and [This article is based on a talk which Rowan
start of this year. only source 2 or 3 of them. No more “Stinking reversed it, following an outcry from the British White gave as part of a briefing by the three UK
Bishop” for the time being? and Irish Governments and virtually all the Law Society Presidents, organised by the UK Law
The concept behind the Protocol is that political parties in both parts of the island. Societies’ Joint Brussels Office, on 10 February
Northern Ireland remains part of the EU On a happier note, the Wine Society, which had 2021].
Single Market for goods while also remaining had to suspend deliveries to Northern Ireland These unilateral actions, coming so soon after
part of the UK’s domestic market. The for several weeks because of difficulties with the implementation of the Protocol, mark an
Protocol is intended to mitigate the risk that its carriers, has been able to resume supplies inauspicious start and do not augur well for
goods originating in GB could enter the EU (albeit on a restricted basis) – much to the relief the future. All other considerations apart, the
single market via Northern Ireland without of its thirsty customers here. apparent readiness of both parties to breach
appropriate regulatory checks. This has their respective obligations is deeply troubling
given rise to many practical difficulties, and These slightly facetious comments are intended from a rule of law perspective.
matters have been exacerbated by a lack of to help make a serious point; namely, that many
preparedness – or perhaps an unwillingness GB based suppliers have paused or indeed Reasons to be cheerful?
to adapt - on the part of some GB traders who permanently ceased supplying into Northern
supply customers in Northern Ireland. Ireland on the basis that the relatively small On a more positive note, some larger
market here does not justify the additional businesses, especially manufacturers, appear
Impact of the Protocol to date hassle and cost involved. All of this has resulted to have been able to gear up in preparation for
in a significant degree of disruption, both to the Protocol and are not only undaunted by it
By way of mitigation measures, the EU and consumers and to local traders, most of whom but see opportunities to use it to expand their
UK have agreed to some ‘grace periods’ to are SMEs and ill-placed to cope with added markets. Northern Ireland will find itself in a
give traders time to adjust. For example, bureaucracy and costs. The UK Government unique regulatory position in the new EU/UK
supermarkets and other food retailers have asserts that this disruption is in the nature of trading landscape. Northern Ireland businesses
been given three months, expiring at the end “teething troubles.” Many others suspect that it will have unfettered access into the UK internal
of March 2021, to adapt to the requirements is structural in nature and therefore likely to be market while at the same time remaining in the
of new sanitary and phyto-sanitary checks. permanent. EU single market for goods - so they will face
Nevertheless, there have been many supply- fewer regulatory hurdles to export into both
chain problems, and complaints of empty The first of the agreed grace periods is due to the EU and British markets. In theory, Northern
supermarket shelves have been widely expire at the end of March 2021, even though Ireland should be a good place for exporters
reported. Hauliers have had to fill out complex many of the underlying difficulties remain to base themselves in the post-Brexit era.
and lengthy new paperwork and some have unresolved. The UK Government has sought, but Early indications suggest that not only locally
reportedly been turned back at ports when not yet obtained, the EU’s agreement to extend based businesses but also GB companies have
14 Ezine of the LSNI Brexit Brexit Ezine of the LSNI 15
Spring 2021 Spring 2021
Brexit and the NI Protocol:
a change in constitutional relations?
the institutions of Strand Three have no power exit in matters that were within NI devolved
to mitigate this new east-west divide. competence. In order to have some minimal
scrutiny, relevant departmental committees in
The reason the United Kingdom left the EU the Assembly attempted to consider in each
ten months later than originally planned is case whether the proposed approach was
because of the out-workings of the shared UK necessary and whether a SI was the correct
and EU commitment to ‘avoid a hard border instrument to meet the challenge. However
on the island of Ireland’. More particularly, they were often inhibited in this task by both
it was because of the difficulty in matching a lack of information and severely limited time
this commitment to the EU’s insistence on to consider it. As a consequence, a considerable
protecting the integrity of its single market. amount of secondary legislation applies now
Katy Hayward, And, even more precisely, it was because of in Northern Ireland, to be implemented by
the impossibility of meeting this objective devolved authorities, without its legislature
Professor of Political at the same time as fulfilling the UK having had any proper exploration of its
Sociology at Queen’s government’s objective of leaving the EU single potential impacts and implications.
“Much of the legislation that will apply to non-member region. In so doing it had to spirit. Where this leaves Northern Ireland can
market and customs union. Impossible, that is,
University, Belfast and without changing the parameters; in this case, Feeble instruments and procedures for scrutiny Northern Ireland falls under the exclusive allow for the integrity of its internal market only be a more tenuous position.
Senior Fellow in the ‘UK in a that meant shifting the border line at which is not only an intra-UK concern. The Protocol competence of its institutions, and it is to be in the hands of non-EU authorities. Both Just as commonplace reference to ‘post-
the EU’s single market and customs code would is a UK-EU Agreement and, for all its many important that oversight of devolved policy sides had to cover the concessions in 2019 by Agreement Northern Ireland’ recognises that
Changing Europe’ think-tank be enforced. drafts, neither side proved to be particularly responsibilities continues to rest primarily making use of the fact that much was still to the 1998 document marked a turning point,
considerate of the devolved status of Northern with the Assembly.” be determined by the UK-EU Joint Committee so post-Protocol Northern Ireland will be very
Thirteen pages and 19 Articles, overseeing the Withdrawal Agreement. But the
The Withdrawal Agreement means that Ireland and its need (let alone right) to a different to what came before. As we have
including seven annexes, constitute What this means in practice is unclear. Also Joint Committee became increasingly mired by seen, its legal environment has changed – both
Northern Ireland is now outwith the European seat at the table. This is perhaps due to the
the legal foundation for a sea Union, and the process of dis-integration from fact that (non-coincidentally) its legislature unclear is the matter of what will happen if UK-EU mutual distrust. And we are long past in terms of the legislation that will apply,
change (no pun intended). The the EU will follow. It is inevitable that this will and executive were in abeyance during the NI Ministers are unwilling or unable to make seeing the benefits of ‘constructive ambiguity’. and in the ways such legislation comes to
UK-EU Withdrawal Agreement, affect North-South cooperation. The Protocol withdrawal negotiations. But we should regulations necessary to implement the apply in Northern Ireland. The challenge for
charges the UK-EU Joint Committee with not underestimate the significance of the Protocol, or if the Assembly chooses either to The UK government places so much policymakers in Northern Ireland has become
incorporating the Protocol
‘keeping under constant review the extent Protocol for Strand One. Northern Ireland is annul or not to approve any such regulations confidence in its exclusive responsibility for more complicated. They will increasingly
on Ireland/Northern Ireland, that are made. The potential for Stormont/ operationalising the Protocol (notwithstanding
to which the implementation and application dynamically aligned to a substantive portion of have to consider the possible implications of
transforms all three strands of the Westminster tensions is evident. Lest we the presence of EU observers) that it assumes legislation coming from the UK and EU for its
of this Protocol maintains the necessary the EU acquis. This means that its statute book
1998 Agreement. This is in part conditions for North-South cooperation’ will have to adjust as the legal instruments forget, the Assembly did not give its consent the enforcement of the rules is, to all intents devolved competence, for North-South, and
because of Brexit itself, and in part (Article 11ii). However, (with the exception incorporated into the Protocol are updated to the EU Withdrawal Act [it was not sitting], and purposes, in its bailiwick and thus East-West integration and cooperation. And,
because of the near-extraordinary of the Single Electricity Market) there is no and amended at EU level. The EU is to inform to the EU Withdrawal Agreement Act [which ultimately subject to what it thinks best. Its even where they have no means of shaping
accompanying Annex or even explanatory the UK of such proposals through the Joint it unanimously rejected], to the UK Internal unilateral decisions (announced on 3 March) to the legislation itself, NI policymakers will have
implications of the Protocol.
memorandum on how the conditions Consultative Working Group (which currently Market Act [it was not given the opportunity], extend grace periods and, indeed, shelve some to seek to manage its consequences.
‘necessary’ for North-South cooperation will be appears to exist in name only). How Northern nor to the EU (Future Relationship) Act [it was pre-existing Sanitary and Phytosanitary (SPS)
Most obviously, the British-Irish relationship
measured, let alone maintained. Ireland officials and elected representatives can not asked]. rules can be seen as giving itself an unofficial Yet in other ways, many fundamental principles
is no longer that of ‘partners in the European
scrutinise these and inform the UK’s response period of transition (after having refused and conditions have not changed at all. The
Union’. The two states are not heading
Central to it all, Strand One is also affected to them, let alone the process by which they All of this points to momentous adjustment to extend the official one in 2020). They 1998 Agreement provides for the NI Assembly
towards ‘ever closer union’ but into period of
by the change of legal landscape. Northern will be incorporated into NI law, is still to be for post-Protocol Northern Ireland. This is are technical and temporary measures, the to ‘protect the rights and interests of all sides
growing distance, if not mild estrangement.
Ireland now follows devolved legislation, UK seen. compounded by the fact that the two parties argument goes, simply to relieve some of the of the community’. Legislation applying in
The good news that came on Christmas
legislation (in reserved matters), retained responsible for negotiating and managing pressure. However, the question of what comes Northern Ireland must be compliant with
Eve 2020 of the Trade and Cooperation
EU legislation (through the Protocol), and it appear to interpret it very differently. To next remains paramount and unanswered. The the European Convention on Human Rights.
Agreement was primarily that, after months UK authorities are responsible for
amended EU legislation. The latter includes some degree, this is to be expected. The EU promised neither flexibility nor mitigations ‘All of the institutional and constitutional
of mutual frustration, the UK and EU had implementing the provisions of EU law that
regulations made by UK government ministers. Protocol represents a set of compromises once the deal was done. Even the grace arrangements’ in effect across all three strands
managed to get something over the line. apply to Northern Ireland through the Protocol
The EU Withdrawal Act (2018) and EU which neither side wanted to have to make. periods jointly agreed in December 2020 were are ‘interlocking and interdependent’. And the
Beyond that, the substance of the deal was (Art 12ii). The EU Withdrawal Agreement
Withdrawal Agreement Act (2020) granted The UK conceded that the rules required by a never written into EU law; and they rested British and Irish governments must still wish
disappointing to most. It certainly does little Act (2020) states that a UK Minister or a
powers to ministers of the UK government hard Brexit would not be possible to enforce on UK unilateral declarations to align with ‘to develop still further the unique relationship
to keep Britain and Ireland in close orbit. The devolved authority, including a Northern
to make regulations in devolved areas of at the Irish land border. It thus allowed for an necessary EU regulations. As such, they were between their peoples and the close co-
Protocol itself also alters the conditions for Ireland Executive Minister, ‘either acting alone
competence by way of statutory instrument Irish Sea border; this makes the UK internal markers of trust and good faith. Both qualities operation between their countries’. To manage
British-Irish relations, whilst offering little to or jointly’, may make regulations to give
(SI), where they intersect with EU law. In market rather lopsided, with unfettered are gone. Within three months, the EU decided the sea change that is marked by the UK-EU
shore them up. Indeed, it exacerbates the effect to the Protocol. (Sections 21 and 22).
August 2020, the First Minister and deputy access in one direction only. The EU conceded it to take legal proceedings against the UK Withdrawal Agreement and its Protocol on
Brexit disruption to east-west relations in the In correspondence (6 January 2021) to the
First Minister informed the Assembly that that the four freedoms of its internal market for a second time over the Protocol. The UK’s Ireland/Northern Ireland, we might steadfastly
creation of a customs and regulatory border Committee for the Executive Office, Chancellor
around a hundred potential SIs were to be could, after all, be separated, and that free unilateral action has infringed the Withdrawal hope that Northern Ireland will remain – first
down the Irish Sea. Although they have some of the Duchy of Lancaster, Michael Gove, said in
made by UK Ministers to facilitate a smooth EU movement of goods could be granted to a Agreement, it claims, both in letter and in and foremost – post-Agreement.
potential for future expansion and innovation, respect of the Withdrawal Agreement that,
16 Ezine of the LSNI Brexit Brexit Ezine of the LSNI 17
Spring 2021 Spring 2021
The Bridge to Adequacy Brexit - is taxing
Looking at the VAT implications for your business
Data Protection Board, then an approval Human Rights and submission to the jurisdiction This had led to very peculiar VAT positions for searches and other due diligence on a specific
from representatives of EU countries and of the European Court of Human Rights. some businesses on the movement of goods, property. In these cases the place of supply of
it can then be adopted by the European such as those businesses moving goods from those services (and therefore where the VAT
Commission. It notes that continued adherence to such
Great Britain, through Northern Ireland to should be accounted for) is where the land
international obligations is therefore a
the EU. itself is located, irrespective of where you or
At any time, the European Parliament and particularly important element of the
your customer belongs.
the Council may request the European assessment on which this Decision is based. Thankfully the position regarding VAT on
Commission to maintain, amend or withdraw The draft Adequacy Decision provides for services is clearer. UK businesses (including UK businesses are no longer required to
the adequacy decision on the grounds that continuous monitoring of the application of Northern Ireland businesses) providing services complete an EC Sales List when supplying
its act exceeds the implementing powers the legal framework upon which the decision to overseas customers should find getting the services to businesses located in the EU
provided for in the regulation. is based, including the conditions under which correct UK VAT treatment more straightforward. (although NI businesses will still have to
onward transfers are carried out, with a view to
Fiona Donnelly On 19 February 2021, the Commission assessing whether the United Kingdom continues Angela Keery The “general rule” is that professional services complete an EC sales list relating to the sale of
(such as legal and consultancy services) billed goods to the EU).
launched the procedure for the adoption
Solicitor of two adequacy decisions for transfers of
to ensure an adequate level of protection. Tax Director, to customers outside of the UK post 01 January
In terms of GDPR we are on the bridge to
personal data to the United Kingdom, under Therefore, we have almost crossed but, when Baker Tilly Mooney Moore 2021 will be outside the scope of UK VAT Whilst the UK Vat position is relatively clear, you
(on the basis that the supply is made where will need to ensure that the service you provide
the General Data Protection Regulation on the other side, various matters can come into
adequacy. What we have come to know and the customer is based), this is regardless of outside the UK does not give rise to a liability
(GDPR) and the Law Enforcement Directive play which will be of relevance to EU monitoring. As professional service providers in Northern
love as the GDPR is of course an EU Regulation whether the client is a business or a consumer. to register for VAT in the country in which it is
(LED) respectively. One example of this is the UK National data Ireland, we haven’t had to face some of the
and as such no longer applies to the UK. In It is important to note that there are a deemed to have been supplied. You may need
Strategy which seeks to invest heavily in biggest Brexit tax changes around Tariffs,
practice there is, for now, little change to The draft Adequacy Decisions are now with number of services to which the general rule to contact the Foreign Tax Authority in each
digital technology and press forward with its Customs Declarations and checks on goods
the core data protection principles rights and the European Data Protection Board. The regarding the place of supply do not apply – jurisdiction for clarification.
interconnected pillars of data foundations (data for example. However, there are many other
obligations as the GDPR has been incorporated GDPR draft reads: such as Transport, Hire of Transport, Events,
systems), data skills (investment in data talent), tax implications for our businesses and for
into UK data protection law as the United Intermediaries and Land and Property Services. Unfortunately, more VAT changes will come
data availability (co-ordinated accessibility to our clients.
Kingdom General Data Protection Regulation “ The Commission considers that the If the service that you are providing falls under into force in the coming months. The next
data), and responsible data (protection of data fundamental set of changes in the EU occurs on
(UK GDPR). UK GDPR and the DPA 2018 ensure a We all know that how businesses in Northern these categories you need to review the
but to allow for innovation and research). Data 1 July 2021 with the extension of the VAT one-
level of protection for personal data Ireland now trade with Great Britain and the specific rules to determine whether the service
Data processed before 01 January 2021 will technology and the use of AI are likely to be stop shop for all services to consumers. Where
transferred from the European Union EU is set out in the Northern Ireland Protocol, you have provided is deemed to have been
be subject to the GDPR as it stood on 31 huge growth areas and areas where lowering services are supplied to EU consumers by a UK
that is essentially equivalent to the and that one of the biggest challenges in the supplied in the UK or elsewhere as VAT will be
December 2020. From 01 January transfers of of safeguards may not be tolerated in an EU business, a VAT registration will be required in
one guaranteed by Regulation (EU) NI Protocol, was around VAT. accounted for where the service is deemed to
personal data are covered by a bridging clause context. The National Data Strategy states one of the EU member states and the business
2016/679.” have been supplied.
which allows full data flow under this bridge a determination to seek positive adequacy will then need to account for VAT to the EU
The main issue is that Northern Ireland
between the EEA and the UK. This solution is The decision highlights areas of importance decisions from the EU, under both the General Of these services, the area that you are using that single VAT return, but charging VAT at
remains in the EU single market regarding
likely to be applicable until the end of June on which are likely to be relevant in the ongoing Data Protection Regulation (GDPR) and the Law most likely to come across are land related the rate applicable in the member state of the
goods and has to apply EU Vat rules to goods.
the commitment of the UK not to change the monitoring of any Adequacy Decision that is Enforcement Directive (LED), before the end of services, such as conveyancing and drawing customer. Further information will be published
However, Northern Ireland is still part of the
current data protection regime. made. the transition period. However, it also highlights up of contracts of sale or leases, including title nearer to the implementation date.
UK and has to apply UK rules to services.
a culture of risk aversion and privacy and
Then an Adequacy Decision is required. It specifically mentions that the oversight security concerns as potential barriers to data
Adequacy Decisions are how the EU mechanisms and redress avenues enable availability.
determines if a non-EU country has an infringements to be identified and punished If you have any queries on any aspect,
adequate level of data protection. They are in practice and offer legal remedies to the Trade negotiations with the US and what they please contact Angela Keery,
unilateral decisions taken by the European data subject to obtain access to personal data say about data protection will be relevant Tax Director, Baker Tilly Mooney Moore
Commission after an assessment of a country’s and the rectification or erasure of such data. especially in relation to electronic data as will E: angelakeery@bakertillymm.co.uk
the investigative powers of US authorities.
GDPR
data protection framework. ‘Data adequacy’ It also confirms that any interference with or Tel: 028 9032 3466.
is the status granted by the European the fundamental rights of the individuals The effectiveness of the UK regulator will always
Commission to countries outside the EEA whose personal data are transferred from be of interest to the European Commission as
whose level of personal data protection is the European Union to the United Kingdom will the UK Investigative Powers in the context
judged to be essentially equivalent to the EU’s. by United Kingdom public authorities for of the ECHR.
Once a third country has received a positive public interest purposes, in particular law
So the law on GDPR is largely the same for
adequacy decision, personal data can flow enforcement and national security purposes,
now but practitioners need to look out for the
from the EEA to that country without any will be limited to what is strictly necessary to
final Adequacy Decisions, keep an eye on the
further safeguard. Examples are the Adequacy achieve the legitimate objective in question,
National Data Strategy and how it seeks to
Decisions received by New Zealand and and that effective legal protection against
shape data sharing and note the minor changes
Switzerland. such interference exists.
in the UKGDPR which are helpfully highlighted in
The European Commission makes a proposal It refers to both the UK’s domestic regime and this link:
for the adoption of an adequacy decision its international commitments, particularly https://www.gov.uk/government/publications/
and seeks the opinion of the European its adherence to the European Convention of data-protection-law-eu-exit
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