Established in 1999, the Bar Council’s Brussels office comes of age this year. As its Consultant Director, I have had the privilege of being the Bar’s eyes, ears and mouthpiece in Brussels ever since. Having practised at the Bar in the late 1980s, I had pursued a variety of other roles in the intervening years. As it turned out, each career step contributed something valuable to what I offer the Bar in this capacity: advocacy skills and a broad understanding of the profession garnered from a wonderfully eclectic ‘knock about common law’ practice; an insider’s view of the workings of the European Commission; a grasp of life as a competition lawyer in a big city firm; and the networking, organisational and editorial skills that I honed while working for a Brussels-based EU policy think tank.
1999 was an auspicious year for such an EU-facing start-up in the legal field. On 1 May, the Treaty of Amsterdam entered into force. From that date, judicial cooperation in civil matters moved from intergovernmental to ‘Community’ competence. Though judicial cooperation in criminal matters would remain intergovernmental for some years yet, from then on the Commission could sink its teeth into member state proposals in the field. Taking on this new workload was the Commission’s newly created Directorate General for Justice and Home Affairs (DG JHA), formed from a small working group that had been beavering away within its walls since 1995. The scene was completed when the member states, at the October European Council, adopted ‘the Tampere Programme’, laying down the EU’s JHA policy agenda for the coming years. Thus, from 1999 onwards, DG JHA began tabling proposals for binding legislation in the civil justice field and developing looser framework decisions on the criminal side. It also began the journey that would lead to the adoption of the EU’s Charter of Fundamental rights. All this, on top of the work launching elsewhere within the Commission, to eg develop the Single Market for services, the consumer protection acquis and early sorties into the challenges of e-commerce, meant the stage was set for a lot of innovative EU law making. And the Bar was right there.
During its 21 years of operation, the Brussels office has defended or pursued the Bar’s interests, as well as those of its clients’, in many areas of substantive, procedural and regulatory law. Building on the profession’s long-standing reputation, over time the quality and thoroughness of our opinions, responses to consultations; speeches and contributions to expert working groups, placed the Bar Council among the key legal stakeholders whose input was sought and valued by EU law and policymakers across a wide range of activities. Early highlights included the influential preparatory work we did with DG JHA officials on an EU extradition instrument which evolved into the European Arrest Warrant (EAW), rapidly adopted in the wake of terror attacks in the early 2000s. Ripe for revision it may be, but it has proved its worth over the years. A protracted and eventually successful Bar effort ensured that Commission plans for a European Contract law improved the quality and consistency of EU sales law but did not encroach on business to business contracts. We positively influenced the scope and content of many EU measures, including the cornerstones of EU private international law; as well as measures on mediation; legal aid in cross-border civil cases, and services in the internal market, to name but a few. Our insights on professional regulation and the evolving legal services market have been valued in Brussels and beyond, the more so following the domestic changes wrought by the Legal Services Act 2007. We shared our best practice experience when DG JHA turned its attention to developing procedural safeguards for suspects and defendants, and later to victims’ rights. The same is true of EU work on collective redress and data protection. And of course, the renown of Bar bodies such as the Intellectual Property Bar Association on the European scene, or of our members’ advocacy before the Court of Justice of the EU (CJEU), is second to none. Each year, the incumbent Chair of the Bar has visited Brussels at least once, meeting high-level EU officials, politicians, stakeholders and office holders of other national bars, with all of whom relationships of mutual trust and respect have been built and ideas and insights exchanged. That mutual respect was underlined by the incumbent JHA Commissioner when guest of honour at a Bar Council event in London in 2011. Working closely with the Bar’s EU Law Committee, as well as other committees and specialist bar associations, I have coordinated the submission of literally dozens of well-received Bar responses to EU consultations over the years. All in all, it is an output of which the Bar can be proud.
The UK in the EU
There was a perceptible shift in the UK’s engagement with the EU about a decade ago, which, with the benefit of hindsight, was a portent of things to come. In 2009, UK conservative MEPs withdrew from the largest and most powerful political group in the European Parliament, instead forming a small Eurosceptic group with other like-minded MEPs. Specifically in the justice field, as readers know the UK and Ireland had secured their own protocol to successive treaties, allowing them to choose whether or not to opt into individual EU judicial cooperation measures. The issue of UK participation in the EU legislative process even if not ‘opted-in’ had by then become a source of others’ discontent, leading to charges from some member states of ‘having your cake and eating it too’. This charge was levelled more firmly when, having successfully changed the drafting, the UK chose not to sign up to the resulting 2012 Succession Regulation. As we pointed out at the time, the EU regulation as adopted remained at odds with our system, but nonetheless, many were irritated.
The UK’s use of its opt-outs in the justice field was thrown into sharper focus as we approached the fifth anniversary of the entry into force of the Lisbon Treaty, which, inter alia, gave the EU competence in the criminal justice field for the first time. By the terms of its Protocol 36, for that initial five-year period the CJEU’s jurisdiction over pre-existing (and thus intergovernmental) criminal justice measures (including the EAW) would remain limited. Protocol 36 gave the UK the right to refuse to accept the jurisdictional changes, at which point all such existing measures would cease to apply to it. As we know, the UK did so refuse. There followed two years of time-consuming negotiations, at the end of which the UK opted back in to one third of the measures, the rest being largely obsolete or already superceded. It was seen in Brussels as a politically driven, wasteful exercise. On top of the UK’s non-participation in other European projects such as the Euro and Schengen, many were openly starting to question the UK’s commitment to the EU.
The Protocol 36 negotiation overlapped with the 2012-2014 UK government’s Balance of Competences Review, which comprised consultations assessing this balance between the EU and UK across thirty-two fields of activity. I was involved in the development of all nine of the Bar’s contributions to this intensive exercise. It was, even then, seen as a wasted opportunity: had the review been undertaken in cooperation with say, a couple of other member states instead of purely domestically, it could have prompted real debate and possibly change at EU level, were change identified as needed. Instead, the largely pro-status-quo results were all but forgotten.
The rest, as they say, is history.
Brexit happened on 31 January 2020. The UK is now a third country and will have left the EU Single Market and Custom’s Union by the end of this year. Everyone acknowledges the UK’s valuable contribution to the EU over the years of its membership, and its loss at the table is already being felt. There is regret in Brussels and beyond but the EU now has other priorities.
I produced the original draft of this piece in late May 2020. Even at that time, the news emerging from the successive rounds of complex EU-UK negotiations on their future relationship was discouraging. The Europe-wide measures to try to contain COVID-19 made an already ambitious timetable near impossible, compounded by the UK’s decision not to seek to extend the transition period beyond the end of 2020. Relations then worsened over the summer. As I write, the draft UK Internal Market Bill is before Parliament and the row over its compatibility with international law has prompted ministerial resignations. Quite apart from the immediate and complex implications for the Withdrawal Agreement and for Great Britain and the island of Ireland, the Government’s actions have called into question its commitment to the rule of law and its good faith and integrity in its dealings, not only with the EU but also on the wider international stage. Nonetheless, the EU understands that it remains in everyone’s best interests to secure a stable (trading) relationship with the UK going forward. Thus the EU remains at the negotiating table. However, it has not ruled out the possibility of bringing proceedings against the UK for breach of its Treaty obligations.
The risk of a no deal, or at most a limited deal on trade in goods, at the end of the transition period, has never been higher. Whatever the immediate outcome, negotiations in one form or another will surely continue for months if not years to come. The Bar Council has been tireless in contributing to the legal debate and we will maintain efforts to try to secure arrangements to allow barristers to continue to serve their clients’ interests on matters EU, and so far as possible, to preserve legal certainty and continuity for individuals and businesses.
My personal take
That the UK is in this situation is a matter of huge regret to me. Brussels has been my chosen home for 30 years. I married and raised my family here. I do not see the EU as the pure marketplace that many in the UK seem to see. I see an extraordinary experiment by a group of sovereign states and peoples, divided by war through much of their history, coming together to strive for collective peace and shared prosperity, something no one nation could hope to achieve alone. That it has held onto, and indeed advanced, that goal, however imperfectly, for over 60 years, is a wondrous achievement. That it should continue to do so going forward is, I consider, imperative. Beyond the enormous immediate challenges posed by COVID-19, Europe is faced with handling the ensuing economic downturn; enhancing sustainability and self-sufficiency in supply chains; tackling climate change and inevitable future waves of migration; maintaining respect for the rule of law and fundamental rights; fighting terrorism and other security threats; developing tools to manage and enhance the inexorable reach of artificial intelligence into all aspects of our daily lives and much else. These are, correctly in my view, judged to be challenges that European states are best equipped to meet together, as a Union, however imperfect.
It is part of my professional role to understand and respect both sides, as it was when in practice at the Bar. But I was asked to share my personal view in this contribution. I consider it a fundamental mistake and abdication of responsibility for the UK to have chosen to leave the EU at all, and especially now.
On 16 September, the President of the European Commission, Ursula Von der Leyen set out the Commission’s stall for the coming years in her ambitious State of the Union Speech 2020. The EU is about to embark on a couple of years of collective self-examination, entitled ‘Conference on the Future of Europe’, which may lead to reform. UK stakeholders are actively increasing their footprint and network in Brussels in order to counter the loss of UK influence at the EU legislative and policy-making table. The UK remains in Europe. The EU will remain its closest and, realistically, largest trading partner. EU law and policy in areas like those listed above will inevitably impact the UK, whatever the formal relationship. Accordingly, the Bar remains committed to continuing its constructive engagement on EU law developments that may have an impact on its clients or practice, and I look forward to continuing my work in support thereof.