Brexit and the Bar, David Wurtzel reports

International Committee and EU Law Committee

International Committee and EU Law Committee

 

  • Moderator Amanda Pinto QC, Chair of the International Committee, 33 Chancery Lane
  • Speakers Hugh Mercer QC, Chair of the Bar Council Brexit Working Group; Gordon Jackson QC, Dean of the Faculty of Advocates; Paul McGarry SC, Chairman of the Bar of Ireland; Liam McCallum QC, Chairman of the Bar of Northern Ireland; Paul Hopkins QC, Leader of the Wales and Chester Circuit; Evanna Fruithof, Consultant Director, Bar Council Brussels Office

‘Has anything become clearer about Brexit?’ was the opening question posed by Amanda Pinto QC, Chair of the Bar’s International Committee. The answer must be a qualified No, despite the best efforts of the distinguished panel.

Hugh Mercer, QC, Chair of the Bar Council Brexit Working Group quickly took us through key issues for the Bar. Barristers who are already in a legal establishment in an EU country (eg dual qualified) will be deemed resident and will be allowed to continue to practise there. Those who provide legal services in the EU ad hoc will be at the mercy of local rules unless something is agreed in the negotiations. Cooperation in civil and criminal law matters requires reciprocity and matters in dispute have always been adjudicated by the European Court. That cooperation will also end without an agreement.

Evanna Fruithof, Consultant Director, Bar Council Brussels Office, cast a sombre light on the prospects for the future. She explained that the EU approach to negotiations was well known long before the triggering of Art 50. The EU has thus been surprised at how unprepared the UK has been, and at our lack of clarity as to what the UK is actually seeking. With time running out the Commission is being realistic in preparing for eventualities.

Rhodri Williams QC of the Wales and Chester Circuit and Mercer highlighted three of the problems in the current withdrawal Bill: a potential ‘land grab’ by Westminster viz the devolved Assembly; the broad powers given to Ministers and how they can be challenged; and the basis on which judges can apply European Court judgments, with the knock-on problem of how barristers can advise their clients with any certainty.

Paul McGarry SC, Chairman of the Bar of Ireland and Liam McCallum QC Chairman of the Bar of Northern Ireland agreed about the effect of Brexit on the Good Friday Agreement. The cornerstone of the Agreement is free movement, a common travel area without a physical border, and that Northern Irish citizens are EU citizens. That is incompatible with a hard Brexit, which makes the border problem (omitted from the Prime Minister’s Florence speech) insoluble. As with so much else, the EU awaits this country’s clear proposals.

Delegates were given a conference app to vote on issues including ‘do you think there will be an ongoing role for the Court of Justice of the European Union after the Brexit date?’ (80% voted yes); and ‘will the concept of proportionality introduced into UK law survive Brexit?’ 

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.