Formed within days of the vote, the Bar’s Brexit Working Group (‘the Working Group’) is busy gathering and assessing evidence, and developing policy strategies to ensure that, whatever the shape of the UK’s future relationship with the EU, the Bar is well placed to make the most of the opportunities and minimise the pitfalls. My thanks are due to several members of the Working Group for input into this piece.
At this early stage, with Art 50 TEU not yet triggered, and no clear vision of either the UK or the EU’s negotiating positions, it is important that the Bar provides its legal expertise to influence the policy that will determine not only the shape of the future UK-EU relationship, but also the relative prosperity of the Bar in the new firmament. Though many interest groups will claim otherwise, not every sacred cow can be saved, and the loss of some will have wider repercussions than of others.
Impact on international practice
The export of UK legal services generates £ billions annually. A key element of that is the ability of legal professionals, including barristers, to provide legal services across national borders within the European Economic Area (EEA: the 28 EU member states, together with the three EFTA states Iceland, Liechtenstein and Norway). There is thus a strong business case for the UK maintaining maximum possible cross-border practice rights for its lawyers, including barristers, post-Brexit. Cross-border rights include, in particular:
- Establishment on a permanent basis in other member states: currently possible under the Lawyers Establishment Directive 98/5/EC, allowing registration with the host state Bar, which can lead to the acquisition of the host professional title.
- Advising clients in other member states whether on issues of EU law, domestic law (including the law of the host member state) or international law: currently possible under the Lawyers Services Directive 77/249/EC, with no local registration requirement.
- Representing clients in the domestic courts and tribunals of other member states: currently possible under the Lawyers Services Directive, provided that advocacy is undertaken in conjunction with a host state lawyer. Thus, barristers from a broad range of practice areas currently advise and represent clients across the EU, not only in commercial proceedings, in the areas of private and public international law and international financial services, but also in family law, succession and personal injury cases, to name but a few. Barristers also act as arbitrators in numerous EU member states, an activity which, post-Brexit, could not be guaranteed in any state which classed it as the supply of a legal service.
- Advising and representing clients (UK or otherwise) in Commission investigations, especially competition proceedings: only possible for EEA-qualified lawyers, since the EU rules only recognise legal professional privilege in relation to lawyers entitled to practise in a member state.
- Representing clients in the European courts in Luxembourg: limited by statute to lawyers authorised to practise before a court of an EU or EEA state. Since it is now possible to bring references for preliminary rulings in criminal cases before the European Court of Justice, Brexit could nip in the bud a potential growth area for the criminal Bar, as well as leading to a reduction of work for more ‘traditional’ EU law practitioners.
Fewer cross-border practice rights = less work?
The role of the UK’s legal system, and access to it, underpins significant other services and investment. It is a hub not only for EU transactional work such as merger filings, but also, increasingly, for litigation in the EU courts and follow-on damages litigation related to Commission competition investigations. The same is true for complex multi-national intellectual property litigation in which London is a widely acknowledged centre of expertise with a specialist Bar. Major international clients are sophisticated litigators, and are choosing to bring cases in the UK rather than in other member states because of the critical mass of experience and expertise of UK lawyers, and of the many lawyers from other member states who choose to work here, as well as litigation advantages of the UK courts (such as the disclosure rules). A vast amount of this work will be lost if UK lawyers lose access to the EU market for legal services and EU lawyers lose their right to practice here. This will in turn reduce the attractiveness of London to, for example, top US law firms who use the UK as their passport into the EU legal market by instructing or employing barristers.
With all that at stake, the Working Group is exploring ways to retain the Bar’s cross-border rights, both through the terms of the Brexit deal itself, and through possible arrangements with the Bars of other member states.
Impact on UK as jurisdiction of choice
Apart from the mass of high calibre legal professionals that the UK offers, its law and courts are in themselves a major international draw. That remaining the case post-Brexit depends in part on our retaining the regime set out in Regulation (EU) No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (‘Brussels I’). By its terms, civil and commercial judgments of the courts of EU member states are to be enforced throughout the EU as if they were judgments of a court of the member state in which enforcement is sought. This and other features promote certainty in relation to jurisdiction, service and enforcement throughout the EU. Given that international trade relies upon being able to enforce legal obligations across national boundaries, any future arrangement that does not provide the same or similar rules when the UK leaves the EU, coupled with the loss of recourse to the courts in Luxembourg, would risk making English jurisdiction and choice of law clauses less attractive. The potential impact that that could have on the Bar is obvious, and our Working Group is carefully examining ways forward.
Impact in other areas of practice
Of course, the Bar is more than the sum of its parts and those parts are more than just international, civil and commercial practice, important though these are. The law, procedure and practice in a surprisingly wide range of fields could be affected if a so-called ‘hard’ Brexit emerges. There is not the scope to cover all potential implications here, but I refer you back to the Bar’s position paper anticipating the referendum, for a detailed overview.
By way of brief example, however, the Bar is even now lobbying for the UK to opt into the new EU Commission proposal revising the existing Brussels IIa Regulation, which governs jurisdiction, recognition and enforcement in matrimonial and parental judgments. We do not want to abandon the advantages which that Regulation has brought both in relation to the jurisdictional issues arising upon divorce and to international disputes in respect of parental rights, responsibilities and orders. Similarly, there are fears of a lowering of standards in the area of data protection if the UK were not subject to the (recently revised) EU data protection rules. English employment law currently incorporates a significant volume of EU legislation including laws on discrimination rights, duties to agency workers, working time, maternity and paternity leave. In the event of a ‘hard’ Brexit, it would be open to a future government to maintain, amend or repeal, the current legislation, as it could also in the environmental field, for example as regards air quality. Protection of injured consumers could be reduced from that currently laid down by EU legislation, with regard to package holidays, defective products, food safety, defective toys and similar products and services either produced or provided in another EU member state. And, in the criminal law field, it will be more difficult to trace, freeze and confiscate the assets of criminals in Europe; and to arrange the giving of evidence, or the obtaining of details of relevant previous convictions, from EU member states for use in UK trials. Moreover, the European Arrest Warrant would cease to apply to the UK, making extradition in both directions significantly more cumbersome.
Looking ahead, our ability to influence policy and the content of future laws across these areas will be substantially curtailed if the terms of the UK withdrawal mean that much of our law continues to track EU law, but the UK no longer has a role as an EU lawmaker.
Opportunities for the Bar?
Of course, Brexit brings with it opportunities for the Bar too, which the Working Group is striving to identify, facilitate and promote. In particular in the run up to and immediate aftermath of Brexit, all government departments will need considerable expert legal assistance in determining policy priorities and later, unravelling EU law from UK law and rewriting the latter as necessary. Similarly, clients will be seeking advice on the potential impacts on their interests for several years to come. Longer term, these legal changes will give rise to considerable training needs.
All of these issues, and more, will be explored at the Brexit-related sub-plenary to be held at the Bar and Young Bar Conference on 15 October: ‘Brexit: What now for the EU, the UK, and the Bar?’ An opportunity to hear from those closest to these issues, and to voice your own hopes and concerns.
Follow the Bar Council’s Brexit-related work; read the position paper; join the Brexit debate at the Bar and Young Bar Conference 2016.
Contributor Evanna Fruithof is Consultant Director of the Bar Council’s Brussels Office