Some may not believe this, but Brexit gets little attention elsewhere in Europe. For our politicians and media, it is all-consuming, interrupted only by a few weeks’ excitement in Russia and the antics of Mr Trump. Little else is getting done. Huge sums are being spent on court modernisation, for example, without the statute needed to underpin it; and no time has yet been found for urgently needed legislation to prevent those complaining of abuse in family cases from being cross-examined by their alleged abusers.
So as we approach the last summer holiday season as members of the EU (assuming nothing momentous happens before 29 March 2019), an update and a few thoughts on Brexit may be timely.
The Bar Council—and I, in my capacity as Chair—have remained neutral on the politics of leaving or remaining. Our stance has instead been guided by the public interest, and by the needs of those barristers and clients whose interests are most affected.
I claim no special insight, but one of the privileges of my position is that I sit around many tables with those who really do have insight, even if they are guarded in what they say (and, on the UK side, still waiting to find out what they are asking for). This helps me to read the runes, at least in the legal sphere.
On the current timetable, we will reach a crunch point in October: the point at which the Withdrawal Agreement needs to be settled, alongside any arrangement for an ‘implementation’ or ‘transition’ period (the name depends on your perspective) and an outline of the future relationship. We may yet miss that deadline.
Two years after the referendum, is reality finally sinking in on all sides of the UK’s internal divide? Sadly, I am not sure it is, although there is a better understanding of the consequences in at least some quarters. We can take a degree of credit for this—and by we, I mean the Bar Council and the many barristers who have contributed to our Brexit Papers (of which there are now 26), other Brexit-related publications, and Brexit roundtables. We have been trying since the earliest days to explain the implications and to identify possible arrangements for the future, so as to encourage informed debate, and we know that we have earned the gratitude and respect of many, including key politicians and civil servants.
The urgency of the need to settle the UK’s negotiating position can hardly be lost on anyone now, but it is still unclear whether we have reached a position that will hold. I make no predictions, save to say that it strikes me that only a minority are likely to be happy with the final outcome, whatever it may be: there are just far too many irreconcilable aims and desires, most of which take little account of the nature of the EU. Whatever you may think of it, the EU is not akin to a nation state: it remains a legal construct, and the consequential weakness of its institutions has led its leaders to make protecting its integrity their top priority.
In contrast, the UK seems to have been applying traditional British pragmatism, reflected in our common law, in focusing on problems and solutions, developing relationships incrementally, and seeing the world in practical terms. That does not sit well with the continental approach: one reason, perhaps, for our unsettled relationship with Europe. Europe will feel the loss of that pragmatism when we leave: a matter of regret for all those I have met in Brussels. It will be a loss for the Court of Justice too when the Bar—among whose ranks many of its best advocates can be found—are deprived of the right to appear.
So what does Brexit now mean for the Bar? For those with an EU law practice, significant change looks inevitable. Those who can have already arranged their move to Brussels. For others, our discussions with the Bar of Ireland have led to a clearer and easier process for joining the Irish Bar, which is likely to prove the most attractive and feasible option, if they are willing to work out of Dublin. Despite the inevitable loss for England and Wales, I hope that they will all keep up their links and their membership of our Bar.
We also face a real prospect of ‘no deal’ with the EU on rights to practise and to advise clients in Europe, whether as lawyers, experts or arbitrators. Without an effective deal, the extent to which barristers will be entitled to work in these ways in EU member states will depend on national laws. Any gaps will have to be filled on a country by country basis, through agreements with governments and/or national and local Bars. Experience has already proved that some are more open to this than others.
What of civil justice co-operation: most obviously, the recognition and enforcement of judgments in commercial, civil and family cases? This matters because even the best alternative international treaties are trailing some way behind the arrangements within the EU. A future deal on this is not proving to be as easy as we had hoped, and this is now our top priority. We have even prepared a draft international treaty to show how readily this could be achieved. All that it needs is political will. We believe that this exists on the UK side, but it is far from clear that the EU thinks the same.
As for criminal justice and security co-operation, the jury is still out and is taking its time.
Once we have some clarity about the future deal, the Bar Council will have to decide what further negotiations of our own to conduct to try to protect the Bar’s position in Europe. The prospect of ‘no deal’ for the law may be growing but we will continue to argue for the best deal we can, for the Bar and our clients, until March 2019 and beyond.
Contributor Andrew Walker QC, Chair of the Bar