Reassure the Bar on Brexit

‘No Deal’ is looking ‘No Good’ for lawyers and their clients. Rival jurisdictions are jostling for position. It’s high time the government heeded repeated legal advice, argues Bar Chair

The Bar Council adopted a neutral position during last year’s EU referendum campaign, although in the public interest and in order to try to inform debate we published succinct and accessible papers on the legal consequences of exiting the EU.

Since the referendum, and whilst the politics and debates have lurched in every direction, we have continued to spell out, in our Brexit Papers (now in their third edition and 24 in number), some of the critical considerations of exiting the Union as they may affect families, migrants, businesses, employers and employees, consumers, victims of traffic accidents, the environment, fisheries and farming, financial services, cross-border law enforcement, product standards, intellectual property rights and competition law, tax – and yes, because we work in all these fields, how lawyers themselves will be affected.

Others, including the Commercial and Chancery Bar Associations, the City, the Judiciary, The Law Society and many other experts in the legal services sector, have also been drawing attention to what is at stake and coming up with some constructive suggestions as to the way forward, given the potential impact on our standing upon exit from the Union.

What is our current standing? There are only so many statistics that you can digest at once, but try these. The legal services sector adds more than £25bn gross value to the UK’s economy each year, almost three times the size of the German legal sector and six times bigger than that of France. The UK accounts for 10% of global legal services fee revenue. 27% of the world’s 320 legal jurisdictions are founded on our common law. The law of England and Wales governs 40% of global disputes involving arbitrations. Two-thirds of nearly 1,100 claims issued in the UK Commercial Court in 2015 involved at least one party whose address was outside England and Wales.

There is quite a lot at stake, and many competitors, not just in the EU-27 but in rival jurisdictions hoping to oust the UK as the leader in the field of dispute resolution, are, metaphorically, rubbing their hands.

What can we do? We can and should retain a certain amount of confidence that the quality of what we provide, our incorruptible and independent judiciary, our world-class professional services, and our linguistic, geographical, and geo-political advantages, outstrip what our competitors can offer.

But to be complacent is foolish, given the scale of the change that exiting the EU will trigger. Last month Lord Neuberger suggested that ‘Brexit is operating as a spur to encourage all involved in the provision of legal services in London to strive to ensure that those services are even better than they already are.’ Of course competition acts as a spur, but competitors need, as they say, a level playing field. There is little reason think that the EU-27 will feel the need to provide one, absent mutual benefit.

So the times are uncertain and as everyone knows, uncertainty is bad for business. Is there anything the government can do now, to reduce it?

Our outgoing Lord Chief Justice characteristically took up the cudgels in his recent Mansion House speech and warned that ‘… the common good urgently requires clarification of a number of issues in relation to Brexit. First, on applicable law, certainty is needed. It can be secured through the incorporation of the provisions of Rome I and II into English law… Second, choice of jurisdiction clauses should be respected. There is the strongest case that this should be supported through the United Kingdom acceding as a contracting State to The Hague Convention on Choice of Court Agreements. Third, it is essential for the UK that we work with the EU to ensure that there is a simple and flexible regime for the mutual recognition of enforcement of judgments for the future.

‘Many months have elapsed since these points were made clear by the judiciary and the legal profession to Her Majesty’s Government. There is no reason for further delay.’

So, as the Bar has repeatedly advised the government, there are a number of things it can and should do, not for the sake of lawyers but for the sake of the country. If legal services are worth something to the country, following some legal advice may be a smart thing to do.

What about lawyers and our clients? Do we matter in all this? What would ‘No Deal’ mean? Brexit and the Legal Services Sector, a recent publication to which the Bar Council contributed, spelt it out. Here is a taster:

  • ‘Fly in, fly out’ advice will no longer possible in many EU member states, and we may no longer be able to advise EU-27 based clients on EU law, either in person or remotely.
  • UK firms’ ability to set up practices in EU-27 will be at the mercy of local laws overwhelmingly protectionist in nature.
  • We will no longer be entitled to appear before EU courts. Barristers will be harder to access by clients based in EU-27.
  • Advice to EU-27 clients will no longer attract privilege preventing the European Commission seizing legal advice during an investigation.

‘No Deal’ does not look too clever when it comes to the current pre-eminence of the UK’s legal services sector. The sector does not operate in a silo. For example it underpins our financial services sector, which in turn generates a very large proportion of GDP.

So what is the overview? The goose that lays the golden egg is our international reputation for the delivery of justice. It is not merely the judges, but also the lawyers who appear before them, who advise and represent clients at home and abroad, with exceptional skill and dedication, who have built up that reputation over time. As we all know a reputation painstakingly built can be swiftly lost. It is time for those who hold our reputation in their hands to concentrate on what is at stake and to take meaningful steps to reassure. Now.

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Andrew Langdon QC

Andrew was Chair of the Bar for 2017. He was Called to the Bar in 1986 and took Silk in 2006. He has sat as a Recorder since 2002, and became a Bencher of Middle Temple in 2014. From October 2013 until the end of 2015 he was Leader of the Western Circuit.