The Brexit Papers

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In a welter of longer treatises, the Bar’s Brexit Papers have been described as ‘gold dust’. Written in the public interest to inform and guide the negotiations ahead, Hugh Mercer QC highlights the value of the Bar’s topic-based and clear-sighted analyses

One of the difficulties in predicting the impact of Brexit on different fields is that the government’s strategic priorities have been expressed in fairly general terms. 


Perhaps this has necessarily been so. No doubt the Prime Minister is right when she says that making public our priorities will also make them more expensive to achieve, but a frank and public exchange with government as to how the public interest might best be served has proved to be difficult to achieve.

That being so, the chosen strategy for the Bar has been to ensure that government has access to focused analyses of the impact of Brexit on identified areas of the law, and recommendations as to the way forward in any Brexit negotiations.

Distilling the Bar’s real-world experience

The Brexit Papers are an articulation of how, in our view, the public interest would be well served. A first set of papers was published last year following a roundtable meeting hosted by the Bar Council for senior civil servants from across a range of government departments. Subsequently we expanded the legal fields covered and held a second roundtable for the Civil Service in March. Further such roundtable events are also contemplated for business groups and new papers will be added as issues are identified. There are now 15 separate papers, each identifying the salient legal issues, offering practical recommendations to our negotiators. They cover areas including family, crime and civil justice, as well as intellectual property, insolvency, tax, financial and legal services, among others.

All of them are written by senior, experienced members of the Bar from specialist Bar associations across crime, Chancery and family law, as well as many areas of commercial law.

It appears important that the government has access to the real-world experience of practitioners who can articulate, for example, the importance of clear allocation of jurisdiction in insolvency proceedings or the impact on international trade and dispute resolution in England and Wales if companies are unable to enforce judgments against an EU party’s assets abroad.

Our fashion and pharmaceutical industries thrive on our expertise in intellectual property law, which is so closely entwined with the EU acquis. The NHS saves millions because UK holiday makers in traffic accidents abroad can bring legal proceedings in the UK against EU insurers. Free movement and mutual recognition of qualifications means that citizens and businesses can hire UK lawyers to represent them in EU courts. The Brexit Papers make clear to legally trained and non-legally trained policy makers – and ultimately, to politicians – the ways in which EU law impacts nearly all areas of life.

Facilitating the transition and balancing objectives

Inevitably, the direction of travel set out in the government’s Brexit White Paper published in January remains controversial, but the profession may take some comfort that in it the government acknowledges the economic significance of the legal services sector to the UK, especially the way in which it underpins financial services and many other sectors, and the importance of maintaining the freest possible trade in services between the EU and the UK. The White Paper also acknowledged the importance of achieving agreement with the EU on mutual enforcement of judgments, which was the focus of one of the first of The Brexit Papers.

There is an emerging consensus that there are some areas where government should seek to create legal structures that preserve the status quo post-Brexit, to the extent that it is possible. These areas include issues such as cooperation in criminal investigations, jurisdictional rules for family disputes, and the mutual recognition of patents and trademarks.

There are other objectives, such as maintaining free trade, which are themselves desirable, but whose achievement are subject to other stated political priorities such as exiting the EEA and the interests of other member states. Whilst we may wish to maintain our strengths in financial services, for example, if we are outside of the EEA, other member states will not have an obligation or incentive to accommodate such ambitions.

In other areas of law, such as employment, there will be relatively few constraints, and the UK will be free to determine the protections it guarantees to employees and the obligations it places on employers.

One of the more contentious categories of policy is that where the government has announced that it actively wishes to depart from the status quo, such as on immigration, and where exiting the EU will enable it to do so. Our Brexit Paper on this topic recognises the considerable difficulties in balancing that objective with the need to have a workable solution which continues to permit service providers to service clients. We have therefore recommended consideration of an intermediate solution such as post-immigration registration as opposed to prior authorisation through visas.

Representing the Bar

Whilst we may not know fully what the government is thinking, the Brexit Working Group will continue to represent the profession by ensuring that policy-makers and legislators have access to the expertise and real-world experience the Bar has to offer. In doing so we hope to do two things: first to shape the process, contributing to an end result that serves the public interest; and second to show the wider world that the Bar is well equipped to deal with and to advise upon the complexities of Brexit.

Contributor Hugh Mercer QC, Essex Court Chambers and Chair of the Bar Council Brexit Working Group

IMPACT ANALYSIS

The Brexit Papers

Andrew Langdon QC, Chairman of the Bar: ‘The Bar Council did not take a position on the UK’s continued membership of the EU. Our objective is to facilitate a transition that minimises the risk of legal uncertainty and the loss of rights whilst pointing to how adverse consequences to the national economy may be mitigated and how we may capitalise on the opportunities.

‘This series of short, concise papers has been published to give legally trained and lay policy-makers, legislators and negotiators ready access to the expertise and real-world experience the Bar has to offer, and to make recommendations as to how the public interest can best be served. In a welter of longer treatises, they have been described as ‘gold dust’...

‘The range of expertise on which these papers are based is considerable. They are written by skilled, experienced practitioners from a wide range of practice areas, and I would like to thank them for giving so freely of their time. This work exemplifies what the Bar strives to do, in the public interest.’ (Extract from foreword.)

Paper 1: Legal Services

Paper 2: International Arbitration

Paper 3: Financial Services

Paper 4: Civil Jurisdiction and Judgments

Paper 5: Criminal Justice

Paper 6: Family Law

Paper 7: Immigration

Paper 8: Insolvency and Restructuring

Paper 9: Employment Law

Paper 10: Consumer Law

Paper 11: Traffic Accidents

Paper 12: Intellectual Property

Paper 13: Competition Law

Paper 14: Tax

Paper 15: Impact of ‘no deal’

The Justice Select Committee Brexit Report published in March reflects the issues raised by the Bar Council in The Brexit Papers and in evidence to the Committee. Backed by the Bar Council, its recommendations include continued cooperation on EU criminal justice and the mutual enforcement of judgments. The report also calls on the government to reduce the uncertainty for the legal services sector as negotiations get under way.

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Hugh Mercer QC

Hugh Mercer QC is Chair of the Brexit Working Group of the Bar of England and Wales and the European Lawyers Committee of the Council of Bars and Law Societies of Europe (CCBE). He is also the Leader of the European Circuit, which brings together advocates engaged in cross-border work.