Guest blog: Brexit and Beyond Brexit – Challenges for the Legal Profession

22 February 2018

 Hugh Mercer QC

'Hell hath no fury like a woman scorned' described the violent emotions at work in the seventeenth century tragic play,The Mourning Bride, and yet it seems strangely apposite for what is happening in some quarters of the legal profession in anticipation of the EU 27/UK divide.  Fortunately the majority would probably agree that raw emotion is a poor compass to guide our profession forward.  But what principles should guide our profession on the impact of Brexit on EU measures of judicial cooperation or practice rights? 

As is apparent from a glance at the CCBE Core Principles of the Legal Profession, the interests of the client must be at the forefront of our reflection.  Given that the Brexit referendum is widely interpreted as a protest vote against austerity, globalisation and all that goes with it, the demographic of the Brexit voter (and indeed the Alternativ für Deutschland, Podemos or Trump voter etc) should be borne in mind.  Research has shown that populism is thriving on a sense of alienation of parts of our population from a globalising world in which some feel that they have no stake and therefore nothing to lose if their protest brings tumbling down the house of cards of modern interlinked open societies.  

Jaap Bosman, a Dutch legal strategist, believes that such alienation is in part due to the ever-increasing and ever more automated power exerted by the state over us without a consequential increase in access to justice to resist or challenge the state.  In other words, there is a growing sense of injustice without any ability to challenge it - a Kafkaesque world in which you can be photographed on the motorway and fined for being a few km/h over the limit, with the ticket arriving at your home weeks later as you scratch your head as to whether it was you, your son, your wife or a friend who was driving at the time.  The resultant feeling of helplessness is encouraged by certain large corporations manipulating rules and regulations in their corporate interest, engaging in conduct which nets millions but for which there is apparently no visible sanction. 

In such circumstances, and where the legal profession already serves too small a proportion of those who need access to justice, are we going to be telling our grandchildren that we fought during Brexit to 'protéger notre biftek', or will we be able to tell them that we worked to maintain a maximum level of justice in an increasingly fractured world? 

It is not however necessary to appeal to the emotions on this issue: how can we pursue our clients' interests in relation to litigation, to legal professional privilege, to conflict of interest if we fail to take their interests into account when negotiating with our colleagues and informing the Commission of our views as to the appropriate approach to take to Brexit?

Indeed the very principles which would advance our clients' interests coincide with society's interest: to increase legal certainty, to uphold the rule of law and ultimately to protect democracy.  In contrast to the sloth of justice so brilliantly parodied for example in Charles Dickens'Bleak Housewith the never-ending litigation over wills inJarndyce v. Jarndyce, good lawyers revel in the swift and efficient disposal of cases where justice prevails over form.  

At a cross-border level it is a combination of the measures of judicial cooperation and cross-border practice rights of lawyers which have sought to streamline cross-border litigation and to render it more just and more likely that our common notion of legal certainty will be fulfilled: that our citizens, before committing themselves to any course of action, should be able to know in advance what are the legal principles which flow from it. 

Measures of judicial cooperation

As we move from the withdrawal phase onto trade talks, the threshold question is how to negotiate justice.  It cannot be the case for example that the tariff to be paid on the export of Welsh lamb to the EU is to depend on whether the UK will enforce EU judgments.  The Chairman of the Bar of England and Wales has written to both the UK Minister of Justice and to M. Barnier to ask that justice measures be placed on a separate negotiating track to trade issues. 

Indeed even Mrs May is on record in her only speech of the Brexit referendum campaign as recognising the great value of such reciprocal measures in her speech of 25 April 2016, in particular in the criminal field. 

Why should such measures lapse if the UK leaves the EU?  First of all, judicial cooperation is not an EU members only club as the Lugano Convention illustrates.  Second, the foundation in the 1957 Treaty of Rome is not free movement: 

"Member States shall … enter into negotiations with each other with a view to securing for the benefit of their nationals … the simplification of formalities governing the reciprocal recognition and enforcement of judgements of courts or tribunals and of arbitration awards." 

Thus was born the 1968 Brussels Convention as a measure of inter-governmental cooperation developing later via the third pillar of the Maastricht Treaty to the European Arrest Warrant, Europol and so on. 

Ultimately, as the Court of Justice has explained, all these measures are based on the concept of mutual trust.  Brexit or no Brexit, the UK legal system will continue to dispense justice, following the same slow and measured evolution which it has shown since the Middle Ages. On objective qualitative grounds and safeguarding of the rule of law for their citizens, agreement could be reached speedily on the continuation of these measures. 

Surprisingly contrary voices have included judges, in interventions which suggest both an unhealthy desire to reduce legal certainty and an undesirable alignment of the judiciary with the executive, a situation of which Montesquieu would scarcely have approved! 

More understandably Governments currently seem eager to engage in experiments whereby their courts compete with the English courts to provide dispute resolution in English and under English law.  Such moves are in principle a good thing.  Singapore has been an early mover with its International Commercial Court comprising a panel judges from France, Germany, UK, USA, Australia as well as Singapore.  This reflects developments in international arbitration in which panels of arbitrators navigate complex webs of contracts under different laws and give reasoned awards enforceable under the 1958 New York Convention. 

If the assessment which is leading to such developments in the EU 27 is that national judicial systems risk being considered too parochial and need to be internationalised, then such developments are no doubt part of an appropriate remedy.  But how is part of the remedy to isolate oneself from a large neighbouring jurisdiction byreducingjudicial cooperation with the UK? 

Practice Rights for lawyers

Though a sensitive issue in the Brexit debate as we know, practice rights for lawyers are closely linked to the above discussion of internationalising justice.  We are rightly proud of the fact that lawyers can move unhindered throughout the EU advising and representing clients in court and advancing the interests of justice.  Much can undoubtedly be done remotely, by email, video conference and so on.  But the ability of lawyers, when necessary in the client's interests, to fly in fly out, to form associations with local lawyers and to appear with local lawyers in court strongly underpins the rule of law agenda pursued by judicial cooperation. 

In the context of international arbitration for example,ad hocteams of lawyers come together to argue cases according to different laws.  This is not primarily law as business, but law as justice in which high quality lawyers from different systems combine together to deliver to the clients a combined level of expertise commensurate with the international nature of the problem. 

In such a context, toreducethe level of cooperation endangers the very justice which we spend our lives striving for.  An unfortunate part of the subtext for the new crop of international courts in the EU 27 is a desire to take business away from the UK profession.  So the argument is that in order to internationalise courts in order to react to globalisation, we will do so whilst excluding access for our profession to a ready-made resource of experts in presenting cases in English on English law such as the English Bar.  Fortunately, clients have other priorities - and one suspects that no client in his/her right mind is going to want to have their disputes resolved in a language and according to a particular system of law without access to the best expertise to safeguard their investment in the dispute. 

Hugh Mercer QC is Chair of the Brexit Working Group of the Bar of England and Wales, Chair of the CCBE EU Lawyers Committee and Leader of the European Circuit, an association of cross-border advocates in Europe -

This article was first published by German legal journal IWRZ and has been reproduced with their kind permission.