It is apparent to the legal professions perhaps more than most, that the process of exiting the EU is not only highly political but fraught with legal complications which are yet to be fully unravelled.
Barristers as specialist experts in their fields are well-placed to identify the key issues arising across their vast array of practice areas. This is why the Bar Council established its Brexit Working Group; to focus their attention on identifying these issues, their implications for the Bar, the justice system and the wider public, and thereby to highlight the skills which barristers can bring to bear on the complexities of Brexit. The Brexit Working Group has also been looking at the issue of building links with other EU bars to maintain as far as possible the rights to practise and represent parties in EU courts, especially the CJEU.
Distilling the Bar’s real-world experience
The Brexit Papers are a compilation of the Bar’s analysis of the implications of Brexit on a variety of issues. They are an articulation of how, in our view, the public interest would be best served. Each paper highlights the salient issues arising from Brexit and offers practical recommendations to our negotiators.
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. In particular, the need for enforceability of judgments between the UK and EU, as well as access to the market for legal services was emphasised along with analyses of the implications of Brexit in family, crime, intellectual property, insolvency, tax and competition law. Subsequently we expanded the legal fields covered and held a second roundtable for the civil service in March where these topics were explored in more detail along with those of employment, financial services, immigration, consumer law and traffic accidents. Further such roundtable events are also contemplated for business groups and new papers will be added as issues are identified.
There are now over 20 separate papers, each of which highlight the significance of these areas to legally trained and lay policy makers, legislators and negotiators. The Brexit Papers have been widely distributed and extremely well-received, and requests made for further papers on several new topics. 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. The authors are leaders in their fields who have voluntarily donated their time and expertise to this project.
The excellent reception The Brexit Papers have received highlights the importance of the Government having access to the real-world experience of practitioners – barristers 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.
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.
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 currently serves UK citizens, businesses and public bodies.
Feeding in to legislators and negotiators
Another work stream for the Brexit Working Group has been the submission of oral and written evidence to parliamentary inquiries. The Working Group proactively monitors inquiries issued by Parliament and commissions leading practitioners to put together written responses on the Bar’s behalf or attend evidence sessions to discuss with Parliament further. Evidence has been provided on issues such as civil justice cooperation, justice and security, and future trade between the UK and the EU. Earlier this year the House of Commons Foreign Affairs Select Committee also requested evidence from the Bar Council on the implications of a “no deal” for the UK. An excellent and comprehensive response was penned by Professor Derrick Wyatt QC and Hugo Leith, and was included in The Brexit Papers: Second Edition.
The Brexit Working Group monitors the engagement of the Bar in the negotiations, looking for and promoting opportunities for increased participation. The Bar Council is now involved in several Government stakeholder engagement groups at various levels, ensuring the interests of the Bar are represented in discussions with the legal sector, as well as the wider business and professional services sectors.
The Great Repeal Bill and preserving democracy
The Great Repeal Bill White Paper sets out the Government’s planned approach to the Bill, intending to repeal the European Communities Act 1972, convert the acqui into UK law, and create powers to make secondary legislation. There has never been a legislative exercise anything like that which is now required in terms of volume, complexity and scope. There will be a need to be able to react to developments in the course of negotiations. There is also a need, however, for more clarity over what lies within the scope of delegated legislation and for the imposition of safeguards to enable Parliament to scrutinise where necessary. We have expressed to both Parliament and Government the difficulties with using secondary legalisation to enact policy changes.
One of the most important questions for the Bill to address will be the scope and terms of the intended power to alter the content of “repatriated” EU law. But the question is wider than that, because the White Paper also foreshadows the possibility of amendments to other legislation as a consequence of the UK’s withdrawal. The Bar Council pointed out to the House of Lords Select Committee on the Constitution the detailed legislative process with extensive public and Member State involvement that EU instruments undergo when formed at EU level. Simply relying on “ordinary” parliamentary scrutiny mechanisms for statutory instruments would therefore be a loss of democracy. This observation by the Bar Council was expressly referred to in the Select Committee’s report and, it is hoped, will be taken to heart by Government. As the practicalities of this are yet to be clarified, the Bar Council has offered its thoughts on this crucial issue in a written response to the White Paper.
The question of CJEU jurisprudence
The applicability of case law of the CJEU to domestic judgments is an area of particular interest. The implication has been that CJEU jurisprudence should fall away entirely. In practice, however, this would not be a normal operation of a judicial system in an international law context. “Due account” of case law from other states applying the same international instruments is a concept applied universally. The reality is that the relationship between CJEU jurisprudence and the domestic courts’ future application of domesticated EU law is a complex and nuanced one, and at present the White Paper only scratches the surface of the issue. The Bar Council is in the course of preparing a Brexit Paper on the CJEU dimension of Brexit, which we hope will provide a further opportunity to contribute to the Government’s thinking on the matters that the Bill will need to address.
What next for the UK?
The Brexit Working Group will continue to represent the best interests of the Bar 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 demonstrate to the wider world that the Bar is well equipped to advise upon the complexities of Brexit and to shape the negotiation process, contributing to an end result which will better serve the public interest. *
Hugh Mercer QC etc.
 The House of Lords Select Committee on the Constitution 9 th report of session 2016-17 The ‘Great Repeal Bill’ and delegated powers, HL Paper 123, 7 March 2017