The prospect of a ‘no deal’ for the law after Brexit – whether for practice rights or civil justice cooperation – is growing, the chairman of the Bar has warned.
Andrew Walker QC recommended that barristers practising EU law should look to requalify in Ireland to protect themselves.
Writing in the Bar Council’s magazine, he said that “once we have some clarity about the future deal” at a national level, the Bar Council would have to decide what further negotiations of its 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,” he said.
Mr Walker advised that, for those with an EU law practice, “significant change looks inevitable” as a result of Brexit.
“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.”
Without an effective deal on rights to practise and to advise clients in Europe – whether as lawyers, experts or arbitrators – Mr Walker explained that the extent to which barristers would 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.”
Civil justice co-operation – particularly the recognition and enforcement of judgments in commercial, civil and family cases – mattered “because even the best alternative international treaties are trailing some way behind the arrangements within the EU”.
Mr Walker said: “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.”
More broadly, he predicted that “only a minority” were likely to be happy with the final outcome of the government’s Brexit negotiations, 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.”
By contrast, said Mr Walker, the UK seemed to be 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”.
He said that did not sit well with the continental approach: “one reason, perhaps, for our unsettled relationship with Europe”.
He added: “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.”