On 23 June 2016, the UK held a referendum on whether or not the country would remain in the European Union. The result to leave is widely thought to have huge implications for the people, the country and its laws.
For the latest edition of TARGETjobs Law, we interviewed barristers at different chambers and from different areas of practice to find out how they think Brexit (hard, soft or other) is likely to affect their particular specialism in the times to come. Below you’ll find different barristers’ observations and predictions on how each area of law may change with the process. At the very bottom of this page you’ll find a little bit of context on the significant developments related to the referendum and a primer on the basics of the European Union and how it operates. You can also click the highlighted links below to go straight to each section.
Please note: these predictions are exactly that, they are not certainties, and the situation may change from day to day as the negotiations progress.
Areas of practice that are strictly international or those that already use English law when resolving disputes, such as shipping and admiralty, are likely to be largely unaffected by Brexit. Others may see less impact from the repeal or ratification of EU laws, but may be influenced by the knock-on effects of social, economic or political uncertainty.
The areas of law that appear to be most affected by Brexit include:
- banking & finance
- EU & competition
- insurance & reinsurance
- intellectual property
The areas of law that may feel little impact of Brexit are:
- human rights
- personal injury & clinical negligence
- planning & environmental
- public & administrative
- shipping & admiralty
The grey areas that may be affected by changes in the market include:
‘I think arbitration will be less affected than most practice areas because there is very little EU legislation relating to arbitration. Indeed it’s possible that arbitration may become more popular post-Brexit if, for example, it becomes more difficult to enforce English judgments in EU member states or vice versa.’
Alexander Milner, barrister at Fountain Court Chambers.
‘Brexit is very likely to lead to significant banking-related issues and barristers specialising in this area will be called on extensively to advise in relation to the legal issues that it throws up and the disputes that arise as a result.’
Matthew Parker, barrister at 3 Verulam Buildings.
‘From a purely legal perspective, chancery practitioners are unlikely to see significant changes in the sort of work they do as a result of Brexit, since the role of EU law in chancery work has been relatively limited.’
Oliver Phillips, barrister at Maitland Chambers.
‘The government has indicated that it will freeze into UK law any EU legislation in force at the time of Brexit to ensure continuity, but may choose to make amendments in due course. Many commercial cases have a cross-border element so in time questions may arise around service of legal documents, jurisdiction and the enforcement of judgments across EU borders, currently permitted under EU law without special proceedings. The entire transition will be undoubtedly complex and take many years. That said, it is likely to provide interesting work for barristers, with London remaining a global centre for commercial disputes.’
Charlotte Davies, barrister at Littleton Chambers.
‘It remains to be seen how the UK’s exit from the EU will impact on this area of work. It is probably most likely to have ramifications in the restructuring and insolvency sphere, where, to date, there has been a general trend towards cooperation between different countries in recognising each other’s insolvency regimes. In the case of the EU, there has been a regulation in place since 2002 between the UK and the EU covering cross-border insolvency issues. A detailed review of the law will be needed once the politics have settled down; at this stage, it is unclear how exactly this area of work will really be affected.’
Rosanna Foskett, barrister at Maitland Chambers.
‘Disputes arising out of public procurement of construction projects in the UK (currently a thriving area) may be affected – depending on the extent to which the UK retains current rules – since this area is regulated by EU law. Currency fluctuations, changes in prices of materials and services and difficulties in access to labour may well generate more disputes, but, if there is a recession, this may lead to fewer projects overall. International work will not, of course, be affected.’
Lucy Garrett, construction barrister at Keating Chambers.
The government has appreciated the importance of criminal law in Brexit discussions and forming new partnerships, referencing in particular, ‘Cooperating with the fight against crime and terrorism’ (a government white paper, February 2017). It is doubtful, looking to the future, that the UK’s existing criminal law will undergo a dramatic alteration precisely because of cross-border cooperation and agreements to cooperate in the fight against crime and terrorism, which impacts us all. The UK will, it appears, on this topic, continue to work in partnership with the EU as opposed to suffering yet another divorce.
Stephen Page, barrister at Goldsmith Chambers.
‘A large amount of UK employment law comes from the EU, including regulations about family leave, working time, transfer of undertakings (TUPE), agency workers and discrimination rights. Many of these EU-derived rights are now so interwoven into our workplaces that it is difficult to imagine that they will be abandoned. While a wholesale rejection of these rights is unlikely, it remains to be seen over time whether, without the stipulation of the EU, the government converts and retains protection for the rights of workers or diverges from EU employment law to make the regulations more business friendly.’
Caroline Musgrave, employment barrister at Cloisters.
‘Negotiations for leaving the EU are underway. Although it is not possible to know precisely the shape of the deal that will be struck, if the benefit of free movement is lost, the UK energy sector may see the price of goods and raw materials increase, while energy producers may find it more difficult to attract or retain workers. The UK may become a less attractive investment prospect, with a detrimental effect on innovative energy solutions and technology development. The EU provides targets for reducing emissions: it is possible that the UK will abandon those targets, although then it would be open to the UK to adopt more ambitious targets for green energy. That said, so much of our work is more widely international; this will mean the direct impact of Brexit is minimised and, if investment is spent wisely, work may potentially increase.’
Adam Constable QC, barrister at Keating Chambers specialising in energy.
‘Regardless of Brexit, there has to be law prohibiting cartels and monopoly power. There is an issue about the extent to which international cartel damage and mitigation will continue to come to London because it might be less attractive as a forum. However, if we’re no longer covered by EU decisions, the UK regulators will have to increase the number of merger and antitrust decisions they take. For EU law more widely, the impact of Brexit is hard to predict as it depends on how closely we are integrated with the EU in the long term, as well as on the nature of any transitional arrangements. One thing to consider is that, even if the UK diverges significantly from the EU, post-1972 laws will not just be washed away. For example, we now have a competitive telecommunications market that didn’t exist pre-1972: mobile phones, broadband, high-speed data lines and the like will still need regulating after Brexit. Current practitioners in areas governed by EU law will continue to practise in those areas even if it is not called EU law anymore.’
Philip Woolfe, barrister at Monckton Chambers.
‘As a member state of the EU, the UK is currently party to the various EU treaties that determine where individuals can get divorced, where individuals’ maintenance claims are resolved, how English orders can be enforced abroad and how foreign orders can be enforced in England. When the UK exits the EU, all of these areas/issues will be ‘up for grabs’ again and will need to be renegotiated.’
Amy Kisser, family law barrister at QEB.
TARGETjobs Law solicitors' contributors had a different take on family law and lawyers with a domestic client base with no international complications may see less of an impact from Brexit. You can see TARGETjobs Law solicitors’ content by following this link to our article on How you can talk about Brexit in a training contract interview.
‘It is an inevitable part of a functioning democracy that people are able to challenge executive power in the courts. As long as the Human Rights Act remains in force, there will be a certain level of human rights litigation in the UK. Most human rights cases do not directly involve European law. Human rights may therefore be less affected by Brexit than areas such as competition law, although it will doubtless have some impact.’
Edward Craven, barrister at Matrix Chambers.
‘This area of law weathered the recession well and will still be highly relevant post-Brexit. Freedom of information should be almost entirely unaffected by Brexit: the Freedom of Information Act has no EU links and, although the government sometimes complains about the Act, there does not appear to be any serious attempt to repeal it (perhaps because of its popularity with the media). There are some EU information rights, such as those in the Environmental Information Regulations, but these are unlikely to be impacted. Although data protection law is EU law, the UK government was always likely to seek to retain it, and has done, for the simple reasons that the EU will require any business providing services in the EU to comply with the General Data Protection Regulation (GDPR) and will not allow EU citizens’ data to be passed outside the EU unless the recipient country has similar protection levels.’
Rupert Paines, barrister at 11KBW specialising in information law.
‘Presently, these questions, when considering property situated in the EU, are governed by the EC Insolvency Regulation. What impact Brexit will have on the application of these principles is unknown. It may be that a similar arrangement continues between the UK and the EU; perhaps more likely, the Insolvency Regulation will be scrapped and replaced with something new that might be negotiated on an EU-wide basis or may be more bespoke to specific member states. In any event, questions of enforcement and recognition of English insolvency orders throughout the EU may well become more complex in a post-Brexit world – something very much bucking the trend as national borders otherwise have diminished in the modern insolvency environment.’
Donald Lilly, barrister at 4 Stone Buildings.
‘Brexit has the capacity to cause some damage to the UK’s insurance market, depending on what kind of deal is achieved with the EU. The financial services passports regime affects insurers, and there are common EU rules for capital to be held by insurers. However, the industry remains very strong and prospects remain good for able lawyers working in this field.’
Jonathan Hough QC, barrister at 4 Paper Buildings.
‘A lot of IP law is harmonised by EU law, so you need to keep on top of European judgments as well as English decisions. There are likely to be substantial changes and developments over the coming years as a result of the UK’s decision to leave the EU. Clients with EU trade marks and EU designs are bound to be particularly affected, but it is likely that there will be considerable changes in most areas of IP. It is therefore going to be busy/interesting/challenging, depending on your point of view!’
Guy Hollingworth, barrister at One Essex Court specialising in intellectual property.
‘Brexit has created a lot of uncertainty across most, if not all, practice areas at the Bar. We do not yet know what the status of EU-derived law will be following the expiry of Article 50. It currently appears that the number of EU-born doctors and nurses registering to work in the NHS is decreasing. This may place additional pressure on a system that is currently struggling. If there is a downturn in the economy, this may have a negative impact on how complex settlements are structured or make it more difficult for injured people to re-enter the job market.’
Tamar Burton, barrister at Cloisters Chambers.
‘Planning is likely to be unaffected by Brexit. However, for environmental law, there are various directives, such as the habitat directive, which states that you cannot grant planning permission if it will hugely affect protected wildlife, which some people see as holding up development. The government may try to change or amend these regulations to ‘water down’ such requirements.’
Andrew Parkinson, barrister at Landmark Chambers.
‘Property law is primarily a matter of domestic law so there are unlikely to be any significant changes arising directly from Brexit. Any changes are more likely to arise from reforms our Parliament may introduce in the event that regulations and laws made pursuant to EU directives are repealed. However, Brexit is likely to impact the property market, which in turn will affect property barristers. Property law is relatively resilient from market shocks. When a shock occurs, practitioners may see a change in the type of work they are being instructed to carry out rather than a decrease in work.’
Katrina Hanstock, barrister at Hardwicke.
‘There is obviously a considerable amount of uncertainty with regard to the legal implications of Brexit. However, whatever the outcome of the negotiations, there is likely to be complex public and constitutional law work for lawyers.’
Samantha Leek QC, barrister at 5 Essex Court.
‘No one knows exactly what impact Brexit will have on shipping law. I think there is no good reason for Brexit to make a significant difference if a sensible exit deal can be arranged. Leaving the EU might even allow English law to become more flexible and attractive (eg by extending antisuit injunctions). However, the risk is that prolonged uncertainty, or a mistaken perception that the UK has stopped being a welcoming jurisdiction for international parties, might put off some international clients: such clients choose to come to the UK at present, and they could choose to go elsewhere.’
James Hatt, barrister at 4 Pump Court.
‘There is a lot of pure tax law in this area, which takes time to learn. Knowledge of this, and an ability to use that knowledge to find solutions, is one of the things that makes a tax barrister effective. This is also why it is not really possible for non-tax barristers to ‘dabble’ in the area, which in turn means tax barristers are always in demand, even during recessions. Leaving the EU will not change that.’
Laurent Sykes QC, barrister specialising in tax at Gray’s Inn Tax Chambers.
On 23 June 2016, the UK held a referendum on whether or not the country would remain in the European Union. The result was a small majority in favour of leave. It is widely thought that the move will have huge implications for the country, its people and its laws.
While the vote was advisory, the government chose to treat the result as if it were legally binding and attempted to use government prerogative to enact the outcome of the referendum and trigger Article 50 of the Lisbon treaty without consulting Parliament. This led to a host of litigation against the government on constitutional grounds, the most famous of which was brought by civilian Gina Miller.
The private lawsuit brought by Miller (R (Miller) v. Secretary of State for Exiting the European Union) six months after the referendum meant that the Supreme Court heard one of the most significant constitutional law cases in the nation’s history. The court ruled that the act of leaving the European Union could not be triggered without parliamentary approval, which led to Parliament passing a bill that would potentially allow it to repeal or change rights laid out in the European Communities Act 1972.
In June 2017, to capitalise on a perceived overwhelming majority in Parliament and make it easier to pass Brexit-related legislation or change existing constitutional rights, the Conservative government called an early election. The party failed to achieve the majority required to form a government on its own, due to what some leading Conservative MPs said was a ‘badly organised’ campaign with policies that punished their core voters. The party was forced to sign a deal with Northern Ireland’s DUP MPs, potentially weakening future legislative, policy and negotiating plans related to the EU.
Rarely does such a divisive political, social and legal situation occur in the UK, and it’s unlikely another will occur in the near future. The likelihood that the topic will be brought up in pupillage interviews seems quite high.
There are a number of different bodies with different roles within the EU:
- The European Council – the heads of government for each country (or their equivalent); they lay out the political direction and aims of the union
- The European Commission – essentially the civil service for the union
- The European Parliament – elected member state representatives that vote on whether to accept legislative proposals (the House of Commons of the EU)
- The European Court of Justice (not the same as the European Court of Human Rights) – composed of one judge from each member state
Key facts that affect or may be affected by future decisions:
- The EU has four fundamental freedoms that are exclusively packaged together to form the single market. They are the free movement of: people, goods, services and capital (money).
- There are an estimated 3.3 million European citizens living in the UK and an estimated 1.2 million UK citizens living in the EU (according to Migration Watch UK).
- The EU is made up of 28 member states (that includes the UK until 2019) and aims to keep policies and legislation as consistent as possible within its single market to ensure the four freedoms.
- The 27 remaining member states will act as one in any Brexit negotiations.
- The European Union can pass two types of law that affect its members. Regulations, which affect the single market once made, and directives, which need to be brought into law by each country in their own system.
- The European Court of Justice (ECJ) does not serve as a higher court than those of England and Wales, but is there to interpret points of European law at the request of the national courts as a form of dispute resolution. Failure to comply with an ECJ ruling may result in a fine.
- A key point of the Conservatives’ negotiations has suggested that they seek to avoid a referral to the ECJ to interpret points of law. The national courts would take over this role.
- The European Court of Human Rights (ECHR) in Strasbourg serves only to interpret the European Convention on Human Rights. Rulings are not binding, and are made for judges in national courts to take into consideration.
For more information and to hear voices from other parts of the legal profession, check out TARGETjobs Law solicitors' guide to ‘How you can talk about Brexit in a training contract interview’.