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How to talk about Brexit at the Bar

How NOT to make a hard Brexit of your pupillage interview

Find out what Brexit means to each area of legal practice (hint: it means more than just Brexit) from practising barristers in each field.
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 upcoming edition of TARGETjobs Law, we’ve been interviewing 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.

How might Brexit affect my chosen area of law? | What happened with the EU referendum? | A basic primer on the European Union

Please note: these predictions are exactly that, they are not certainties, and the situation may change from day to day as the negotiations progress.

How might Brexit affect my chosen area of law?

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. We’ll be updating this section periodically until the release of TARGETjobs Law 2018, so check back later for more links and information about other areas of practice.

The areas of law that appear to be most affected by Brexit include:

The areas of law that may feel little impact of Brexit are:

The grey areas that may be affected by changes in the market include:

What are the likely implications of Brexit for employment law?

‘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.

What are the likely implications of Brexit for company law?

‘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.

What are the likely implications of Brexit for energy law?

‘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 is minimised and, if investment is spent wisely, potentially increased.’

Adam Constable QC, barrister at Keating Chambers specialising in energy.

What are the likely implications of Brexit for family law?

‘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.

What are the likely implications of Brexit for intellectual property law?

‘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.

What are the likely implications of Brexit for chancery law?

‘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.

What are the likely implications of Brexit for construction law?

‘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.

What happened with the EU referendum?

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 before 2019. The likelihood that the topic will be brought up in pupillage interviews seems quite high.

A basic primer on the European Union

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’.