It is a common error to assume that a person or organisation which takes poor decisions has been badly advised. A clear theme that runs through the articles in our Brexit special focus is that, at every turn, government and opposition have had access to wise counsel from the legal community, but have often chosen a different path.
The government’s tin ear is evident in the proposed withdrawal agreement. As Law Society vice-president Simon Davis and the Bar Council’s Hugh Mercer QC note, it is not the case that the legal sector is well-served by even the current best-case scenario. The proposed withdrawal deal is ‘light’ on trade in services, for which the UK has a £28bn surplus with the EU27 – instead prioritising goods, for which the UK runs a £95bn deficit.
EU market access for our legal services is but one area where little progress has been made. On choice of jurisdiction and mutual recognition of judgments, the government has at least heeded some advice. It has taken steps to join the Hague choice of court conventions and is seeking accession to the Lugano Convention.
But mutual recognition of legal professionals remains a concern within and beyond the EU. Most free trade agreements (FTAs) do not currently provide for a ‘deep and sophisticated market in law’, and any FTA based on that signed with Canada would be of no help.
For disputes with an international dimension, the practical response for parties that want to use the world-beating legal expertise available here will likely be a greater reliance on arbitrations. In which case, how is the common law, a source of UK ‘soft power’ in the world, supposed to develop?
This mess is in direct contrast to the comparatively discreet path Wales is treading as its laws and taxes diverge from England. In today’s Gazette, Andrew Felton, secretary to the Commission on Justice in Wales, and Welsh Revenue Authority chief legal officer Sean Bradley relate their roles in a considered devolution which is advancing through consultation, advice and reflection.
What they have to report is groundbreaking but – paradoxically – little reported in the mainstream media. We are pleased to oblige.