How Brexit became its own practice area

Lawyers can now capitalise on a word that didn’t even exist a few years ago

Just a few years ago, the term ‘Brexit’ — let alone ‘hard Brexit’, ‘soft Brexit’, and ‘red, white and blue Brexit’ — didn’t exist. Now, Brexit is a both household term and an entire field of study and research in its own right.

A field of practice, too. Some providers of legal services have begun putting together Brexit teams, made up of lawyers from a range of the firm’s specialisms, to prepare their clients for March 2019’s expected Brexit D-Day. Guy Lougher, head of Pinsent Mason’s cross-disciplinary Brexit team, tells us:

“Brexit is creating uncertainty and uncertainty, from the perspective of a lawyer, is something that creates the need for legal advice.”

It’s all about being prepared.

“What we’re about to experience is the most gigantic horse-trade between the UK and the EU, a bargain in which some businesses and sectors are going to win and some are going to lose,” Lougher says. “To make sure you’re a winner, you must engage with the government now to communicate your interests effectively. As we get closer to March 2019, it will be more difficult to influence government intentions and there will be less time to adjust to the terms of whatever deal is reached.”

With the interests of the legal services sector having been clearly put forward by the likes of the Bar Council and the Law Society, Lougher believes it’s down to this new breed of Brexit lawyer to make things clearer for their business clients.

This all began in the months before the June 2016 referendum vote, Lougher reminisces. Then, a Remain vote was anticipated. But Lougher believed it was prudent to plan ahead — he was right. The competition law specialist explains:

“The time spent in the run-up to the referendum was well worth it. On the morning of the Friday [that the referendum result was announced], we were able to circulate immediately some really well-planned client briefings.”

With Article 50 now triggered, Lougher and his team of Pinsent Masons EU specialists continue to work towards providing more certainty for their clients. To do so, they work with clients on scenario-planning exercises, looking at the range of possible outcomes with a hard, disorderly Brexit at one extreme and a smooth handover, inclusive of a transitional arrangement, on the other.

“The detail of these outcomes is potentially infinite,” Lougher concedes, which can make these exercises challenging. “But in terms of broad scenarios, there’s either a negotiation settlement or there isn’t, and those two options cover the main possibilities.”

With Brexit negotiations and government strategy in flux, University of York graduate Lougher can only advise clients on what may happen in the future. That’s why it’s so important to keep abreast of Brexit developments which give an indication of the negotiators’ direction of travel. Much of the job is reactive:

“A lot of what we do depends upon events. There is the European Union (Withdrawal) Bill currently before parliament; it’s difficult to know what the implications of that are going to be and what we as a law firm are going to respond to. We’re trying to stay ahead of events where we can, trying to advise clients using a range of different options of what the outcome of Brexit might be. But to a large extent, we’re responding to events and responding to developments.”

What Lougher is perhaps surer of is this: Brexit will have a big impact on the law.

Aside from speculation on the Court of Justice’s ongoing jurisdiction over UK cases, which Lougher says he’s monitoring, the access to EU legal services for UK lawyers is a big question mark.

“At the moment, we’re very used to flying around the EU practising in different countries,” he says. “But if the Brexit deal doesn’t provide for the mutual recognition of professional qualifications, then lawyers will need to think about providing legal services in a different way.”

Brexit’s impact on the law doesn’t begin and end at lawyers themselves; the substance of the law itself will no doubt be affected too. Before the referendum, when Lougher was getting his Brexit team together, he worked to identify the different practice areas that would be most affected by a vote to leave. Lougher gives general commercial, employment, tax, litigation, and financial services regulation as examples, before stating:

“It’s difficult to think of an area of law that wouldn’t be affected by Brexit.”