Andrew Walker, QC is Chair of the Bar of England and Wales for 2018. He was an elected member...
Jon Amarilio is a partner at Taft Stettinius & Hollister in Chicago. He represents individuals, small businesses, state and...
What’s all the brouhaha about Brexit? In this episode, host Jonathan Amarilio and Andrew Walker, Queen’s Counsel and the 2018 Chair of the Bar of England and Wales, break it down for us with a rousing discussion about practice of law across the pond, how the legal community is impacted by Brexit and much more.
Special thanks to One Legal for sponsoring this episode.
The Brexit Brouhaha Edition
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Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and youngish lawyers talk legal news, topics, stories, and whatever else strikes our fancy.
I am your host Jon Amarilio of Taft Stettinius & Hollister, and I am joined today by Andrew Walker, QC. Andrew is the Chair of the Bar of England and Wales in 2018. He studied Law at Trinity College, Cambridge and was called to the Bar by Lincoln’s Inn in 1991. I really wish we had that phrase here. It’s very elegant.
Andrew Walker: It seems you are the only guys who described me as youngish but —
Jon Amarilio: Call to the Bar though, it just sounds so nice. He became a Queen’s Counsel QC also known as Silk in 2011, I know that because I am a big fan of BBC crime and legal dramas and was elected as a Master of the Bench of Lincoln’s Inn in 2016. In 2019, he will return to practice, which is something we will hopefully be able to talk about today. He will return to practice as a Barrister in Maitland Chambers, London. He practices rather as a litigator and advisor focusing on property company and commercial disputes, fraud and non-clinical professional negligence claims. He was awarded the Pro Bono Award in 2009 and he is also a trustee of the Industry and Parliament Trust, a charity which seeks to develop mutual understanding between the British Parliament and the worlds of business and commerce.
Andrew, welcome to @theBar.
Andrew Walker: Thank you, Jon, I am very glad to be here.
Jon Amarilio: Thank you for coming. So, you are the Chair of the Bar Council of England and Wales. For those of our listeners who are unfamiliar with that organization, can you describe it? What’s its membership look like? What’s its purpose?
Andrew Walker: Its purpose is to be the representative organization for barristers in England and Wales, perhaps just ought to explain there are two types or two main types of lawyer in England and Wales, there are barristers and it’s about 16,000 practicing barristers. About 50,000 people you have gone through the practice at the training but aren’t now practicing as barristers. So the 16,000 of us, there’s a whole host of solicitors as well as about a 150 odd thousand of them, and they have a separate organization in the Law Society.
So, with a representative organization very similar in a lot of what we do to the Chicago Bar Association for attorneys in Chicago but we have the added element that we regulate our barristers as well. We do that through and independently operating body within the Bar Council but it’s still technically speaking done by the Bar Council.
Jon Amarilio: So when you say “regulate” you mean in terms of disciplinary procedures, in terms of codes of conduct that kind of thing?
Andrew Walker: Yes, but wider. So they stay right our code of conduct but they tell us what other obligations we need to comply with. They will give us guidance on how to comply with those and they will exercise disciplinary functions. So they will investigate complaints, they will decide what action to take and they have an arrangement with the Inns of Court, which is the other side of the barristers’ profession in England and Wales to run disciplinary panels.
Jon Amarilio: And how’s your Bar you’re going so far?
Andrew Walker: It’s been absolutely fascinating, it’s been — it’s been — it’s always eventful, it’s been a little more eventful than I anticipated. We had a strike by our criminal barristers a couple of months ago; it went on for about three months.
Jon Amarilio: What was behind that?
Andrew Walker: Fees as ever, well, criminal defense fees are paid as part of our legal aid system and the system was changed at the beginning of April and the Bar wasn’t very happy with the change, although I think fundamentally that is not very happy with the levels of remuneration where they are now, haven’t been happy with them for years. We had 20 years of reducing remuneration in various stages either just gently or big cuts any one time, it’s not being going up for years.
Jon Amarilio: It’s promising here as well —
Andrew Walker: Yeah and a whole host of other challenges in the criminal court. So, I think they just decided they had enough. So, we had a little bit of strike for a while.
Jon Amarilio: So, what happens when the criminal defense attorneys strike, does everything just grind to a halt?
Andrew Walker: Well, yeah, it depends on what you mean by strike because we are all sole practitioners and competition law —
Jon Amarilio: Which is something I also want to get into, it’s fascinating —
Andrew Walker: Yeah, so we can’t have collective action as you would with a union. So, it was a lot of people just simply deciding that they wouldn’t take certain types of case and they decided that — but this new fee scheme, they wouldn’t take cases under the new fee scheme and that’s the sort of thing that comes in gradually because it’s criminal lawyers will know, you have a lot of small hearings at the beginning of a case, the trial comes some way down the line and we never got to the point of people by and large refusing to do trials, but that’s where it would have ended up.
Jon Amarilio: So did situation resolved or is it —
Andrew Walker: I would say we’ve had it come up with another truth with the government. They agreed to put another 15 million pounds into the scheme, which is about 6.5%, which is not a bad outcome and we agreed to go back to work. But on the basis that everyone’s accepted that this is not the end of the dispute should we say.
Jon Amarilio: Or there never is when it comes to funding for that kind of thing.
Andrew Walker: Absolutely.
Jon Amarilio: Yeah, so one of the things that you mentioned a minute ago was the difference between barristers and solicitors. For those of our listeners who don’t watch as much BBC on Netflix as I do, can you get into that a little bit, what’s the difference?
Andrew Walker: Well, I’d encourage them to watch BBC on Netflix.
Jon Amarilio: Yeah, I mean, it’s great.
Andrew Walker: The difference is probably best described as your difference between your attorneys with a general practice and trial on appellate attorneys, barristers focus on advocacy and on sort of related advisory work. So, we will do the litigation strategy advice, that sort of thing.
Sometimes we will do some specialist advice as well, so some of my practices property law so I might advise on aspects of a development, how do you deal with certain problems in it. But the main foot difference is that we do the advocacy in all the higher courts, solicitors can do advocacy in the lower courts, but they are really the guys who do all the transactional work and all of the day-to-day running of the litigation.
Jon Amarilio: So, is it divided up purely by role within the advocacy system or also by areas of practice?
Andrew Walker: Just by role.
Jon Amarilio: Okay.
Andrew Walker: Solicitors can practice advocacy but they need to get an extra higher court right, so they need to do extra training, and the truth of the matter is although there are some very good solicitor advocates, they are not doing the advocacy day in day out that we are doing. So, it’s a functional separation, it’s not a practice area separation.
Jon Amarilio: Okay, and you said that all barristers were essentially solo practitioners, how does that work? Maybe get into the in system a little bit, I suppose.
Andrew Walker: Well, you can be an employed barrister, so you could be an employed advocate in the same way as a solicitor would be.
Jon Amarilio: So you can work for a large law firm.
Andrew Walker: So you can work for a large law firm and still be a practicing barrister but most of us says about coming on for 5/6 of us, say it’s sort of 12,500 out of 15, 16. In private practice we are organized mostly into sets of chambers which are just groups of practitioners who have come together, they all remain sole practitioners, they are not partners, you are running your own practice, but we pool all our administration. So, all of our IT, HR, we would have the same staff, we will hire a building together, but we all remain sole practitioners.
Jon Amarilio: Interesting, so it’s a loose confederation.
Andrew Walker: Yeah.
Jon Amarilio: Okay.
Andrew Walker: Yeah, I mean, you see it occasionally, the solicitors can do the same and you might say it’s a little bit like the JEP here in Chicago, I mean, you are getting a whole load of individuals in doing their own thing separately but using pooled resources in a single building, single IT system, and you simply set up barriers, so that all of your confidentiality and conflicts are avoided in that way.
Jon Amarilio: Do you see that trending in a different direction now that law firms are getting bigger and more international, London’s becoming one of the great legal hubs, well, it has been for a while, but even more so now one of the great legal hubs of the world, you have so many law firms, mega law firms there, are more barristers going toward that or is it still a pretty isolated phenomenon?
Andrew Walker: There are some law firms that decided to take some advocates in-house with Herbert Smith Freehills, which is a sort of UK and Australian firm, for a long time had a very small group of advocates including some QCs but they’re the only firm that’s really gone into that in a major way. Most of the firms have seen that there’s a real value in having a separate pool of experts, you can go to and you can pick your expert for the case, you don’t have to pick one of your in-house guys, you’ve got a choice of 16,000 people and you can pick any one out of that that you want to and so if certainly when we talk to the government about what might — the position might be after Brexit which will come on to on a little bit later on, all the city law firm to say, no, we like this arrangement. This is a great strength that we can pick the advocate for the job.
Jon Amarilio: Yeah, exact person for the case and you don’t have to worry about them when they are not on their case, you are not paying their overhead.
Andrew Walker: Exactly there. They were not paying their own overhead, you are bringing them in as a consultant effectively.
Jon Amarilio: Does that create a more competitive environment do you think, everyone —
Andrew Walker: Yeah, absolutely. Well, it creates a very competitive environment between the advocates, barristers, even we are competing against other people in our own chambers.
Jon Amarilio: Right.
Andrew Walker: And it’s highly competitive and the person I want to lose to least is my colleague in Chambers, you want to know really well, I am going to have to meet him over a cup of tea or a beer later.
Jon Amarilio: And hear about it.
Andrew Walker: And hear about it.
Jon Amarilio: Yeah.
Andrew Walker: He’s a wonderful triumph when he beats me even worse if he’s more junior to me; of course, for me that never happens, but for some it does.
Jon Amarilio: Yeah, right, for lesser lawyers.
Andrew Walker: Yeah, obviously, obviously. So, from an advocacy point of view it’s highly competitive.
Jon Amarilio: So, how does that system work with the end system? You are a member of Lincoln’s Inn, which is one of — as I understand it the four ends, how does the chamber system fit into that?
Andrew Walker: It’s separate, all of the Inns own buildings in London and there are a lot of sets of chambers in buildings owned by the Inns..
But the Inns are, I suppose, they are traditional legal bodies for barristers. You all have to be a member of an Inn. The Inn is responsible for looking after your training and for looking after you when you were a very junior practitioner. But they don’t get involved in the commercial side of things. Really there is an educational body, a bit like a college. I mean, it’s a — they are there to help bring people together, create a bit of more of a collegiate atmosphere, but all of the professional side is done separately. So, my set of chambers doesn’t have anything to do with my Inn, doesn’t have to be in my Inn, it could be anywhere, there are chambers all the way around the country, in the 10:40 London.
Jon Amarilio: And when you say they do the training, that’s the training of people who are already barristers or are they involved in the law school aspect of things?
Andrew Walker: Well, I am somewhere in between. We have a dedicated training course for barristers at the moment. We were going through some changes shortly, but at the moment it is a one-year course and that’s running educational institutions around the country. But there are elements of sort of side training that are done by the Inns, that are a little bit broader than the practical skills training you’re getting on that course.
Jon Amarilio: Sure.
Andrew Walker: And so, yeah, there’d be sort of lectures, the pupils can have lunch or dine together with senior practitioners and learn a bit more about the profession, build up some networks, and then they are responsible for some initial training during the first three years once you’re fully qualified with 11:30 something call to the Bar and are practicing. Those are sort of basic requirements you have to do for some advocacy training, some ethics training, and the Inns organize all of that.
Jon Amarilio: So, the senior practitioners, the younger practitioners have a chance to associate with their — what’s their incentive for taking on those younger pupils? Is it a tradition, is it a sense of obligation and the profession? Are they developing their own networks through that?
Andrew Walker: It’s the first shot. I think you’re really developing your own networks. It may be very occasionally, but no, really it’s a tradition and it’s an attitude of service to the profession. It’s the way we’ve always done it. We see the benefit to our profession in doing all of that.
We know that as a profession we are stronger if we’re supporting all of the members of that profession. A set of chambers would typically have a structure from the most junior people to the most senior and the senior people see the interest in looking after the more junior ones, helping them with their difficulties, encouraging them to develop their practices, and because we are a profession, where unless you’re employed you’re by and large a sole practitioner.
We are 12,500 sole practitioners, how do you generate a feeling of ethos and collegiality and support. If you’re not willing to put yourself out and do that for your profession.
Jon Amarilio: That’s fantastic.
Andrew Walker: And we do it free, I mean, we generate tens of thousands of hours a year, given effectively by those senior practitioners for free and it makes us a much better profession as a result.
Jon Amarilio: I don’t doubt, and you’ve been doing it for so long. I’ve did a little bit of research before the interview and I saw Lincoln’s Inn has been around since the reign of Henry V, right? 1400s?
Andrew Walker: That’s the earliest document, I mean, we think it might be older but —
Jon Amarilio: Oh, is that right? No one’s quite competing with the inner and outer temples. They go back to Thirteenth Century, right?
Andrew Walker: Yeah, these origins are all lost in the mists of time now.
Jon Amarilio: I’m going off Wikipedia here, so.
Andrew Walker: Yeah, well, Wikipedia doesn’t do mists of time.
Jon Amarilio: Yeah.
Andrew Walker: 13:30 like a little bit sort of more hardcore.
Jon Amarilio: So Henry V, Battle of the Agincourt and all that, there’s some vintage there?
Andrew Walker: Oh yeah, and of course things have changed a little bit since the 13th century and 14th Century. That history is part of the strength in a sense that when you become a member of the profession, you’re becoming part of that history and that is a real strength, that history means there is commitment to the rule of law, commitment to the public interest, and you’re automatically buying into that, and you are becoming part of that, and if you are looking at the ethics of junior lawyers or the way junior lawyers see the world, I think having that background as part of what has become the essence of what you are becoming when you become a barrister is a real strength.
Jon Amarilio: Is in a sense of grounding and expectation.
Andrew Walker: Yeah, and sort of reinforces that peer pressure to do the right thing and to want to do the right thing. So that you’re not subject to what you might otherwise give in to, some of the temptations, some of the unethical practices you see in some other areas.
Jon Amarilio: Sure, and I think you said earlier, how many barristers are there in London?
Andrew Walker: It’s about 16,000 across England and Wales.
Jon Amarilio: So a very small community, really, when you consider the size of London. I think in Chicago we have 30,000-plus lawyers.
Andrew Walker: You have more lawyers in the State.
Jon Amarilio: We’re a highly legalistic society. Yeah, but we got all those traditions from you guys.
Andrew Walker: Yeah
Jon Amarilio: But because there are far more solicitors, so if you look at the number of solicitors in London they would be far more than barristers.
Jon Amarilio: Sure.
Andrew Walker: And that’s because the way we’ve split the two professions out.
Jon Amarilio: Okay. I think that’s probably a great place for us to take a break. We will be right back.
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Jon Amarilio: And we’re back. Andrew, the big story over in the UK, it’s no secret for exit. For those just to remind our audience this was the 15:59 of a 2017 popular referendum where UK voters decide to leave the European Union. I think, if I remember correctly my history, the UK has been in the European Union since the early 70s, right?
Andrew Walker: Yeah.
Jon Amarilio: And there is currently a departure date of March 29, 2019. There’s caused a great deal of turmoil in the UK as one would expect. It forced the resignation of the last Prime Minister, David Cameron. There’s a renewed talk if I remember my economists correctly of Scotland leaving the UK. It brought in the administration of Theresa May. There have been some very highly publicized recent Cabinet resignations from well-known Brexiteers like Boris Johnson, the former London of Mayor and now other former Foreign Secretary.
Andrew Walker: Yeah.
Jon Amarilio: What is it like to be a practicing lawyer in London right now given all this?
Andrew Walker: For most people they’re not paying attention to Brexit. I mean, it’s not affecting their day-to-day practice. Of course you can’t get away from this, it is in the news because it’s consuming all of our politicians’ thinking time, to the extent that they’re giving time to thinking. It’s consuming all of the legislative time in governments. So, there’s very little else being done at a political level, but that is all for most practitioners unless you’re a practitioner, an EU lawyer itself, for most practitioners it’s in the background.
The commercial practitioners have obviously got a thought to what’s the position of London going to be in long term, is Brexit going to have any implications? But for most people they’re just getting on with their daily lives, getting on with their practicing life. I am waiting to see what the final outcome is.
Jon Amarilio: That’s exciting. If nothing else, I’m sure.
Andrew Walker: Well, it’s one of these things where the closer you are to the middle of it, the more interesting it is as a subject, but exciting only in the sense that if you’re going down a ski run at full pelt, it’s quite exciting, but you know that you don’t do take that next corner correctly, it could get even more exciting.
Jon Amarilio: So, one of the things that we see in the news constantly about Brexit is the difference between hard and soft breaks. Can you explain that to our audience a little bit?
Andrew Walker: Yes, I can. It’s all just to do with the closeness of the relationship afterwards. The soft Brexit is what the relationship that is pretty close to what we have at the moment, so we’ve still got some other structures that we have from the EU, that we sort of carry those over.
The hard Brexit is one where we say, no, we sort of set up a hard border, we have a treaty negotiation from a free trade point of view, but essentially we’re a third country coming to the EU with what we are looking for a deal. We want a better deal of course with everybody else, but it’s very much more of a functional sort of business like relationship. So, it’s all to do with the closeness of the relationship in long term.
Jon Amarilio: Right so if you’re — I almost have difficulty believing that all the lawyers there aren’t freaking out because it means as you said if there’s a hard Brexit for example that hundreds, possibly thousands of laws need to be rewritten, rules and regulations, administrative codes, everything, it’s almost tabula rasa. You can’t just go back to the 70s.
Andrew Walker: Yeah. Except that the way it’s going to happen is that we are going to write all of the EU laws into our own laws to start with. So, there’s going to be no immediate change from that point of view, what it gives us – and — this is one of the perceived advantages of it, it is the right to change those laws. But you’ve got 40 years worth of law, it’s going to take you quite some time before you make any realistic changes to a lot of that. Yes, there are going to be some complications. So if you’ve got an agency, there’s an EU level that’s responsible for regulating something in the moment what we will now need on our own agency for that.
So there will be that sort of complication to be considered and there will be complexities that people haven’t spotted but at the moment the heavy lifting on this is being done by those who do the drafting of laws for the government. Civil servants doing all that work internally.
Jon Amarilio: Sure, so you’ll need to build a lot of those institutions. I imagine you’ll need to rework a lot of relationships with businesses on the continent, right because you won’t have things like freedom of travel anymore, if it’s gotten assuming it’s a hard Brexit,
You won’t have people practicing across borders the way they do now. Has all of that as counterintuitive as it may seem proven to be a boon for the legal industry?
Andrew Walker: I wouldn’t put it like that. I mean, there will be inevitably in a process of change, a need for legal advice.
Jon Amarilio: Right.
Andrew Walker: If you are trying to set up a new arrangement or you’re trying to work your way through a new deal between the UK and EU, you’ll need legal advice. But I think from most lawyers and most practice areas, it’s not going to have a massive difference and if you’re a criminal lawyer, the criminal law isn’t going to change.
Jon Amarilio: Well, right.
Andrew Walker: If you’re a family lawyer, the family law isn’t going to change. What will change is if you have an international dimension that’s got a European angle to it, so say, you’re dealing with an English husband and a Polish wife say, then that will be more complicated unless the final deal, what we do is one that keeps it as relatively straightforward as it is now. But until we know what the deal is, we don’t know quite how complicated it is going to be.
Jon Amarilio: How would you rate the odds of a hard or soft Brexit?
Andrew Walker: That’s the $1 million or $10 million dollar question.
Jon Amarilio: Yeah. I’m not asking you put money on it.
Andrew Walker: Well, I am certainly not going to. The chances of a – well, there’s another distinction to be drawn I think between a disorderly Brexit and an orderly one. And I think the risks of something disorderly, possibly the risk of something hard maybe going up at the moment because no one has any clarity about whether the deal that the UK government has put on the table is going to fly in Europe.
The European negotiators which are being done by the Commission, which is one of the European Union bodies taking a very hard line. I think there’s a lot of political work going on behind the scenes directly with all of the other —
Jon Amarilio: Sure, they are on opening positions, right.
Andrew Walker: Yeah, and we will see where that goes. The difficulty is that there’s a real difference between the European Union and the United States because the European Union is essentially just a legal construct.
Jon Amarilio: Right.
Andrew Walker: It’s a whole load of nations who’ve simply said in certain areas, we will agree to do a whole load of things together.
Jon Amarilio: Right.
Andrew Walker: And we will agree to effectively trust you on certain things in a way that we wouldn’t do if you’re in another country, somewhere else. That’s one thing. The United States is a nation. Yes, you have all of the States but you have something else to believe in. There’s a single nation, the United States of America this just doesn’t exist in EU level. And that’s quite as an —
Jon Amarilio: It doesn’t exist as much here anymore either.
Andrew Walker: Well, I’ll leave you, Jon, if you are too worried about that, but that that’s a really big distinction and what it means is whenever you’re trying to work out what the future is, you’ve got to think, well, how does that fit with this legal construct we’ve got? We’ve got this contract, how do you fit into this contract, if you’re going to stop being contracting party? So, it’s much more complicated from a legal perspective. I don’t think our politicians have always got the legal difficulties. I know.
Jon Amarilio: Yeah, I think that’s a beautiful understatement there. But, certainly, lawyers tend to thrive on uncertainty.
Andrew Walker: Yeah, they do in a sense that our clients end up needing — coming to us, needing advice, but that’s not something we aim for. We would rather straightforward certainly from a Bar Council level, we’ve been doing an awful lot of work trying to explain to the public, to our politicians, to the administration officials or having to deal with all of this, what the basic implications are.
As we see, there’s a real public interest, what lawyers have should at least be doing in this space, leaving aside politics, is trying to explain the complexities to people, trying to explain what it really means.
Jon Amarilio: If only those complexities have been explained before the referendum.
Andrew Walker: Well, yeah, some of us tried.
Jon Amarilio: Yeah. One of the things that came to mind a moment ago was a couple of months ago, the Chief Justice of the Irish Supreme Court, Frank Clark, was here and gave a talk at the CBA and he said that, he thought Brexit would be a real stimulus for Ireland’s legal community and industry because he thought Ireland – or his thinking rather is that Ireland is going to be the only common law country. You’re smiling right now, so there’s — I can’t wait to hear the answer.
Ireland is going to be the only common law country remaining in the EU, so there’s going to be a lot of demand for Irish lawyers. Do you think we’re going to see a lot of London barristers commuting to Dublin on a daily basis?
Andrew Walker: I think my immediate reaction as you would say that wouldn’t be. If there’s any one senses an opportunity then they will want to push that opportunity. I mean, I think there is something what he says, it’s not true to say that Ireland will be the only common law country left. There are two others, Cyprus and Malta that have very strong common law jurisdictions, but Ireland will be the largest common law jurisdiction left, and so, when it comes to arguing a common law position in Europe, they’ll be the only ones to do it.
I think that actually will mean that the influence of the common law in Europe will probably become difficult to maintain or harder to maintain that it is at the moment with the UK, they’re fighting our corner.
Jon Amarilio: You don’t think Malta is going to be able to pick up the slack?
Andrew Walker: I think it might be a little trickier, I mean, it’s a great —
Jon Amarilio: Yeah. It was relevant when the Ottomans were around.
Andrew Walker: Well, Cyprus similarly, but the truth of the matter is the continental Europe has a very different system from the common law system, but Ireland will have some opportunities for those English barristers who want to carry on being able to practice, get practicing rights of audience in the Court of Justice of the European Union in Luxembourg.
Then they will need to be members of a member State Bar. Once England ceases to be part of a member State, they’ll have to go somewhere else and some have gone over to Brussels and join the Belgian Bar. Others — for others, Ireland will be the obvious choice.
So, there’s an opportunity there for Ireland, but that’s in a relatively limited sphere. I say he would say that wouldn’t be because the Irish Bar and indeed the Irish government and judiciary have very much got behind the idea that they should be the port of call for commercial work after Brexit. But you might say so if the Dutch serve the French, serve the Germans, I mean everyone else is trying to do that.
Jon Amarilio: Sure. Everyone wants that, yeah.
Andrew Walker: Ireland has the advantages — or some of the advantages we have, I mean it’s got the English language, it’s got the common law system as part of its national system, but Dublin isn’t London.
Jon Amarilio: Yeah, so long-term consequences, I know this is incredibly difficult to get into, but assuming a negotiated middle road kind of Brexit, people come to their senses, which is certainly in the interest of both sides, I think. How do you think it’ll affect the practice of law over there?
Andrew Walker: I don’t think that it is going to have a significant impact. If you’re a law firm operating across Europe, yes, you will have to restructure probably, depending on what the final deal is.
Jon Amarilio: Probably grow right at edge.
Andrew Walker: Well, what you’ll probably have to just simply — you’ll probably stick with what you have at the moment but we’ll just restructure your firm’s internal arrangements, so that you’ve got individual firms inside the European Union in your firm based in London. But that’s manageable, it’s not ideal, but it’s manageable. We’re likely I think to be able to have a system whereby UK judgments are enforceable as they are now and the EU judgments are enforceable as they are now, and if we can’t negotiate that, we’ve got existing international treaties that will cover that. So, that’s unlikely to change significantly. The area of greatest uncertainty is probably just the rights of the individual lawyer.
Jon Amarilio: How so?
Andrew Walker: Well, the UK will remain open because we’ve always been open to — for practitioners internationally coming up to the UK and practicing. We have a very open regulatory system, we’re not proposing to change that, so long as we don’t change our immigration position so that you can come work, get working visas, which I’m hoping we won’t change, I think —
Jon Amarilio: Which has been one of the hard button issues behind Brexit, right?
Andrew Walker: Well, it has but not —
Jon Amarilio: Not at the professional level.
Andrew Walker: Not at professional level. So, the UK is going to remain open, the question will be how open are the 27 EU nations. We’ll have to have separate arrangements for each one because it’ll be a matter for their national law, some of them are quite close to foreign lawyers, some are quite open.
But, we will be in the same position as a US attorney wanting to practice in France or Germany or whatever because we will be a third country, unless we can negotiate something better than that.
So, at an individual level, there may be some greater difficulty in going over to Europe to advise a client, but if you’re a law firm, you’ll have other ways of dealing with that. If you are a member of the Bar, well, we do most of our stuff from London, but we’re already doing work internationally. London isn’t depending on being part of Europe.
Jon Amarilio: It never has.
Andrew Walker: Never has. A lot of the work that’s come to London has come from everywhere else.
Jon Amarilio: Right.
Andrew Walker: So, just because we’re cutting ourselves off in some way from the EU, sort of freedoms of movement and establishment and so on, shouldn’t really make that much of a difference.
Jon Amarilio: So, it’s not all doom and gloom.
Andrew Walker: I think it is all doom and gloom. I mean, we don’t have the same benefits as other parts of the economy in a sense that we’re not going to be running off to Japan and suddenly having some new free trade agreement for legal services with Japan, it’s just not like that.
We know that actually getting legal services trade agreements internationally are very difficult indeed. So, there’s that not that opportunity whereas some other areas of the economy are saying great, we can go off and get some new free trade deal. But I think the flip side of it is we also don’t see that there’s necessarily going to be that much of a negative.
Jon Amarilio: Okay, that’s a happy note. I think we’ll take our second break on that.
Andrew Walker: Well, I am going to be happy about it.
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Jon Amarilio: And we are back. As always, we want to close out today’s episode with a game we call ‘Stranger Than Legal Fiction’. I’ve done a little digging around the interwebs and found a strange in honor of our guest UK Law, that is still on the books, and I’ve made another one up completely and we’re going to see if our resident, Silk, can distinguish which law is real and which law is fake.
Andrew, are you ready?
Andrew Walker: I’m ready.
Jon Amarilio: Okay, so option number one, in the UK it is illegal, in fact a treasonable offense, to affix a postage stamp with the Monarchs likeness to a letter upside down. That’s option number one.
Option number two, in the UK all whales, porpoises, and sturgeon must be offered to the reigning monarch before being sold or used for personal purposes, which one is real?
Andrew Walker: The second one.
Jon Amarilio: Why?
Andrew Walker: That’s a tricky one.
Jon Amarilio: I want to see the barrister’s reasoning, how a barrister’s mind works.
Andrew Walker: Probably there’s something rattling around in the back of my mind about it.
Jon Amarilio: Oh really?
Andrew Walker: Particularly about sturgeon, but partly also because I mean if the first one was right it’s because it will be a likeness of the Queen rather than actually a real stamp.
Jon Amarilio: Yeah.
Andrew Walker: But putting it upside down, oh god, 31:41.
Jon Amarilio: Oh, you got it, you got it. Although, although, although the stamp one is a common myth apparently. There was a — I found an article in ‘The Daily Mail’ saying it was real and then did some research and found out they were just — they weren’t double-checking their sources on that.
Andrew Walker: Yeah.
Jon Amarilio: But whales, porpoises and sturgeon are considered “royal fish” and when taken are the personal property of the monarch as soon as they come ashore as part of her royal prerogative and I actually found some Blackstone commentary on this. He was praising, praising it, and he said that they are fish of superior excellence, which is a little bit redundant, but I’m not going to question Blackstone, he’s got some pedigree there. And this actually became a formal law during the reign of Edward II.
Andrew Walker: Yeah.
Jon Amarilio: For those of us on this side of the pond who probably don’t know their British royal history as well as the English and the British, that is the somewhat perhaps unfairly foppishly portrayed King in Braveheart who lost the Battle of Bannockburn to Robert, the Bruce, although in the end it ended up going the other way.
Andrew Walker: Indeed, it did.
Jon Amarilio: But well done, sir. Very well done.
Andrew Walker: Well, thank you very much and thank you for inviting me to be part of this podcast.
Jon Amarilio: Thank you for joining us. It’s been a really great time.
That’s our episode for today. I want to thank our distinguished guest, Andrew Walker, QC for joining us and reminding us that — reminding us is your American cousins that the world spins on despite our recent tribulations.
I also want to thank everyone who makes this machine run, including our executive producer Jen Byrne and our sound crew Ricardo Islas and Steve Weirich, and our friends at the Legal Talk Network.
Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter at @CBAatthebar. Please also rate and review us on Apple Podcast, iTunes, Google Play or wherever you download your podcast, it helps us get the word out.
Until next time, for everyone here at the CBA, thank you for joining us and we will see you soon @theBar.
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