BREXIT BOON FOR BARRISTERS?
Canadian trade lawyers could take advantage as Britain seeks out new deals
The U.K. government is facing a talent shortage as it ponders its exit from the European Union.
During its more than four decades as a member of the massive European trading block, Great Britain hasn’t needed to keep a roster of in-house government lawyers who know how to negotiate trade deals.
“For the last 40 years, the trade negotiations that have involved Britain have been done in Brussels,” said Derek Burney, who is a strategic adviser with law firm Norton Rose Fulbright Canada LLP.
Burney was chief of staff to prime minister Brian Mulroney during Canada’s free trade negotiations with the United States in the 1980s.
“Britain doesn’t have a trade negotiating capacity within its own government right now, which, I think, is a particular problem they’re going to have to address.” Other nations have taken note. In the wake of the June 23 Brexit referendum, when U.K. voters decided 52 to 48 per cent to leave the EU, the government of New Zealand said it was willing to make its trade negotiators available to Great Britain.
Canada’s private bar is also eyeing the opportunity.
Canada has developed a deep bench of private-sector trade lawyers who’ve worked in a variety of global settings. It’s also a trading nation and a Commonwealth member with rich historical, cultural and legal ties to the U.K. Even 115 years after her death, Queen Victoria’s birthday remains a national holiday in Canada.
Negotiating and drafting trade agreements is difficult work that requires technical expertise and a track record of experience, which, at the moment at least, may not be fully represented within the ranks of the British civil service. The British government employs about 40 trade lawyers, a mere fraction of the 550 working for the EU in Brussels. The U.K. has been forthright about its talent shortage, admitting that it will need to bolster ranks.
To be sure, this is not because the British have done something wrong or have been inadequately attentive to the international trade file. The reason is much simpler: When the U.K. joined what is now the European Union in 1973, the British government handed responsibility for negotiating trade agreements to bureaucrats in Brussels.
Now, 43 years later, the British government doesn’t have a lot of people on staff with real working memories of how to go about negotiating an international trade deal.
As you might well imagine, there is no shortage of legal and diplomatic talent waiting in the wings. Burney sees Britain’s government looking to recruit retired civil servants or politicians — though not until newly anointed U.K. Prime Minister Theresa May maps out her political strategy for the Brexit and Britain’s future trade relations.
“I think there is scope for legal advice with a trade and investment and regulatory depth of experience, even though it’s a bit premature to get a focus on that because the politics are still a bit of a jumble,” Burney says.
The biggest trade issue the U.K. faces is what sort of relationship it will have with the EU.
Article 50 of the Lisbon Treaty is the mechanism under which the U.K. would leave the EU, and it gives an exiting country two years to negotiate its departure. This can be extended, but only if both sides consent to prolong talks.
The immensity of the U.K.-EU talks might put every available legal hand on deck. If Britain has any in-house trade lawyers left over, it may still take years before the U.K. can sign a new trade deal with other countries.
Some have suggested that a deal between Canada, Australia, New Zealand and the U.K. would be easy to negotiate, given the existing familiarity between the laws of those countries. Perhaps, though hopefully the lawyers involved will come up with a better acronym for this trading block than CANZUK.
New Zealand was quick to offer up its negotiators. What about the Canadian government? Canada knows a thing or two about negotiating trade deals.
Within the past two years alone, Canada has struck trade deals with Ukraine, the EU and a 12-nation block that called the Trans-Pacific Partnership. Canada also has talks underway with several Caribbean and Central American nations, as well as with India, Japan, Morocco and Singapore.
It’s unknown whether the Canadian government has made a New Zealand-style offer to loan its trade lawyers to the U.K., though it would be unlikely, because Britain, at least for now, is still part of that Canada-EU deal, the Comprehensive Economic and Trade Agreement, which has yet to be ratified.
“We’ve got an excellent international trade law department, but I’ve not seen anything about them being possibly offered to the Brits,” said Murdoch Martyn, a Torontobased lawyer who also teaches trade law at Osgoode Hall.
CETA has been put on a “slow track” for approval, meaning that all 28 EU members must individually ratify the deal. As the ratification process unfolds, it could be too awkward for Canada to lend assistance to a country that is working to exit the EU, Martyn said.
“The other possibility is that the private sector will step in and help them out,” Martyn said.
“It’s not uncommon for private law firms to assist countries when they don’t have the resources to take on trade issues.”
The topic may not yet be ripe for discussion, said Matthew Kronby, a lawyer with Bennett Jones LLP in Toronto. The new U.K. government has to figure out exactly how it wants to approach Brexit before it worries about whether it has the right people in place to negotiate a Brexit deal, he said.
“While I suspect it’s very much the case that the U.K. will need experienced trade negotiators, the time frame in which they’re going to need them is still quite uncertain,” Kronby said. “They’re going to decide that as one or a number of the very many questions and issues they have to confront in the coming months.”
There is scope for legal advice ... it’s a bit premature to get a focus on that because the politics are still a bit of a jumble.