Brexit: Summoning the collective will

Watching the current global political struggle between the chosen policy of some nations to act together to remedy a fault, against that of other nations to withdraw from collective action to remedy another fault, is like watching a tennis match. It is difficult to know where we are headed. Developments affecting lawyers are inevitably caught up in the contrary processes.

On the collective action front, there are two pieces of news which illustrate the collective tendency perfectly. At the international level, it has just been reported that progress has been made by the UN Human Rights Council on a UN treaty for transnational corporations and human rights. There will be further negotiations in October 2017, when delegates will discuss a first draft.

Business and human rights is a topic that implicates lawyers closely, mainly in terms of advice to clients. That is because of the inherent conflict between the duty to act in the client’s interest on the one hand, while being mindful of the general public interest on the other. The topic has consequences for other parts of lawyers’ work, too, such as professional indemnity insurance (is soft law advice covered?), and general business operations (how far must lawyers go in ensuring that their supply chain does not breach human rights?). The treaty will be the first international effort to replace soft law with hard law.

A second example of collective effort, at European level this time, is the recent announcement that EU consumer authorities and the European Commission met Facebook, Twitter and Google+ recently to remind them of their legal obligations under EU consumer law in two areas – unfair terms and conditions, and fraud and scams that mislead consumers. The UK is still part of this collective effort, through the Competition and Markets Authority. The social media companies undertook to finalise their compliance measures within one month. If, after reviewing them, the commission and the consumer authorities remain unsatisfied, there might be enforcement action.

Illustrations of unfair terms and conditions in this context arise in the platforms’ terms of service, which deprive consumers of rights such as the right to go to court in the member state of residence, the right to withdraw from an on-line purchase, or limitation or exclusion of the platforms’ liability in connection with the performance of the service. Fraud and scam cases include examples like subscription traps and the marketing of counterfeit products.

Ah, collective action! There was a time when some thought we were sailing towards a utopia of such initiatives. But, as we know well, there have been contrary developments, principally in the UK and the US. Here are two recent examples affecting lawyers from this other side of the coin.

Beginning with trade negotiations, do you remember TTIP (the Transatlantic Trade and Investment Partnership), the EU-US free trade deal thought to be of great benefit to lawyers in its promise of opening up legal services markets in the US states currently closed to us? Preliminary discussions were already taking place between professional organisations on both sides of the Atlantic, in expectation of a satisfactory conclusion to the negotiations. But there has been no progress for months, and it is thought unlikely now that there will be. Regardless of the Trump administration’s antipathy to the EU and to multilateral trade deals (for instance, president Trump has already withdrawn from the Trans-Pacific Partnership, TPP, the equivalent deal with Asia), a TTIP without the UK in it – because of Brexit – would be less interesting to the US anyway.

And do you also remember TiSA (Trade in Services Agreement), the trade deal between 23 countries, including the EU, which aims to liberalise the global legal services market, among others? It was due to be finalised at the end of last year, but has made no recent progress. It is suffering the same fate as TTIP, and mostly for the same reasons.

The second example of withdrawal from collective action comes from Brexit itself. We have had two recent reports from parliament, describing the consequences of withdrawal in EU justice matters, and suggesting ways of preserving the best of the current system. They are the House of Commons Justice Select Committee’s ‘Brexit: negotiating priorities for justice system’ and the House of Lords European Union Committee’s ‘Brexit: justice for families, individuals and businesses?’. Both show parliament at its best – after the referendum unfortunately, not before it.

They conclude that there are clear benefits, in civil and criminal justice, to continuing close legal cooperation between the UK and the EU after Brexit, modelled on the current system.

Of course, it is interesting to witness this turmoil from a lawyer’s point of view, but I hope it settles soon. We will naturally each have our own hopes for which tendency wins.

 Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs