William Cash

How Britain’s legal system went global

How Britain's legal system went global
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It was Henry Fairlie in his famous article in The Spectator in 1955 that made the critical point about the way 'Establishment' power (political, legal, media, foreign office, civil service and so on) is exercised in Britain: namely such a 'matrix' of influence was exercised 'socially', behind closed doors; or maybe 'closed chambers' would be more apt as the Supreme Court faces the biggest legal showdown in its short history on Monday 5 December.

Charles Moore has come close to saying something similar to Fairlie, while reflecting in the Telegraph on the liberal credentials of certain members of the eleven Supreme Court judges who will be deciding whether to overturn the High Court ruling (brought by Gina Miller) that an Act of Parliament - as opposed to use of the 'Royal Prerogative' - is required to trigger Article 50. He worried whether senior members of the judiciary were part of a cosy club who shared seemingly progressive views (especially in human rights law) as opposed to having 'independence from one another'. Moore concluded that such a stance is hardly unexpected, as the UK's high judicial world 'suffer more from group-think than of old'.

But it is not just the senior members of the judiciary who are broadly supportive of the European legislature status quo. Most of the top tier ranks of the UK legal profession now suffer from 'group-think', because London has witnessed the emergence of a new global club of 'international and integrated' super law firms. Such firms often have a matrix of vested global corporate interests that are often 'aligned' with the pro-immigration, free-market interests of their corporate clients.

An example is Freshfields Bruckhaus Deringer, formed in 2000 by a 'three-way merger' between Freshfields in the UK - dating back to 1743 - and one German and another German-Austrian firm. When the Lawyer published its first ever financial survey of top European law firms – the Euro100 – Freshfields Bruckhaus Deringer came top ('Kings of Europe') with global turnover of £800m. 91 per cent of this - or £730m - was generated from its European businesses. The firm is retained by the Bank of England as its legal advisor. It advised both the German and British governments during the financial crisis of 2007/8.  Today it has £1.33 billion turnover, and well over 400 partners.

People often think the Big Bang in 1986 was about turning the old-fashioned pin-striped gents of the Square Mile into a global capital of navy suited international bankers. But it wasn’t just the old London banks that were swallowed up and bought out by American and foreign banks. The UK legal profession has exploded as well thanks to the EU market. Many top tier UK law firms now have international aspirations: they want to be an 'International LLP' law firm with offices around the world, not least in Brussels and Frankfurt. You are unlikely to build up an ‘international’ reputation as a lawyer unless you are embedded within the EU legal culture.

Take the new promo film for Schillings, one of the world’s top privacy/reputation law firms. The Night Manager-style legal promo trailer is narrated by a sexy, no-nonsense American woman who could have walked off the set of LA Law. The promo features yachts, metropolitan skylines and ‘global citizens at play’ on the red carpet; you'd never even know it was a British firm. The truth is that such law firms are becoming less like old law firms and more like management consultancies – Schillings say that in the future perhaps only half the firm will even be lawyers. The super law global boutiques are becoming hybrids: lobby firms with policy heads, peopled by ex-military strategists and lobby networks as much as lawyers. The Magic Circle firms are increasingly an international matrix of ‘super law-firms’ who do much more than mere law.

Another way the UK legal profession is changing is that law firms themselves are becoming increasingly quasi-politicised - not so much in terms of party political terms (few senior partners of Magic Circle firms will be Corbynistas) but rather in viewing the Economist as a corporate bible and generally subscribing to a liberal cultural and political agenda that is broadly pro-immigration and pro-globalisation.

Call this nexus the New Corporate Establishment. What binds it together is not so much class, education and schools, but rather a progressive and globalised outlook. This legal matrix now extends far beyond Britain, meaning that ambitious British lawyers must now position themselves in the heart of Europe, in order to familiarise themselves with EU law and gain access and influence with lobbyists and fellow EU lawyers.

Who can blame them?  Joining the EU has been a financial bonanza for the UK’s lawyers. Thanks to EU law, Halsbury's Statutes of England are now so swollen in size that no barrister can hope to display them in their chambers any more. When the fourth edition was published in 1987, it ran to 56 volumes. The fifth edition will stretch to 103 volumes, in order to contain 'improved integration of European law'.

This is not in any way more remarkable, or insidious, than discovering that senior members of the National Union of Farmers are pro-EU. Anybody wanting to rise up to the top ranks of the legal profession would find it hard not to have engaged with the EU over the last 25 years. Certainly since the 1972 European Communities Act – which made EU law supreme over UK law – few lawyers know anything different. Most don't even know a legal system where UK law is supreme over the EU. The more brilliant the lawyers,  the more versed they are with the more arcane and technical aspects of the EU legal system; with career promotion often resulting from being  'embedded' within it. Many senior lawyers relish the labyrinth-like complexities of the EU statute books with their competing jurisdictions and legal hierarchies which - until 23 June  - stopped at the European Court of Justice, Europe's Supreme Court.

Which brings us back to our Supreme Court – created by Tony Blair and opened in 2009 – who are currently recruiting for one new member. Several other seats will need filling as more Supreme Court judges are due to retire shortly. The court's own website makes it clear how important its 'Equality and Diversity' will be in recruiting the next set of judges.

Fair enough – of the current 11 judges, all are white and there is only one woman, Lady Hale. But some lawyers are worried that legal standards may not be what they were. To apply to be a Supreme Court judge you do not need be a practising lawyer or even a judge. All that is required is to have practised for 15 years as a court solicitor or barrister, after which all they need is to have been engaged in  'law related activities'. Whatever that means.

This worries some members of the legal classes. Some are openly asking if the legal profession has become ‘dumbed’ down since the days of such figures as Lord Hailsham. Are our lawyers less clever and brilliant than they used to be? It's no secret that some Tory MPs despaired of the quality of the legal case presented by the government team over Article 50 against Gina Miller. Normally the Lord Chancellor is also made the editor of Halsbury's statutes, but since Liz Truss is not even a lawyer, the august legal authority might be looking for a new editor.

I blame the American and other foreign banks that upset the ‘local graduate economy’ in London after Big Bang in 1986.  What has followed has been a slow City 'brain drain' away from the law towards banking, with top graduates finding the lure of investment banking salaries difficult to ignore. Who wants to fund a pupillage when you can start on £55,000 a year at an American bank?  Banks and hedge funds have proven to be much more alluring for the brightest graduates financially since 1986. No wonder the number of future barristers  'called to the Bar' has fallen from 1,629 in 2010 to just 1,184 in 2015.

It remains to be seen whether it is a good or bad thing that so much is now known about the views of our senior judges. The old Law Lords worked in a pre-internet age when we knew very little about the private views of any senior judge. Some would say such silence helped maintain the neutrality of the judiciary's independence.

But with the eyes of the world now on them, at least the Supreme Court judges know that their legal judgement will be under the highest level of scrutiny. Indeed Lord Kerr has even come forward publicly to stress that the judiciary must ‘apply the law’, irrelevant of the ‘personal views’ of the 11 judges on the Supreme Court. Which is why the Supreme Court judges need to be at their most brilliant, fair, independent and rational when they meet to decide on the Article 50 ruling. In many ways, the integrity of the judicial profession - not to mention the UK legal profession - is on trial.