The British farming industry is preparing itself for a ride, as the UK begins its journey towards exiting the EU. Some were eager to leave based on the hope of regaining control of British farming and now as Parliament sets out to implement Article 50, farmers and agricultural workers await on the changes in law. Anne Elliot is an expert in agriculture and speaks with us on the disputes she deals with, the evolution of agricultural law and what should be addressed as the UK leaves the EU.

What are the most common types of dispute you deal with related to the agricultural and rural industry?

Distribution of assets on death/succession, landlord and tenant relationships, partnership arrangements (formal/ informal and documented/undocumented).

How challenging is the agricultural sector to work in? How do you overcome these on a daily basis?

Rural businesses involve homes and livelihoods, not just jobs. Offering advice to clients can affect, or have implications, not only for our clients and their businesses, but also for their families, their neighbours, the surrounding rural area, their competitors, friends and foes. Every decision taken needs to be carefully considered, strategically thought through and well balanced. We use our expertise and experience within the agricultural sector and with our rural clients to help with those decisions.

What is the most popular/effective method of dispute resolution for agricultural disputes? Is ADR becoming more popular than litigation? Why?

I tend to work in the non-contentious area and hence refer to contentious agricultural work elsewhere. The most effective method of dispute resolution is talking and to encourage talking (though this is not always possible!).

As a thought leader, how have you helped visibly evolve the field of agricultural law?

Whilst not technically evolving the field of agricultural law, I like to think that I have been proactive in raising the profile of succession planning and its importance to the extent that the Land Agents, Accountants, Financial Advisers and Clients, with whom I deal know that I am a “woman on a mission”, to ensure that succession is planned and does not happen by default e.g. on death with all the appallingly difficult ramifications that can have for both the business and the family. I believe farmers are now more educated in the importance of succession planning.

Do you see the need for any new regulatory changes within this sector? If so, please explain.

Brexit is an obvious challenge for both the government and the agricultural sector – who knows what changes will be needed!

The sector may need to start considering how it will adapt if/when the government restricts Inheritance Tax reliefs; perhaps the current (and generous) availability of Agricultural and Business Property Reliefs will be reduced.

Hand in hand with this, the sector may ultimately need to address what will happen when Agricultural Holdings Act (AHA) tenancies have run their course and the AHA 1986 is no longer relevant. Will Farm Business Tenancies (FBTs) be the only form of letting of agricultural land, or, will the government create a new form of agricultural letting reference and legislation. Will the government look to restrict Inheritance Tax reliefs for tenanted land going forward?

With your experience as a farmer’s daughter, how do you believe you best understand your clients’ needs?

Farming is a way of life, not a job. Having experienced, lived and breathed the farming life helps you to understand what clients face on a daily basis: the 2 am phone calls to say the stock has escaped; the 5 am call to say the relief herdsman hasn’t turned up and you are needed to help with milking; the stock feed round every day of the year including Christmas Day and bank holidays; the rules, regulations and requirements to comply and ensure your produce is properly accountable and marketable; the constant monitoring of and worrying about the weather; the crucial timings of silage cuts and harvest, and the list goes on. You understand then that when your client needs you to act they want, need and deserve trust, confidence, and comprehensive and comprehensible advice delivered as quickly and cost effectively as possible. Our job is to ensure this happens.

How would you say your membership of the Agricultural Law Association (ALA) helped you change or further explore the agricultural law landscape?

The ALA offers superb access to other professionals involved in the agricultural field. It is a platform for sharing experiences, concerns and ideas and keeping up to date with developments and new legislation. It allows a connection to government to help influence future strategy, planning and legislation for the agricultural sector.

Is there anything else you would like to add?

Agricultural work is both commercial and property based – businesses operating from and on land – but also, given the fact that most farms are still family run, intensely personal and therefore involving family dynamics, cases can at times be tense. It helps to have an instinct/sixth sense to try to identify tension/possible tensions (ideally before they develop). This can often head off disputes particularly related to the issues mentioned above!

We spend a huge chunk of our time at work, so ensuring our workplace addresses our needs is vital as it will result in a reciprocated movement:  a happy workplace environment produces a thriving business. We speak to Lili Norris, whose approach to the field of Employment Law is very pragmatic and people oriented. She believes that in an area where human behaviour plays such a huge role, focussing on the law alone will produce correct answers in the academic sense, but not necessarily workable, commercial or practical answers on the ground. For this reason, she considers her work to be complementary to other legal firms rather than in competition with them. Lili addresses how far employment law has come along in the UK and what is in store post-Brexit

In advising businesses on employment matters in the UK, what do you find are the most pressing matters today?

The most pressing matters currently in Aberdeen, revolve around the low oil price and the effect this has had on, not only the oil industry, but all businesses in Aberdeen and the surrounding area. At the start of the downturn I was seeing individuals with settlement agreements as the redundancies started to mount. I tend to act for small to medium sized businesses. The ripple effect started to hit them a bit further down the line. Hotels, restaurants, leisure companies and private schools amongst others, are all starting to feel the effects as people begin to leave the city to find jobs elsewhere and companies cut back on their non-essential spending.

Who are commonly your clients and what sorts of challenges do each of these present?

My clients in terms of employment law advice and support tend to be small to medium sized businesses who either have a small HR team or no HR support at all. I offer support to them as and when they need it. I often find myself getting involved in more practical matters by providing hands on support, as well as advice.  The main challenge for businesses of this size (which make up more than 90% of all businesses in the UK) is trying to run a profitable business whilst staying within the bounds of the law.

My new clients are often not aware that they can insure their business against employment law claims simply by asking their existing broker and as a result they find themselves either facing an expensive claim or having to pay to settle claims to avoid litigation.

Most of them can fall foul of the law by trying to do what they feel is the right thing and in doing so they inadvertently do/say something they think will help the employee, but actually results in legal problems; by taking matters into their own hands, businesses often fail to safeguard themselves against unjustified claims.

Many businesses have experience of working with lawyers who give long, technical answers to their questions which are difficult to interpret and put into action. However, these businesses cannot afford permanent HR support, and so I tend to fill that gap; I am a bit of a hybrid HR/employment law resource, qualified in law, but happy to assist with practical requirements. I often work alongside the company’s solicitors to help implement the legal advice that has been given.

What do you find is the most common factor most employers are unaware of in terms of employment law? What areas do companies often need the most training in?

I think that most employers just find employment law to be a bit of a mystery. They are in business to do business. They hire people to carry out work. It is only when things go wrong that they become aware of the minefield they have to navigate to, for example, manage performance, ill-health or conduct.

The short answer to both of these questions is that many employers are unaware of the legally required processes and procedures they have to follow when it comes to dealing with employees. I do carry out training to help with this, but every case is so different that the training will only take them so far. The main thing the training achieves is to help them spot the danger areas so they know when to ask for additional support.

How did you enter this specialist area and what keeps you thriving from day to day?

For me employment law was an exciting area from the outset as I qualified on the coattails of the UK signing up to the European Social Charter under Tony Blair’s leadership. In the late 90’s and early 2000’s we were bombarded with new employment laws from Europe and there was a lot of scope for innovation and fast learning in the field.  After my traineeship, I was the first person in the firm to have the title ‘Employment Lawyer’ as this wasn’t a “thing” before. Court lawyers did employment tribunal representation and corporate lawyers drafted employment contracts.  It definitely felt like the most “rock and roll” place to be at the time.

Obviously that excitement eventually died down as the UK caught up with the rest of Europe.  The aftermath became even more interesting to me as now we had a mass of legislation where there previously was none, and all of these strange rules were being applied to everyday people.  Employees were becoming more litigious and more aware that they had certain rights and employers were having to think about people issues more than ever. Working as a lawyer in this later phase of legal development led me back to my roots in psychology. In a world where the laws governing employment were complex, intertwined and often contradictory, surely the best answer was to get back to grass roots and understand the people involved and what they needed from any given situation? This new challenge is what keeps me thriving now.

Where does workplace mediation fit into the world of employment law and what are the benefits of taking this approach?

The beauty of working on my own and not being affiliated to any of the larger law firms, is that I can occupy and maintain a status of “independent third party”.  I am instructed often by HR professionals in larger companies or by other lawyers to either carry out independent investigations into grievance or disciplinary situations or indeed to mediate between two or more people.

When an individual is at the point of raising a grievance, or is signed off with long term stress issues because they feel they have been bullied or treated badly, the legal approach is usually not helpful. This is because it forces the parties into opposition rather than collaboration. The employment “relationship” is just that: a relationship. Legal processes usually serve to break this relationship down rather than to repair it. By opting for some form of mediation, the employer can allow a neutral third party to step in and work closely with everyone to present a mutually desirable outcome, whether that involves getting things back on track or achieving an amicable and dignified parting.  The other benefit of this is that it can be done whilst the employee is signed off and it is usually all completed within a week or two.

What are your hopes for the next two years in regards to employment law, particularly following Brexit and overall changes in the employment arena (i.e gig economy)?

The UK has always had unique labour traditions which stem from very different industrial roots than the systems found in other countries in Europe. This is the main reason that the employment laws emanating from Europe have always been a poor fit for our own economy and industrial traditions. Ever the optimist, I am hopeful that Brexit will allow the UK to retain the laws that work for us, but to develop more practical and UK focussed employment law mechanisms that will help us remain competitive in foreign markets.  The trend towards a gig economy is probably fuelled by the high cost of employment rights and compliance with employment legislation.  Brexit may even serve to turn this around, depending on what the government of the day does with employment legislation in future.

Global resourcing specialist BPS World has warned that one of the main challenges facing employers in the UK in 2017 will be the impact of Brexit on the ability to attract talent, particularly in the high-value digital, technical and engineering industries where recruiters are already struggling with severe skills shortages. This follows the publication by BPS World, of: “Brexit: What the World is Saying” which, for the first time, researched the global impact of Brexit and how other countries believe it will impact on skills.

Simon Conington, Founder of BPS World, has urged the government to ensure that the UK continues to have access to skilled professional from Europe, particularly in the sectors where there are already skills shortages, or face a sharp decline in the UK’s ability to compete.

Although the UK will not be leaving the EU until 2019 we can expect an announcement this year on the shape of Brexit and what it will mean in practice. Under so-called ‘hard-Brexit’ freedom of movement would be restricted and it would be as difficult for talent to be recruited from France as from the US. It is this that alarms those at the sharp end of skills shortages, such as BPS World. Recruits themselves are already showing signs of being aware of these new competitive forces: research revealed that almost half (48%) of UK jobseekers were more concerned about finding a job than before the referendum.

Last year BPS World spoke to business leaders, representative bodies and professionals in the recruitment and retention sectors in Europe, India, Australia and the USA. The research focussed on the sectors most affected by skills shortages in the UK and overseas. It is in these sectors that the impact of Brexit and any restrictions or changes to work permits, is likely to be most keenly felt.

One of those they spoke to was Marco Dadomo, from the Verein Deutscher Ingenieure (VDI, Association of German Engineers) in Düsseldorf: “As we know, Britain has already problems finding enough specialists in this sector. Brexit will make it less attractive for international experts to work in Britain for a British company. We have also heard that quite a lot of UK experts of different sectors plan to leave Britain when Brexit will be implemented.”

Simon Conington, Founder of BPS World argued; “2017 is going to be a pivotal year for the UK economy. The decisions the government makes now on the implementation of Brexit will affect our ability to attract the talent we need to grow. The impact will be felt immediately as talent will not come to the UK if they know they will have to leave within two years. We urge the government to continue to ensure we have access to skilled people, particularly in sectors where we’re already struggling to find the talent we need.”

Kevin Green, Chief Executive of the REC welcomed the report: “This review of the international community’s fears and needs following the EU referendum contains warnings about the challenges employers could face in the future. The prospect of skill and talent shortages intensifying in higher-end sectors is a huge concern. The government must ensure that any changes to immigration policy as a result of the EU negotiations reflect immediate labour market needs so that businesses can continue to grow.”

(Source: BPS World)

The eleven justices of the Supreme Court heard evidence over four days in December before handing down their judgment today, establishing, by a margin of eight to three, that the UK Parliament must have a vote on whether the government may begin the official Brexit process, triggering Article 50.

The Supreme Court also ruled that the Scottish Parliament, and Welsh and Northern Ireland Assemblies need not contribute to the vote. Further legislation, based on the court ruling, will now be established by the government lawyer, which in itself will have to be favoured by both the House of Commons and House of Lords.

Here are some comments Lawyer Monthly has heard commentary from the below sources, who have provided their insight into the developments.

Lord Chancellor Elizabeth Truss:

Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our Supreme Court justices are people of integrity and impartiality.

While we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect the decision of the court.

Charles Brasted, Partner, Hogan Lovells:

This does not mean the end of legal issues relating to the Brexit process but it does mean that the focus of that process now shifts to Parliament. Ministers have been managing expectations for some time, and they will no doubt be ready to react quickly. The Government will be looking to get a Bill through quickly. The expectation is that it will be able to do that. However, there is a real risk that the Government may have to make concessions on parliamentary involvement in the process along the way.

From a practical perspective, it will be at least as important for the Government that the Court confirmed that it has no legal obligation to consult any of the devolved legislatures in Scotland, Northern Ireland or Wales – something which could have caused material delay, not least given the forthcoming Stormont elections. However, the Court did emphasise that the convention acts as a political constraint that plays an important role in the operation of constitution.

It may surprise some that the question of whether an article 50 notice could be revoked by the UK after the Brexit process has been triggered remains unanswered. The Government expressly resisted this issue being ruled on even though the Divisional Court noted that, if it could be revoked, the claim would be "blown out of the water". It is a question that could only ultimately be determined by the Court of Justice of the European Union, and other claimants have already come forward seeking to have that question decided.

More broadly, this ruling will be studied closely by constitutional lawyers as it addresses a number of central issues, including the interplay between the Government's executive powers in international law and legislative sovereignty, the powers of the Court to supervise the exercise of prerogative powers particularly where existing law or rights are affected, and the fundamentally political, not legal, nature of the Sewel Convention on consultation of devolved legislatures. However, the Court was at pains to say that its judgment reflects well-established constitutional principles.

Kieran Jones, Partner and Director of Insurance, Weightmans:

This is a decision of great constitutional importance – the reiteration that Parliament is sovereign and has the power to decide upon changes in UK law,‎ as opposed to the government using the historic royal prerogative power. The detail of the judgment will need to be digested over the coming days, and will form the basis of the exact course of action the Government may take when it comes to the draft legislation they put to Parliament.

The judgment was largely as expected, although the decision that the Government would not have to consult devolved Parliaments is quite a contentious point, which is likely to come as a great relief to the Department for Exiting the EU. Allowing devolved Parliaments a specific opportunity for consultation, given the overwhelming vote to remain in both Scotland and Northern Ireland, would have opened the doors to even more scrutiny and potential delay – it will be interesting to see how the respective parliaments respond to this.

This result should give Parliament the opportunity to debate the ground rules set out in the Prime Minister’s speech at Lancaster House last week, and it remains to be seen how much this debate will frustrate or delay the Article 50 process.  We keenly await the outline of the proposed legislation, which will impact the UK, the legal services industry and our clients.

Hazel Moffatt, Partner, DLA Piper:

The extent of Government's loss has been limited, the Supreme Court unanimously agreed that the Government does not require to either consult or seek the consent of the devolved governments. By doing so, the Supreme Court has removed at least one material political obstacle from the path of the Government.

The Government is said to have prepared various versions of a draft Bill ready to be introduced within the next week depending upon the Supreme Court ruling.  Whether its anticipated brevity and simplicity will help curtail debate and scope for amendment in both the House of Commons and the House of Lords - essential if it is to achieve its ambitious timetable of triggering Article 50 by the end of March - remains a major challenge. Managing the House of Lords in particular in this process may prove difficult.

There are also other legal proceedings in the offing, not least as to whether the Article 50 notice, once given, can be revoked. It is unlikely that we have seen the end of court involvement in the Brexit unwind.

Alexander Pelopidas, Partner, Rosling King LLP:

The Supreme Court noted that the referendum was only advisory and that the Act allowing for the referendum failed to specify what the consequences of the referendum would be.

The decision is a blow to the government and means that it must now propose a bill, for the approval of Parliament, which will allow the government to invoke Article 50. The government will need to tread carefully in respect of the bill that they propose to Parliament which opens the door potentially for politicking.

Whilst a one-line bill could, legally, give the government the authority it needs, it could be open to further legal challenge on the basis that it does not provide enough detail. Conversely, a more detailed bill could open the door for MPs to propose various amendments to the bill which could delay its approval and ultimately delay the Prime Minister’s current timetable for Brexit.

Mark Peters, Managing Director, Protiviti:

Whilst today’s verdict means that government will need to seek approval from MPs and peers to initiate an EU exit, there are still significant unknown risks and threats to an organisation's business objectives, financial management and its business operating model. Whatever your view on Brexit, a well-prepared organisation should still be thinking about potential implications and putting in place contingency arrangements across a wide range of scenarios that affect most if not every part of its business and operational activities. The organisations that are approaching Brexit as another ‘Change Driver’ and have a well-defined ‘Change Operating Model’ which is risk based, measurable and addresses the people, compliance, trading and innovation implications of Mrs May’s recently announced 12 point plan will be best positioned to be resilient, adapt and respond to the uncertainty.

Trevor Tayleur, Associate Professor, The University of Law:

The majority of the Supreme Court justices adopted the argument that succeeded in the High Court, namely that rights conferred by an Act of Parliament (the European Communities Act 1972) can only be removed by another Act of Parliament and not by royal prerogative powers. However, the government will be able to take considerable comfort from the fact that the Supreme Court said that it was up to Parliament to decide upon the form of legislation. Accordingly, a simple Bill authorising the service of the Article 50 notice will suffice, rather than the full-scale repeal of the 1972 Act.

Moreover, the majority of the Supreme Court ruled that the government does not need the consent of the Scottish Parliament and the Welsh and Northern Ireland Assemblies to trigger Article 50. Consequently, the government can be confident that it will be able to adhere to its timetable of serving the Article 50 notice in March.

Although the judgment is of great constitutional interest, its effect on the Brexit process is unlikely to be significant, as Parliament is likely to give the government the requisite authorisation.

Alistair Kinley, Director of Policy and Government Affairs, BLM:

A good deal of our work relates to advice and claims handling in respect of insurance policies issued by UK insurers and covering UK risks. The Supreme Court’s decision today will have no appreciable effect on that.

But we do act for many insurers who provide international covers and who have passporting arrangements in place to trade in other Member States. What is important there is not so much the outcome of the Supreme Court decision on the process for ‘Brexit’ but certainty, as soon as possible, about when the UK Government will trigger article 50 and what - given that we now know that the UK is leaving the single market - transitional arrangements for insurance and financial services will look like.

An important point to note is that we are going to need new rules for cross-border cases because the current ones (covering jurisdiction, applicable law and enforcement of judgments) come from EU regulations. These have a very wide scope, applying as much to consumer cases - foreign motor accidents, holiday injuries and the like - as to commercial disputes. Some early indication of the principles of the UK’s approach here would be very welcome for practitioners and insurers alike.

Families, consumers and businesses all benefit from greater clarity on Brexit, the Bar Council has said today.

The Chairman of the Bar, Andrew Langdon QC said: “Today’s speech from the Prime Minister has provided some much needed clarity on the Government’s direction of travel over Brexit.

“The announcement that the UK will not seek membership of the single market underlines the importance of securing the greatest possible market access for the services sector, including the legal services sector and all those parts of the economy which depend on these services. It is also vital that our post-Brexit agreement provides certainty for families, consumers and the victims of crime.

“The UK legal services market is worth £25.7 billion, employs approximately 370,000 people and generates £3.3 billion of net export revenue. The excellence of the legal services sector and justice system undoubtedly make the UK very attractive to international business and investors. The UK is also the global hub for dispute resolution.

“Central to our success is the ability of barristers, solicitors and other legal professionals to provide legal services across national borders within the EU, and we support the Prime Minister’s welcome reassurance that the UK will remain open to international talent.

“Brexit must also deliver certainty for families and consumers. It is vital for UK citizens that judgments made in one country will be recognised and enforceable in another. There are millions of couples of different nationalities living in Member States, including those who are UK citizens, or who have children who are UK citizens. They need to know that the arrangements to safeguard their children’s welfare will be respected and, if necessary, enforced through effective reciprocal matrimonial and financial arrangements.

“Consumers and traders also need to be confident that the contractual terms on which they do business can be efficiently enforced by courts in their own country.”

(Source: Bar Council)

Set to present the UK’s plans for the EU exit today, British Prime Minister Theresa May has ruled out any “half-in, half-out” situation, stating that the UK’s 12 point plan aims to not leave the nation with a sort of “partial membership,” but to build a "new and equal partnership" with the EU.

Within the 12 point plan, the PM says the UK intends to trade “as freely as possible,” but the government has not yet revealed much detail about the upcoming negotiations with the EU. It has however stated that the Brexit package talks will commence by the end of March.

It has taken over six months for the UK government to formulate its coming actions, and for now all eyes are on the UK’s intentions in regards to the single market, the customs union, and its trade relationship with the EU in years to come.

In previous reports, EU leaders have indicated that they will not allow the UK to “cherry pick” benefits such as the single market, while letting go of obligations such as the free movement of people. The PM on the other hand has suggested a curb on migration is one of the country’s top priorities.

According to the BBC, Labour's Sir Keir Starmer said: "Preserving our ability to trade successfully in Europe has to be the priority for business. Staying in the customs union is the best way to achieve that."

Sir Brendan Barber, the chair of Britain’s top employment relations service, Acas, predicts what lies in store within the world of work for 2017 in a blog published today. Brendan Barber said: “History may remember 2016 as the year of surprise voting results that defied polling experts, which ended with a period of industrial unrest. It is unlikely that the year ahead will be quieter and there are many changes on the horizon that will affect Britain's workplaces.

“There is still a great deal of uncertainty over how Brexit will impact the UK economy and employment law, much of which is based on European directives and regulations. The position of overseas workers will be a very important issue and how the EU exit affects them could have a huge impact on Britain’s businesses.

“To help reduce the gender pay gap in Britain’s workplaces, large employers will have to report on differences between men and women’s pay from April this year. Acas will be launching new advice for employers on best practice to help them comply with the new law.

“Gig working has been much in the news of late and is likely to be highly topical during 2017, not least because it is one of the issues being looked at by the Matthew Taylor Review for the Government.

“Whilst this form of working offers flexibility for those who want it, our own research has found that many people on zero hours contracts and undertaking agency work are confused about their employment status and rights. This uncertainty can lead to fears around job security and there’s been a series of legal challenges against employers recently by workers.

“Acas will be looking at gig work in more depth in 2017 and issuing further guidance around the many different types of employment status and accompanying workplace rights later this year.

“Acas of course continues to conciliate in disputes between groups of employees and their employers before, during and after industrial action and 2017 looks set to be another busy year for Acas.

“We are expecting to see more elements of the Trade Union Act being brought into effect in 2017. And Sir Ken Knight’s independent review of electronic voting is also set to report later this year.

“Whatever the challenges and opportunities over the coming year, Acas will play its full part in helping to improve the economy by encouraging good workplace relations. Our services are highly valued by those who use them and our latest research shows that for every £1 we spend, there is at least £13 benefit to the economy.”

(Source: Acas)

There has been much discussed on Brexit and the future of the UK, legally, economically and socially. Some are apprehensive the UK’s departure could result in hindering the UK’s economy and international appeal, whereas some imply it will bring a positive impact by releasing some of the EU’s shackles. We speak to Daniel Cheung, the Managing Partner at Maxwell Alves with expert knowledge on Brexit; he discusses the biggest legal impact of Brexit, M&A in the UK, property development, foreign direct investment (FDI) and immigration, post-Brexit.

What recent M&A transactions, including any that your firm has conducted, indicate the UK is remaining quite strong post-Brexit? Do you feel this will continue or hither when article 50 is underway?

In October 2016, we acted for a Hong Kong company that completed their purchase of the Isle of Eriska and its assets for an undisclosed sum. The Isle of Eriska is a 360 acre island on the west coast of Scotland. It has considerable history with the island having a fortified dwelling dating back to the Bronze Age 200 BC and its earliest title deeds was recorded in the 15^th century with the church as the legal owners of the island. The island has a 5-star luxury hotel, a Michelin star restaurant and a 9-hole golf course. I consider the Isle of Eriska to be symbolic of the assets and artefacts the UK provides, and together with its strong infrastructure, there is every reason to believe the UK will remain strong post-Brexit.

The general economic consensus is there will be a continuous amount of foreign investors buying into the UK but little UK-to-UK activity. The big deals require the greatest confidence as it involves the highest risk. Brexit does not correlate with a lack confidence but rather a lack of certainty. Lack of certainty does not mean a reduced rate of return as the housing bubble pre-2008 indicated certainty in the property and capital markets, but this was followed by the global financial crisis. Notwithstanding the lack of certainty, a sign the UK remains strong is shown by the agreement in July 2016 by AMC Theatres, the US cinema chain owned by China’s richest man Wang Jianlin, to buy the UK-based Odeon & UCI Cinemas Group in a deal worth £921m.  Then in September 2016, Poundland accepted a £610m takeover bid by South African retail group Steinhoff International.  These large M&A transactions show the UK remains strong post-Brexit.

Assuming article 50 is triggered in March 2017 as planned, the 2-year transition period will mean the UK should officially leave the EU by April 2019. I do not foresee a major change to M&A activity. For public companies, much of the content in the City Code on Takeovers and Mergers has been the same prior to the EU Takeovers Directive being implemented. Private M&A is likely to remain the same for domestic and cross border transactions because they are not subject to EU law or regulation. Indeed, our Isle of Eriska transaction was a private M&A. Many international M&A transactions are governed by English law and this is unlikely to change upon Article 50 being triggered.

What do you think will have the biggest impact on the legal sector after the UK have left the EU? What risks are you concerned about and what benefits do you see?

Property development may be impacted following Brexit due to some negative macroeconomic factors. What we are seeing is similar to the 2008 global financial crisis where banks were unwilling to lend to each other, causing liquidity to dry up. This was then reflected in 2010 with the Eurozone debt crisis with sovereigns hoarding their cash reserves at their central bank in case of potential runoffs on their bonds and deposits. The principle now is similar with there being a potential liquidity problem for development finance, particularly for the small and medium sized developers. The UK had property funds blocking investors from withdrawing their money following the Brexit vote. The lack of development finance is compounded further with a weaker pound, which increases the costs of construction materials and acts as a disincentive for migrant workers.

However, I consider that this is only a short-term blip when considering other factors in the round. Demand for UK housing exceeds supply, with around 300,000 new homes required each year. As long as there is demand, this will continue to attract foreign investors who wish to invest in UK property. I have just completed a transaction where my China-based client has purchased a Prime Central London property for £12m and the perception from many overseas buyers it that it is now a good time to capitalise on the UK property market. With appropriate mechanisms, foreign investors can fund the development with their deposits and in return, obtain a leasehold title to their property unit, whether that be a residential unit or a commercial unit, such as a hotel. Indeed, tourism has increased with the weaker pound and therefore the occupancy rate of hotels has increased.

I do believe there should be some regulatory body for property developers, particularly when large sums of deposits have been received from overseas investors. Much thought would need to go into how that regulatory body works, such as who can act as the regulator, whether they have insurance and re-insurance, use of hard or soft law, individual accreditations and membership, sanctions, etc. Regulated solicitors acting as the regulator for property developers may be a sound premise because they are in the “field” of daily property transactions, they have updated knowledge and can create mechanisms to govern property developers. Being in the field is important because when property developments are being funded by depositors, corporate finance is involved with the chain leading up to structured finance; having updated knowledge of the financing structure is crucial and will dictate how the regulatory body will govern property developers. This regulatory body can then provide a safer infrastructure for UK property investment which will fuel a higher demand from overseas investors that will provide mutual benefit.

Although the single market has been important for the UK, I consider the alternative had UK voted to remain in the EU. With the European Banking Union (EBU) being implemented to stem the Eurozone debt crisis, UK would have had further difficult decisions to make as to whether to opt-in or opt-out of the EBU, with both options having its own issues, such as: whether opting-in would result in the UK becoming less attractive to other global financial centres; or by opting-out, whether they would have a say in EU banking policies where Eurozone members automatically have the voting rights. EU’s lack of a political and fiscal union would have been issues at the forefront of UK’s involvement but with Brexit, one view is the benefit to the UK is they are now negotiating business deals for themselves rather than having to consider the impact to the other EU 27 countries.

As most people are aware of the disadvantages, do you see tighter immigration regulations and, if decided, a restriction on free movement, benefiting the UK in regards to their economic developments? What immigration regulation changes do you think corporate businesses should be aware of?

Just as I have explored the legal and economic factors for M&As and the property market, I think it is important to look at this too when discussing immigration. In terms of foreign students, research from PwC in 2015 showed foreign students brought in a net benefit of £2.3 billion to the UK economy. The universities in the UK are world-class and there is mutual benefit with the students gaining their degree, the universities profiting from their course fees and the UK benefiting from the students’ expenditure whilst in the UK. To restrict foreign students entering the UK may be a detriment to the universities as well as the UK economy.

Over the past 5 years or so, immigration law has undergone fundamental changes which mainly stems from “Immigration Rules” being upgraded to “hard law” status where its rules are fully enforceable by the Home Office. To make the rules clear and transparent, most appeal rights have now been extinguished and instead, the Immigration Rules dictate whether or not one is to be granted their visa, as decided by the Home Office (or immigration officer). With its hard law status, little discretion is afforded to the applicants and indeed, there is no “near-miss” principle – you either comply with the rule or you don’t. The immigration regulations are already quite tight and it is hard to see scope for tightening it further, other than how EU migrants and students are to be treated following Brexit.  For corporate businesses, there is a strict Sponsor Licence regime which is essentially a licence for an employer to recruit a limited number of foreign workers. To get a Sponsor Licence now requires a business plan explaining why potential foreign migrants may be recruited. Only skilled workers can be recruited, measured against level 6 of the National Vocational Qualifications and there is a minimum salary payable, depending on the job category. Before foreign workers are recruited, employers need to conduct a “Resident Labour Market Test” showing there are no suitable domestic workers able to fulfil that job role.

The Home Office have been strict in applying the Resident Labour Market Test. On the one hand, rules need strict enforcement so that it is clear and transparent. On the other hand, perhaps a ‘free market’ approach is more suitable where the employer has greater flexibility in recruiting workers it considers appropriate to their business. Ultimately, there may be negative externalities with strict rules and enforcement being made to reduce net migration, with a risk the UK becomes less attractive for foreign students or foreign employers. What I consider crucial in all this is the principle of fairness and democratic accountability without straining public resources, particularly when appeal rights have been extinguished. We have the Migration Advisory Committee who advises the Home Office of migration issues and much of the information relates to the UK economy. Perhaps a further institution can be established to review and advise the Home Office of their method of rule application and enforcement with its principles of fairness and democratic accountability being mandated. This can then promote transparency in the Home Office’s workings. In light of my answers given above, in relation to M&As and Property purchases, this transparency will hopefully promote foreign direct investment into the UK.

In terms of this FDI, such as investment from China, do you foresee any limitations?

If I use the analogy of the oil and gas industry where the two main players are the Host Government (HG) and the International Oil Companies (IOC): HG requires the capital and technology of IOCs in order to explore, develop and produce oil, and upon the oil being sold, both countries’ economy benefits. What governs their actions is their negotiated contract, which is influenced by the HG’s law as derived from their political preferences or local content. Here, the UK is the HG and seeks an investor in China, who is the IOC.  This is exemplified by projects such as Heathrow’s third runway expansion where China Investment Corporation own 10% of Heathrow Holdings. The issue for the UK is how much FDI they are willing to accept because political and local content issues arise, such as housing prices and immigration issues involving the use of foreign workers. If the UK suddenly changes its law, this creates a paradox to the very thing that attracted foreign investors in the first instance - the UK having a stable regulatory and legal system. The oil and gas industry can have a stabilisation mechanism so that the IOC (investor) does not become worse off than when they first contracted with the HG. We saw increased stamp duty rates for second home owners in April 2016 that followed consultation from December 2015. Akin to changing the monetary policy, the UK has the power to further tighten property purchases such as increasing income tax for buy-to-lets. Ultimately, and as touched upon above under the immigration section, what is important is the principle of fairness and democratic accountability so that the UK’s stable legal system is maintained for the benefit of both the UK public and overseas investors.

How do you measure your success?

Law firms have billing targets as companies have sales targets. However, I do not consider this as the measure of one’s success as the legal profession involves a lot of valuable non-chargeable work, particularly in my role as the firm’s Managing Partner. I consider my success should be measured against each client’s individual case adopting a qualitative approach with the ultimate question being: has the job been done? If it has, both parties have benefited and we both move on to the next project.  If the job has not yet been done, I need to ask myself whether things can be done to make it complete, or as complete as it can be pursuant to the client care letter. My success is invariably dependent on the percentage of successful cases that we, as a firm, can complete.

2016 saw an unfortunate amount of terrorist attacks in Europe, making immigration regulations tighter and creating a tougher challenge for those wanting to reside in Europe. This month, we speak to Emmanuel Ruchat who sheds some light into the business side of immigration law in Belgium, France and Switzerland.

Has the effect of the UK voting to leave the European Union impacted your work and your clients’ queries? If yes, what has been the effect and how have you had to manage the change?

We received a lot of applications to Belgian or French citizenship from British citizens living in these countries. The volume of work for such cases increased by 25%. In parallel, a number of SME located in UK also asked us an assistance to “transfer” their head office in Belgium or in France in view of keeping their right to free movement and to export in comfortable conditions.

What have been the recent regulatory developments in immigration law in Belgium, Paris and Geneva? Are there any developments that you are apprehensive about?

In France, the government has clearly been open to foreign investors who wish to obtain residents and citizenship. The former ‘card for an exceptional economic contribution’, which was clearly too selective (you would need to invest 10 million EUR or to create 50 jobs) was replaced in November 2016 by a hopeful and promising ‘talent passport’ making it easier to reach these goals. Odds are that the next government will make it even easier and more efficient for similar frameworks.

In Belgium, the field has been deeply impacted by two series of events: first, the law changed in 2012 about citizenship, requiring 5 years of residency for all applicants and in 2015 with the 6^th Reform of the State, leading to a transfer of competencies to regions for professional immigration. These changes result in an adaptation of our practice in terms of strategy, for example, the need to start a business before applying for residency, a particular region that has adapted this is Wallonia, whereas Brussels clearly became a place to avoid. Second, the terrorist attacks in March 2016 in Brussels probably discouraged a number of potential applicants from the Middle East, with the result that those who persevere have in fact good chances to succeed. We generally assist our clients to set up a company and to apply for a professional card, or for a work permit if they can be posted from their country.

In Switzerland, things are different. A vote in February 2014 first led to fears that the country would close its borders, even to neighbours and to all EU and or Schengen States. The final result led to appear that the government will manage to limit the consequences of this vote; nevertheless, the ticket to immigrate to this country remains expensive and difficult for businessmen. Only two main solutions exist: either you are a very wealthy person, so we can negotiate a tax lump sum (broadly speaking, leading to calculate taxes on your expenses rather than on your income), or you are sent as an employee in an existing subsidiary.

How has immigration law changed for businesses in Brussels, Paris and Geneva changed since you began practising in the sector?

As mentioned, terrorism resulted in more restrictive conditions and probably a deeper analysis of applicants’ profiles. Also, the economic crisis of 2008 changed the attitude of banks towards foreigners. The assistance of an attorney is more useful than ever, even for small and easy steps such as opening a bank account. Compliance laws have complicated the process. We really wish that the US will infuse a simplification on this level, after having complexified it for eight years. In any case, people seeking for an assistance in immigration law should make the difference between attorneys and so-called “consultants” who just sell them hazy packages.

You have Business Management and Business Law masters; how have these helped you advance when dealing with clients?

Having a masters in law, whatever the specialization is (business or not) is required in order to be an attorney-at-law, yet we think that business immigration is advantageous, because it implies true concerns of ethics and of mutual trust (with clients and with administration) that must be carried out by attorneys. The fact that my masters were business oriented helped me in choosing the kind of companies we can use as tool for foreigners, depending on their project and to know how these companies can work and evolve, what are the liabilities, etc. My knowledges in management brought me essential notions in accountancy, which I think should be mandatory for every lawyer.

As a Thought Leader, what is the most challenging aspect of your current role as Managing Partner and how do you overcome that?

Creativity is probably the biggest daily challenge, as I think it is – or should be – for every lawyer. Rules change often and it is our mission to adapt our recommendations accordingly, even when they become more binding and restrictive, like they are at the present time.

Are there any changes you wish you could make to legislations in professional immigration law, and why?

Obviously, I am in favour of a clarification, yet it could arise from a clear ‘golden passport’ system similar to other countries like Cyprus or Malta, but with a smaller investment. I have seen so many great businessmen, nice people, being treated by the administration as if they were gangsters, that an objective criterion, like the level of investment appears appropriate. Also, a bigger transparency in administration decision making, and mainly in banks, with appropriate and efficient recourses, is suitable. I must say that France is clearly on the right way on these levels.

What is the most common type of dispute you deal with in professional immigration law, and can you offer any advice on how businesses can avoid such dispute?

The only litigations we have in this field are related to unjustified refusals to grant residency or to renew it. As in regards to renewal issues, we always recommend our clients to keep their commitments, including those included in their first applications, and not to forget that a minimum of involvement is expected from them by the country.

Do you have experience with cases in different fields of law?

Yes. The fact that the majority of our clients are based outside EU led me to know people who have interests in EU without the need to immigrate. Generally, they are either people under sanctions by EU, or people sued before criminal jurisdiction. These two fields of law became major activities for me.

Are you planning to extend your activity in other countries?

Canada, and particularly Quebec, is currently a good answer both to some European clients (mainly French) who want to establish a business in a stable part of North America and to our American clients who do not wish to be resident in Europe but are afraid by some “uncertainties” in their country. We should be opening an office in Montreal, hopefully in 2017.

Food for Thought:

What’s most important to you?

Freedom.

What do you feel you couldn’t live without?

Silence! (As well as freedom, of course.)

How do you measure your success?

Number of clients of course!

The Government must put the public interest at the heart of its Brexit strategy, the Bar Council has warned as it publishes The Brexit Papers, produced to help ministers and civil servants pin point the most pressing legal concerns arising from the UK’s withdrawal from the EU.

The Brexit Papers have been written by members of the Brexit Working Group set up by the Bar Council to examine the range of complex issues arising from Brexit and to help the Government identify the legal and constitutional priorities.

Led by Hugh Mercer QC, the group has drawn on the combined expertise and experience of the profession across a wide range of practice areas.

Chair of the Brexit Working Group, Hugh Mercer QC, said: “EU law currently impacts nearly all areas of life. We need a plan to make sure that people do not suffer from uncertainty and ultimately end up worse off.

“If we are going to minimise the adverse impacts on UK citizens, a huge number of highly technical areas of law need looking at in fine detail. For example, we need to make sure that police and security services can co-operate so that criminals who go on the run can be stopped, and that parents who divorce in one country have the custody decisions upheld in another.

“We also need to restructure areas of law such as insolvency, competition and tax law otherwise businesses of all sizes could end up losing out. Our creative industries, for example, bring huge value to the UK economy, but we can only sustain that if our patents and trademarks continue to be recognised by the EU member states post-Brexit.

“There is a great deal of work to be done. The resources of the Brexit Working Group, as well as those of the Bar Council and the Bar as a profession, are being made available to the Government, parliamentarians and the media, as well as to the public, so that Brexit delivers the best deal possible for Britain.”

Chairman of the Bar, Chantal-Aimée Doerries QC said: “There has not been a more profound legal and constitutional challenge in living memory with which the UK Government has had to grapple, in terms of legal complexity, or significance for the long-term health and stability of the economy.

“The Bar as a profession is dedicated to serving the public interest. As the representative body for the Bar, we have been working to identify the key legal issues which we believe need to be addressed by the Executive and the Legislature to facilitate a transition that minimises the risk of legal uncertainty, the loss of rights, and possible adverse consequences to the national economy, and that capitalises on the opportunities for post-Brexit global Britain.

“Our interest is in helping to ensure that Brexit delivers the best deal possible for Britain.”

(Source: The Bar Council)