As part of our research for the fifth UK Bar edition, WWL spoke to dozens of barristers across an array of practice areas, questioning them about trends and significant changes in the market, as well as hearing of the issues most pressing to those practising in this crucial sector of the UK legal industry. Brexit continues to loom large, but its effect in many respects offers opportunity as much as uncertainty. The importance of international arbitration to the Bar, as well as changes to labour and employment tribunals as a result of the abolition of fees, were also much discussed by respondents this year.
It appears that the UK Bar has made some changes in response to the criticism levelled at it by the British media and government bodies concerning its lack of gender and racial diversity. Bar Standards Board figures concerning the demographics of the profession reveal its slowly changing face. Between 2014 and 2018, the number of practising barristers increased by 5 per cent, but the number of women practising increased at twice this rate, while in 2018 the number of men practising fell slightly for the second time in three years. It is likely that this last figure is in part due to retirements at the senior end of the profession. Racial diversity has also improved, with 18 per cent more BME barristers in 2018 compared to 2014; BME practitioners now make up 16.3 per cent of the Bar. There is still much to be done, but the Bar is slowly evincing the change that makes it a more accessible and diverse institution that can adapt to the changes and demands of a modern world. This evolution and growth of the Bar is not limited to gender and race. Indeed, it has continued to grow its position as a centre for excellence in international commercial litigation. Research by TheCityUK suggests that 78 per cent of all commercial court cases in England and Wales involve international instructions for barristers, which goes hand in hand with the 64 per cent increase in barristers receiving international instructions from 2006-2016, and the £322 million in international earnings made by barristers in 2017. Furthermore, it is thought that up to 40 per cent of all corporate arbitration is conducted using English and Welsh law, which reinforces England’s position as a favoured seat for commercial arbitration and potentially gives a slight edge to counsel intimately familiar with the nuances of the legal system. Given the prevalence of English and Welsh law in international arbitration institutions, it seems that arbitration practitioners at least will not be too adversely affected by the consequences of Brexit. The Bar remains a key part of the UK’s global ranking as the second largest legal services jurisdiction by fee revenue, which ultimately contributed £26 billion to the British economy in 2016, according to TheCityUK.
Considering the demonstrable importance of the legal services sector to the UK economy, and its significant international standing, it comes as no surprise then that the Bar faces the same uncertainties and anxieties over Brexit’s consequences as most sectors. With the agreed EU withdrawal package not yet approved by the UK Parliament (at the time of writing in early March), there is still no clearly defined transition period in which to negotiate how the two legal systems will interact after secession from the European bloc. It appears that said uncertainty is taking its toll on the British economy: in the fourth quarter of 2018, economic growth halved to 0.3 per cent, with the Bank of England predicting that 2019 would see the slowest growth since the 2008 financial crisis. There appears to have been a trickle-down effect for commercial barristers in this regard. As several sets report, “Companies are more cautious about litigation due to Brexit.” One barrister specialising in restructuring and insurance matters stated, “Brexit, assuming it happens, will throw a lot of spanners in the works.” Consequently, large insurance providers are “taking steps to move big functions into the eurozone”. Elsewhere, barristers focusing on aviation, competition and international trade laws are acutely aware of the risks to these particular practice areas, given the importance of EU law. The extent of problems caused by Brexit is amply highlighted by UK sanctions work at the Bar, where barristers are taking a leading role “advising on a new sanctions act for post-Brexit Britain, because all sanctioning work is done through EU currently”.
Uncertainty is, however, a two-sided coin and opportunity has sprouted from what some see as an increasingly inhospitable UK market. Restructuring and insolvency specialists, for example, are reporting “a lot more terminations and insolvency-related work arising from a more unstable political and economic climate”. The housing and retail sectors seem to have borne the brunt of the Brexit uncertainty, as has been seen in the well-publicised administration or collapse of several well-known retail brands. With the future of the UK still in flux, and the global economy predicted by many likely to enter a downturn in the near future, it would seem that restructuring and insolvency practices are well placed to benefit, as is usually the case in such circumstances. Additionally, as discussed above, the strength of the UK as an arbitration seat provides ample opportunity, and was mentioned by practitioners to our research. US firms have cottoned on to this, and are reportedly “bulking up their presence in London for work in international arbitration”. Practitioners note that this will have an effect on the legal market in the long term, but it is “noticed less on the Bar side of practice currently”.
The Bar has also seen a dramatic change in labour and employment practice in the last year. With the Supreme Court abolishing the fee regime for employment tribunals in 2017, there has been an marked increase in employment tribunal work for barristers. However, this has strained a tribunal system that is ill equipped to deal with the sheer volume of new work, which has created “a huge backlog of cases as there are not enough judges to hear them”. The Bar has also become saturated with practitioners “trying to muscle their way into labour and employment practice” due to the combined impact of the Supreme Court’s decision, significant legal aid cuts in the last year and, according to some, the consequences of the “#MeToo” movement generating more discrimination and harassment work for barristers.
The UK Bar has continued to grow and slowly evolve in the past year. It has become a more diverse institution, as well as increasingly international and commercially focused. The importance of the Bar to the UK’s economy, and complex ties between the legal system and EU law, have been critical factors in generating anxiety about Brexit negotiations and the legal ramifications for the Bar. It is clear that some practitioners have seen and felt the impact of said uncertainty upon their practice. However, there are also those who see the opportunity within this uncertainty, and will benefit from it going forward. Whatever is to come after the UK eventually leaves the EU, the UK Bar has proven it is capable of taking steps to adapt to a changing world and thrive.