Jeremy Glover
Office:
Aldwych House
71-91 Aldwych
WC2B 4HN
City:
London
Country:
England
Tel:
+44 20 7421 1986
Fax:
+44 20 7421 1987

Questions and Answers:

Who's Who Legal Thought Leaders - Brexit

Jeremy has specialised in construction energy and engineering law for over 21 years at Fenwick Elliott. He advises on all aspects of projects from initial procurement to where necessary dispute avoidance and resolution. A member of the board of examiners on the Centre of Construction Law MSc programme at King’s College, London, Jeremy is the co-author of Understanding the FIDIC Red Book, and the lead editor of Building Contract Disputes: Practice and Precedents

ARE YOU ADVISING MORE EUROPEAN OR INTERNATIONAL FIRMS AS A RESULT OF THE BREXIT VOTE? WHAT SORT OF ADVICE ARE YOU GIVING?

Fenwick Elliott has always advised a number of European clients. What is interesting is that a number of them are now working in the UK. This has nothing to do with Brexit but is a result of the major infrastructure projects that have been let over the past few years. The primary advice we are giving is what to look out for when operating in UK conditions and with the contacts favoured in the UK, especially the NEC Form.

HOW BUSY IS THE CONSTRUCTION MARKET? TO WHAT EXTENT DO YOU THINK BREXIT IS AFFECTING THIS?

Not as busy as it could be. Is this down to Brexit? It is not as easy for developers and others to look forward to even the medium term with certainty and therefore confidence. This in itself brings uncertainty to contractors and suppliers about future workload.

HOW ARE YOUR CLIENTS PREPARING FOR THE POTENTIAL END OF FREE MOVEMENT OF LABOUR INTO AND OUT OF THE UK?

As the UK government has apparently (we treat nothing as certain given the current state of negotiations) agreed a 21-month implementation period with the EU after next March, everyone has a little more time than they think. In fact, it may not be until after March that we know what has and has not been agreed. That said, there is already a construction skills shortage, and the ending of free movement of labour will not help.

It is not really a question as to whether people will suddenly leave – some undoubtedly will – but as to how workers from abroad can be encouraged to come to the UK after Brexit. At best there will be an administrative cost to this. There may also be financial costs, incentives and work permits, if construction workers qualify given that the cap for skilled migrant Tier 2 visas was hit in January and February 2018.

However, you cannot simply assume that the government will necessarily take steps to protect other non-Brexit policy aims such as increasing the housing stock and so employers should be taking stock of the skills profile of their workforce in order to understand how they can best retain staff and plug any likely gaps. Potential options include investing in apprenticeships, and Inevitably some will look to the increased opportunities offered by automation and AI.

From a contract point of view, some contractors are suggesting that employers should bear the risk for future labour shortages by making this a ground for an extension of time.

TO WHAT EXTENT IS IT BUSINESS AS USUAL IN THE CONSTRUCTION LEGAL MARKET? HOW HAVE THE LAST TWO YEARS BEEN DIFFERENT FOR LAWYERS?

I do not think that the last two years have been particularly different. There are always uncertainties. From a legal point of view, the biggest recent(ish) change came with the adoption of adjudication as the primary means of dispute resolution. I suspect that if the government was to extend adjudication to each and every part of the construction industry, then that would be of be a benefit to the industry. I fear it is unlikely to happen.

If you asked me that same question in two years’ time, then my answer might be different. The rise of digitisation, through BIM and similar processes, is encouraging a more collaborative approach and changing the way everyone works. This will lead to changes in the way construction projects are put together, both in terms of the project team and the formal contract.

HOW DOES FENWICK ELLIOTT STAND OUT IN THE MARKET WITH RESPECT TO BREXIT-RELATED CONSTRUCTION ISSUES?

Fenwick Elliott’s construction law-related expertise means that we are well placed to advise the industry about Brexit issues. In the absence, for now at least, of any clear government strategy, the depth of our practical experience means that we are used to working together with our clients to achieve the best outcome whatever Brexit may throw at us.

TO WHAT EXTENT ARE WIDER GEOPOLITICAL FACTORS SUCH AS ‘TRADE WARS’ MORE PRESSING ISSUES THAN BREXIT?

There is no one geopolitical issue that is more pressing than the other. Although Brexit, perhaps because of the absence of any clear government strategy, dominates the news agenda, it is only part of a confused picture. What Brexit has in common with the “trade wars” being initiated against by the USA, the ongoing rise of technological innovation and everything else is the general uncertainty they all currently bring. 

ARE YOUR CLIENTS SEEING ANY POTENTIAL BENEFITS FROM BREXIT?

You have to try and look for opportunities everywhere. However, it is far too early to say whether or not there have been any benefits from Brexit for the construction industry.

The most likely benefit to the construction industry is that the UK government will recognise that it needs to invest in more infrastructure projects to boost the economy. Perhaps too, the government will recognise that it needs to help to boost the inevitable skills shortage. governments rarely look to the long-term, but investing in apprenticeships or something similar would be one way to provide a Brexit boost for the construction industry. 

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