Where will the lawyers be?

February 12, 2019

The “B” word, “Brexit”, seems to fill every newspaper, news programme, comedy sketch, social media post, dining room, and pub; in fact it seems to fill every waking moment!

Brexit lays claim to a sweep of opinion from, on the side, those who believe it will be the most liberating act of economic self-determination by a sovereign State for generations; to those on the other side who say it is the most calamitous act of self-harm ever perpetrated on the economic well-being of a country for generations.

The vote in June 2016 was close (52% to 48%) but opinions now could not be further apart. Politicians on each side of the debate insist they are right, and that they must be heard. There is little mood to compromise and little scope to do so. No side is willing to climbdown, and that in a nutshell is why the United Kingdom is in such an almighty pickle.

I am not going to try and unravel this or to explain the hidden truth. Frankly everything is in plain sight anyway. Whatever the merits of the arguments, there has been an obvious and fundamental lack of competency and integrity that has mired us in an inglorious and miserable stalemate. It is a mess. A huge, ugly, unfathomable, alarming and seemingly unending mess.

I have no idea what will happen. I am not sure if anyone knows what will happen. It is therefore probably pointless to speculate. My grandmother at times of much less uncertainty than Brexit, would have said “I am going to have a sit down and a cup of tea”. As a strategic narrative there has been nothing more erudite in the last two years and I commend her approach to all our leaders right now.

I have however wondered what role lawyers should proactively play as we plough on through what seems like a genuine existential crisis for a country torn apart by a vote, the consequences of which no one had adequately prepared for.

Lawyers of course have a significant role to play. Obviously, there are deals to be done, laws to advise on, and new regulatory structures to make work; but more than this, what role should lawyers play when SO much is SO uncertain?

It will not be an option for lawyers to be so cautious that businesses ossify in their own baffled confusion. Neither will it be an option for lawyers to be so gung-ho that anything goes until someone notices. And for most lawyers it definitely isn’t an option to say out loud “No idea mate, not a darn clue!”

Lawyers therefore find themselves in the middle of a politically created omni-muddle. An omni-muddle where businesses, employees, institutions, suppliers, shareholders, investors, communities and regulators essentially must make informed guesses about the situation today, tomorrow and for the foreseeable future.

Lawyers are of course valued for being able to advise in the grey areas. But there are shades of grey where at least some parameters are known, and then this Brexit shade of grey that is an extraordinary, unprecedented and almost certainly unique, utter shambles of political policy, planning and implementation.

Perhaps this is a time therefore when lawyers will have to fall back on (and proudly assert) that if the political grown-ups have left the building, they at least must act with integrity and not allow their independence to be compromised; or behave in a way that undermines the trust the public places in them and in the provision of legal services.

Will lawyers stand up and be heard as leaders in their own right?

I have a concern that some lawyers have become so used to being resplendently “commercial” and facilitating the current will of the Boards they advise, that they have relegated their governance, checks-and-balances, role to a level where it looks more fig-leave than cloak of invincibility. Lawyers cannot make up for a vacuum of policy and competency in government, but they might need to be super-aware of their responsibility as an ethical champion at a time, potentially, of national crisis.

The point I make therefore (and not to be too clever, too obtuse or too shrill) is that when the dust has finally settled and Brexit can be viewed as a past event, we must all reckon with whether we said what needed to be said, acted in a way that need to be seen, and behaved as our ancient and honourable profession would require and expect.

Partners in law firms, General Counsels in businesses, and every member of their teams, are being tested in these uniquely difficult and unpredictable times. Even more reason therefore to be a moral compass, in a world that seems to have lost its way.

Take care

Paul

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