Planning for Brexit

In the wake of the UK’s exit from the EU, director of the International Commercial and Economic Law Research Group, Professor Raymond J Friel, believes planning is paramount.

“Plans are useless but planning is indispensable,” according to General Dwight D Eisenhower, supreme commander of the D-Day landings, one of the most complex military operations ever undertaken.

Talking in military terms, in war, as in life, plans seldom survive first contact with the enemy and it is the ability to adapt and change to a differing reality on the ground that separates the victorious from the vanquished. Plans are useless because they are made with imperfect information: we simply do not, and cannot, know all the myriad of factors we will face when implementing a plan.

So why is planning indispensable? The best planning separates the factors of which we cannot be certain from those which we can. Knowing this enables us to respond to the certainty in the problem and be alert to the uncertainty. In essence, this is the hallmark of how we teach law at UL and as we face into Brexit and all its ramifications over the coming years, Ireland will increasingly need legal graduates with that capability.

There is a lot that we are uncertain about with respect to Brexit. We don’t know what the final relationship between the UK and the EU will look like. We don’t know if the UK will surge economically or perish into irrelevancy. We don’t know if the EU will disintegrate or become more federalised.

Brexit certainties

We can be certain of a number of things that will occur as a result of Brexit, however, for which planning will be indispensable.

Firstly, English will become a minority language within the EU. It will be replaced with French or German and the inevitable marginalisation of English will impact on Ireland significantly.

Secondly, the influence of the common law, a shared legal tradition between Ireland and the UK, will diminish rapidly. Within the EU, common law will become almost unique to Ireland. The common law is the predominant legal framework for international trade, as it is the legal system that operates in nearly half of the G7 countries, including the USA. Without UK judges in EU courts to provide this influence, the legal system will revert to a more localised civil law approach, as operated before Ireland and the UK joined in 1973.

It was an article of faith for the government that our low corporate tax rate was sacrosanct, regardless of what other sacrifices needed to be made.

Thirdly, the absence of the UK will remove the strongest opponent to the increased standardisation of EU tax regimes, whose purpose is to remove internal tax competition, a competition from which Ireland has benefitted hugely. Even as Ireland sought financial help from the Troika, it was an article of faith for the government that our low corporate tax rate was sacrosanct, regardless of what other sacrifices needed to be made. It was EU member states, other than the UK, which fought hardest for it to be amended.

Finally, the EU Commission has recently become quite insular, attacking major US corporations operating within the union on competition, state aid and privacy infringements. One only has to look at the recent state aid ruling against Apple in Ireland and investigations against Google, Facebook and others for evidence of this. The UK’s more liberal laissez-faire attitude to US companies will no longer moderate the more interventionist approach of the EU. The post-Brexit decision of Apple to establish a large headquarters in London, as well as Snapchat’s decision to locate its European headquarters there, stands as testament to the UK’s legal environment.

These certainties match almost exactly what ‘Ireland Inc’ has used to attract Foreign Direct Investment over the last number of years – an English-speaking common law trading environment, with a low corporate tax rate that is conducive to foreign investors. How then can we prepare in a context where locating in Ireland will not, irrespective of whatever agreement follows Brexit, allow unfettered access to one of the world’s largest markets – the UK?

Planning at UL

The Law School at UL has already begun to not merely plan but to implement change to reflect the certainties of Brexit in terms of students, research and community engagement. UL’s programmes offer law students the choice to learn a modern European language, as well as an opportunity to study at a wide range of European partner law schools for a semester. Students can also avail of similar exchange opportunities within the US and Canada, while transatlantic courses have been piloted using video conferencing, giving access to students to a wide range of US legal experts.

A primary research area is the intersection between law and technology and UL projects include the commercialisation of drones and the ‘Uberisation’ of the workforce. In partnership with colleagues in the Kemmy Business School, two Horizon 2020 research awards have been secured on risk and liability issues for autonomous and semi-autonomous cars.

Reaching out to the community with events such as the IP Law Café, we are creating bridges to multinationals located in the Mid-West, building capacity among SMEs to deepen IP management and providing a networking forum between US and Irish business people and academia.

The recent success of Sarah McCarthy in the 2016 A&L Goodbody Bold Ideas Award is indicative of the next generation of law students graduating from UL.

Sarah won the award for an online tool to connect young Irish Fintech start-ups that lack the necessary funding to progress their ideas with investors from across the world online, using the crypto currency Bitcoin.

The Law School at UL is answering the certainties that we know Brexit will create by graduating a new breed of law student who is able to work in a global environment, driven by an entrepreneurial spirit and alive to the legal challenges that surround the widespread introduction of increasing levels of new technology. These graduates will help navigate us through the uncertainties posed by Brexit, providing us with the confidence that they will have the ability to respond correctly as these uncertainties resolve themselves.