Challenge, change, and opportunity

Published on: 17/05/2021

Robert Buckland QC’s speech to delegates at LIDW stressed contemporary challenges, such as Brexit, and the pandemic, and changes, such as enabling access to justice in a digital age – but also opportunities.

Delivering his keynote address to the virtual conference, Buckland traversed easy ground in stressing collaboration, referencing his colleague, and fellow silk, Lord Wolfson QC’s contribution at LIDW, in his fireside chat with Law Society president, Stephanie Boyce, and Bar Council chair, Derek Sweeting QC.

There was a nod, too, to the Standing International Forum of Commercial Courts, whose session, led by Lord Thomas, to which Sir Julian Flaux and Sir Robin Knowles had played an active part, as well as extolling the performance of the Business & Property Courts internationally.

Such collaboration, as emphasised by the pandemic, led Buckland to say that “If the last year has shown us anything, it is that in this era of globalisation, challenges are increasingly shared ones, and opportunities are increasingly shared opportunities.”

The international legal services sector’s “collective responses to change have more than proven their worth in these unprecedented times”, he argued, while acknowledging competition between jurisdictions was ongoing.

That naturally enough led Buckland to stress the power of City firms among the global legal market elite, and the presence of large numbers of foreign law firms in the capital; unreferenced, however, was any acknowledgement that in terms of market access, City firms now enjoyed less opportunities to enter EU markets than before Brexit, or the growing numbers of UK firms opening offices in Dublin.

Buckland’s predecessor, David Gauke, had addressed the 2019 event, against a backdrop in which Brexit was still a live issue. With Brexit now concluded, in 2021, Buckland was keen to stress the United Kingdom’s prospects for free trade agreements, and stronger trading relations with our global partners.

Buckland said: “Legal services an important part of these discussions in their own right but, as we all know, legal services underpin global trade and investment. A flourishing legal services sector, therefore, supports the growth of global trade and investment for the benefit of all the jurisdictions here in the UK.”

Reviewing the conference programme, Buckland hailed the Hon. Bart Katureebe, Chief Justice Emeritus of Uganda’s “invaluable insight into the ways in which commercial courts can play a key role in driving business growth” and “the importance of the transfer of expertise and skills between developed and developing countries.”

Diversity and inclusion, in and of itself, was praised, referencing, again, Boyce and Sweeting’s comments at the fireside chat, earlier, saying “we must be representative of the society we as a profession serve.”

However, it was digitisation that Buckland moved to next – mentioning the backlog of cases that had accrued in the court system to the pandemic – if arguably eliding over systemic underfunding of England & Wales’ justice system, which both the Law Society and Bar Council have repeatedly raised for many years.

Buckland gave praise to the “use of technology throughout the system to enable a gigantic increase in remote hearings”, but more, he said, was needed, while also mentioning the work done on resolving digital disputes, on LawTech, and cryptocurrency, in his address.

“In a more digitised world, consumers will demand more efficient and less expensive ways to gain access to legal services and resolve disputes – just as they frankly now can access a range of existing services at the push of a button,” he said.

Mediation, it seems, was one such solution – a theme taken up by the Master of the Rolls earlier in the week, with Buckland stating: “Re-defining the nature of dispute resolution will also form an important component of the government’s approach to that change.”

Buckland argued: “When it comes to resolving disputes, the court is rarely the best option, let’s be frank about it. Despite this, parties regularly resort to litigation when simpler and faster alternatives such as mediation and conciliation exist.”

Like Vos, he said mediation “should no longer be seen as ‘alternative’ but as integral to our justice system,” with consultation due to take place “to deliver a justice system…that is more accessible than any other jurisdiction on this planet.” That led him to raise the prospect of the UK acceding to the Singapore Convention on Mediation – which he said would be the subject of a consultation.

Other instances of mutual co-operation, however, were less fruitful for Buckland, referencing the decision, by the European Commission, not to support UK accession to the Lugano Convention – on which many City lawyers had pinned their hopes, not least David Greene, the Law Society’s immediate past president, who has urged pragmatism.

The Commission’s long-stated view was “participation is linked to the internal market” – membership of which the UK had flatly rejected in Brexit negotiations, preferring to focus on its sovereignty, as the UK defined it.

Buckland said “This position has no legal basis. The Lugano Convention is an international agreement, specifically open to third parties with no requirement for single market membership and the UK meets all criteria for accession.”

Ironically, at least to those who deprecate the UK government’s dogmatism on ongoing UK-EU relations, Buckland said “we shouldn’t let ideology get in the way of sensible, pragmatic cooperation on issues of mutual interest which are of genuine benefit not just to us but to EU citizens and businesses”.

He noted that “it is not the big multi-national law firms, that will feel the impact of this,” but consumers and small businesses, while European Council member states were divided on the merits of the UK application, “with many thinking pragmatically and voicing their support”.

In the meantime, opportunities, Buckland said, were there to be sought, referencing the MoJ’s extensive work in Africa and the Middle East, including a successful UK-Africa Legal Services conference. Seizing opportunities, he said, was a UK-wide strategy – and one that all UK law firms should take part in.

His most pressing challenge, he concluded, was “to ensure a strong recovery from COVID-19 and to recover, to rebuild and to restore the justice system… [which would]…”require change and will depend on our openness to innovation and to cooperation with partners old and partners new.”