3 immediate steps in-house counsel can take to successfully navigate Brexit

The LexisNexis Aspire networking and professional forum met on Thursday 7th June 2018. Hosted by Sophie Gould, Head of In-house, LexisNexis, this session looked at building your personal brand, in-house counsel’s role in navigating a successful Brexit for your business and included an interactive 'in conversation with' senior counsel who shared thoughts on how best junior in-house lawyers can succeed.

Aspire meets 4 times a year and provides a free networking service which is a key life line to many starting out in their in-house legal career.

This is the second in our series of three posts sharing insights and learnings from the forum. In this post Guy Lougher, Partner and Head of Brexit Advisory Unit, Pinsent Masons shares the findings from a recent survey - Brexit Report: Into the breach - conducted by Pinsent Masons which explored how in-house counsel can navigate a successful Brexit.

A clear disconnect 

The survey, conducted in association with YouGov and The Lawyer demonstrated a clear contrast between company Boards and GCs when it comes to Brexit.

When asked how well their organisation was prepared for Brexit, 58% of Board members thought their organisation was well prepared, but only 6% of GCs thought the same. Interestingly, 51% of organisations have already triggered their Brexit no-deal contingency plans, indicating that businesses cannot wait for clarity from the government.

You might imagine that organisations are holding cross-disciplinary discussions, including all those individuals best placed to see the risks and opportunities presented by Brexit. 71% of Boards suggested these had taken place in their organisation, but only 50% of GCs agreed that a full risk-assessment had taken place.

What's top of the agenda when it comes to the risks faced? 

When asked about the key Brexit risks to their organisation, customs duties and tariffs came up top for Board members. This could be because this is a prominent issue in the media, or because Boards are afraid they’ll be unable won’t be able to pass these additional costs on to the consumer.

Other hot topics were supply chain disruption, the ability to attract and retain both high and low skilled workers (depending on the industry) and data protection.

On the reporting of Brexit risks, there was general agreement that any possible risks should be reported to the Board. What goes into annual reports and accounts is a more challenging question. Companies are obliged to disclose any material risks to their shareholders. The FRC had indicated that the general uncertainty surrounding Brexit was sufficient, but expects the analysis to be more granular going forward. This is challenging for organisations to achieve in practice, as there are still so many unanswered questions.

Three immediate actions to take

In light of all the uncertainty, Guy suggested there are a number of things businesses should be doing now:

  • Plan for a range of Brexit scenarios immediately - hold scenario planning workshops with operational leads in the business
  • Assess the impact of five key areas on your business: customs duties & tariffs, supply chain disruption, labour shortages, restrictions on transfers of customer data and risk exposure in contracts
  • If any major risks are identified, report these to the Board immediately

The most common question posed on Brexit?

Guy also answered some questions about Brexit:

Q: Why are businesses concerned about GDPR when DPA 2018 is already in place?

A: This is partly because there are concerns with how the UK government uses data in relation to national security, and partly because the GDPR permits for national derogations in some areas – which could leave the UK exposed if the DPA 2018 doesn’t adequately meet EU standards in those areas.

Q: What sort of Brexit would be best for lawyers:

A: The less certainty and continuity, the more work there will be for lawyers – particularly litigators. This means that an EEA Brexit (where the UK remains part of the EEA), whilst ensuring the most certainty for business, is likely to produce the least work for lawyers.

Q: What’s the most common Brexit question your clients are asking?

A: ‘Can we have your Brexit clause?’ – unfortunately there’s no one size fits all clause here, so the answer is a bit more complicated!


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