Scholars have added much to the Brexit debate – but at what price?

Academic lawyers have helped to resolve legal puzzles, but wider engagement can be demanding and ineffective, says Kenneth Armstrong

October 10, 2019
Gina Miller
Source: Reuters (edited)

The recent Supreme Court case on the UK government’s prorogation of Parliament is but the latest example of Brexit throwing up tricky legal and constitutional questions that academic lawyers can play a useful role in helping to answer.

In an earlier era, law schools were populated by a mix of full-time academics and part-time practising lawyers. The rise of the research excellence framework (REF) and the professionalisation of higher education has diminished the overlap between the UK’s legal profession and academia, creating a clearer divide than is often found in other jurisdictions.

However, the legal teams that have been involved in the most high-profile Brexit-related cases include legal academics who are also barristers – such as UCL’s Tom Hickman QC, who acted for Gina Miller in the successful challenge to the legality of prorogation – and those like myself who are simply full-time academics.

Also of significance is the emergence of online blogging platforms for legal academics and practising lawyers. The influence of these new channels of communication and debate should not be underestimated. The 2017 Gina Miller case on the use of prerogative powers to trigger the Article 50 withdrawal process is a good example of the power of a single blog – written, in this case, by legal academics Nick Barber, Tom Hickman and Jeff King – to shape the litigation that followed.

Academics soon realised that blogging was a fast way to get arguments into the public domain and more directly into legal pleadings. However, the maintenance of personal sites has several downsides. It is time-consuming; it fragments the distribution of communication; and it lacks the academic warrant of a peer-edited domain. The UK Constitutional Law Association’s blog, by contrast, has been a very important test bed of a range of opinions that, following open, ex-post peer reviewing by the legal community, have found their way into arguments presented to the top courts.

With another REF cycle in full swing, it is tempting to think that Brexit and these interactions between the legal profession and the law school are generating research “impact” that will score highly. However, there is a mismatch between this real-time, blog-driven impact and the REF’s view of impact as the sequential outcome of a discrete research process that finds its tangible form in more formally peer-reviewed books and journals.

As the author of a book called Brexit Time: Leaving the EU – Why, How and When?, published a full year after the June 2016 referendum, it seems clear to me that the timelines for traditional academic publishing – and any impact they could produce – are hard to reconcile with the ever-changing political landscape of Brexit.

The rise of social media, and especially Twitter, has facilitated a process of exchange and dialogue even more rapid than the blogosphere. Significantly, it has created virtual legal communities that might otherwise struggle to form. The visibility this affords to lawyers and legal academics clearly facilitates a communicative and educational function, but it also suffers from the standard social media problems of producing echo chambers and facilitating vitriolic trolling, particularly of women lawyers.

Social media is, therefore, a double-edged sword. On the one hand, given the paucity of positive feedback loops within academia itself, there is clearly something seductive about being “liked” and “retweeted”, and of watching your number of “followers” grow. On the other hand, the exposure can come at a personal price, and can diminish the very nuance and reflectiveness that makes us academics in the first place. My evaluation of both the 2014 Scottish independence referendum and the aftermath of the European Union referendum is that subtlety is easily lost in the febrile communications around highly contested political matters.

The fundamental question is who benefits from this Brexit-influenced interaction and exposure? I view my own recent engagements with the legal profession very positively. The utter professionalism and teamwork of practising lawyers has been nothing short of inspiring. I also think there is no doubt that legal academics have had a profound effect in answering difficult legal questions. Yet for academics who already have to balance portfolio careers as teachers, researchers, managers and editors, these new demands can be just another plate to spin.

My anxiety increases when it comes to feeding the beast of the Brexit running commentary. Academics have done an enormous public service in their willingness to help the media fill slots to opine on the latest Brexit twists and turns. I feel that academics remain trusted by a population that despairs of our politics and our politicians. But I don’t think that punditry is a substitute for deeper academic reflection.

More importantly, it is not clear to me that there has been a wider social impact. Notwithstanding the distrust of politicians, I fear that Brexit remains refracted through the prism of party politics far more than through the lens of academic analysis and reflection.

Kenneth Armstrong is professor of European law at the University of Cambridge and was part of the legal team led by Aidan O’Neill QC that advised Joanna Cherry QC MP and other parliamentarians in their legal challenge to the prorogation of Parliament.

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Reader's comments (1)

Kenneth Armstrong points out a very important issue for academic lawyers. Unlike the medical profession, where it is usual for leading practitioners also to hold a position at a teaching hospital, the legal profession is split between academics and practitioners. This is relatively recent. As an undergraduate in the 1970s, many of my lecturers were in practice, either as part-time barristers and full-time lecturers or full -time barristers and part-time lecturers. A few of the most senior professors were also practising QCs. Notably, even if they were non-practising, most lecturers had a legal qualification. Nowadays the norm is increasingly for a lecturer not to be legally qualified. The pressure to publish is indeed responsible. The "academicisation" of legal scholarship has also had the consequence that a PhD is regarded as more important now as a professional preparation for a life of legal research and publishing. My generation of legal scholars regarded a Phd as an optional extra and a practising qualification was seen as equally useful. Fewer and fewer of my younger colleagues have had any formal or practical experience of legal practice. As a result many do not act as advisers, not do they seek out such a function. Their focus is on more scholarly questions and their contribution has more to offer scholarship in the social sciences and humanities generally. The positive result is a much richer literature that shows how law engages in wider social and humanistic ideas, giving important insights into the subject. The price paid is short-term practical relevance. My fear is that the balance has swung too far from practical legal issues. It is also odd that legal education is increasingly in the hands of lecturers who do not have the qualifications, or practical experience, that their students require to practice law, which is still the main destination of most of our graduates. We need to regain seeing professional qualifications, and practical experience, as being of great value. However the pressures of the REF have meant that we often overlook hiring experienced practitioners to lecturing positions in favour of more scholarly candidates who have a more proven record of publication.