The Irish backstop and the arrangements to replace it are now the focus of the eleventh-hour Brexit talks. Their importance is not because of Ireland, but because of the battle for the UK’s constitutional freedom to decide the laws that govern this country’s economy and trade.
Will the UK’s economic system break free of EU law allowing both an independent trade policy and the UK’s laws to diverge from the EU’s? ‘That is the point of our exit,’ as Boris Johnson told Donald Tusk in August.
Or will there be continued subjugation or an eventual UK return to the bloc? All depends on whether Boris Johnson's government, unlike Theresa May's, will withstand EU pressure towards economic alignment – or, as it is euphemistically called, the ‘level playing field’. Special rules for Northern Ireland that restrict its economic freedom pose a special danger, because they might be used as a bartering chip further down the line to make the whole UK align with the EU.
So far, it seems that the Prime Minister’s tactic of insisting that Britain will leave, deal or no deal, Benn Act or no Benn Act, on 31 October, may work. But nothing will be certain until Brexit happens, with or without a deal.
It is now more important than ever to have a serious no-deal plan. This should prepare an interim no deal (or WTO trade terms), the legal basis for the UK’s future trade globally and with the EU until a bilateral free trade deal has been signed.
The UK should make clear that even under a no-deal Brexit on 31 October, the EU – a fellow WTO member – cannot under international law discriminate against the UK’s trade or hold it up unnecessarily, because the EU and the UK will have identical laws, outcomes and standards on goods, at least for the time being.
That would also mean there are no regulatory barriers, no ‘punishments’, no obstructions at ports under the WTO framework, which prohibits unnecessary trade barriers, as City University’s trade lawyer, David Collins has explained.
The WTO also prohibits discriminatory treatment of products, such as imposing tougher rules for products coming from certain countries. This would rule out blockades and other kinds of non-cooperation threatened by some antagonists. It also obliges members to observe continuity of arrangements for cross-border trade when there is continuity in respect of rules for outcomes. In other ways too, the WTO is far from being the negative option painted for political reasons.
The political hysteria and scaremongering about ‘no deal’ at Westminster conceals the reality that in international law, WTO trade is far removed from the problematic scenario depicted by Brexit’s political opponents in both the Lords and the Commons. The disadvantages would be short-term and can be overcome with good preparation, which have now accelerated in the UK and its ports, but on which Dutch and French ports stole a march in being no-deal ready some time ago.
The misleading claims are based on political not economic arguments, as the economically literate in parliament and a number of economists, academics and other authorities have made clear. Trade under WTO Most Favoured Nation (MFN) terms (the ‘no deal’ option) would work very well for the UK with the right preparations which are now well underway.
In fact, a no-deal exit would be conducive to the UK and EU reaching a free trade agreement in due course, if both parties wanted it.
Boris Johnson should therefore keep no deal firmly in his mind and everyone else’s, even as he tries to secure a deal. He should know that it would be anything but a catastrophe, and that it opens the way to a future free trade deal with the EU as well as others globally; one to be reached between the UK as a sovereign power and the EU, the international organisation the UK is about to leave.
Johnson appears to understand that it is the people of this country who will carry its destiny forward. Some MPs may continue to conspire and combine to deploy parliament’s power to delay or prevent Brexit. But there is now a prime minister who intends to execute the people’s decision. He also seeks to restore the constitutional separation of powers of executive and legislature, so each respects the popular will. He understands, as British prime ministers long have, that it is from the people that he and other MPs, and both government and parliament, derive their power. This is a fight, not only to make Brexit happen as promised, but to preserve and restore the tattered institutions of government and parliament as the servant, not the master, of the people.
Sheila Lawlor is director of Politeia and author of Now or Never: Countering the Coup Against Britain's Democracy