Richard North, 21/08/2018  
 


In a my professional capacity as an expert witness, I've met and worked with quite a few barristers in my time, including QCs. Some have been good, some mediocre and some bloody awful – an embarrassment not only to their own profession but to humanity in general. The number who have been outstanding I can count on the fingers of one hand.

By itself, therefore, the title QC means very little other than its holder has attained a degree of seniority as a barrister and, if still practicing, is capable of reading and evaluating a brief and arguing a case in court. It does not imply any great (or any) expertise in any specific subject.

Lawyers acting outside their own areas of speciality have no claim to expertise and their opinions are no more valid than any other person working in the field. In some respects, the limited horizons or prejudices of lawyers may handicap them in understanding issues beyond their immediate experience.

When it comes to individual lawyers, therefore, I take them as I find them, and where they encroach into the land of Brexit, their work must stand on its merits, especially as they are well-capable of talking nonsense with the best of us.

That, of course, applies to George Peretz QC, who fancies himself as a popular expert in all things Brexit, even if his general cv does not attest to expertise in matters to do with the EU. He claims experience in the areas of public law, regulatory and tax issues, "with particular strengths in competition, VAT, agriculture, freedom of information and pharmaceuticals". And despite having taken cases to the ECJ, that does not make him an expert in the wide sweep of European Union affairs..

Still less is Mr Peretz an expert in matters to do with the WTO, which is a specialist field in its own right, and so complex as to encompass many sub-specialities which have their own band of experts.

Nevertheless, that has not prevented the Telegraph turning to Peretz for an opinion on the application of the so-called "WTO Option", to counter the recent propaganda from IDS, also published in the Telegraph.

As an aside, I don't see the point of a newspaper publishing these completely contradictory articles, without coming down on one side or another. Otherwise, it is just another example of cheap "he says, she says" journalism, leaving the bemused reader to choose between the two.

Turning to the Peretz article, if one it to take it as the sort of thing that a reasonably intelligent layman could produce, then it's not too bad – and certainly doesn't embrace quite as many errors as the equivalent piece by IDS.

Thus we get a pedestrian and somewhat formulaic exposition of how border controls will apply to UK goods being brought into the EU post-Brexit, although it is pretty clear that Mr Peretz has only skim-read the summaries and not delved into the details. His analysis is pretty superficial and in some areas so incomplete as to be misleading.

Furthermore, like so many lawyers with no particular knowledge or practical experience of a particular subject (and in common with the archetypal barrack-room lawyer), he tends to take a legalistic view of the written word, and thus interprets the powers and actions of the WTO as a legal construct.

What few lawyers seem fully able to grasp is that most international bodies are as much political as legal constructs – and in many cases more so. Treaty law, as it applies to them, is not the law in the rigid sense that statutes are applied in domestic courts. It is subject to vagaries of political expediency and the obvious problems of enforcement the affect a body which, in the case of the WTO, has no direct enforcement powers.

The "nuances" of international law – if you like to call them that, start to become important when we start to consider the impact of the WTO's non-discrimination rules to the EU and also to the UK in a post-Brexit environment.

Rightly, Peretz argues that these rules "make it hard for the EU to give the UK benefits that it doesn't give other third countries". In other words, he says, they "reduce the ability of the EU to waive or modify its rules and procedures for the UK’s benefit".

But, in the manner not of the intelligent layman but of a lawyer handicapped by his professional bias, he is entirely wrong in asserting that the rules will have equal impact on the UK. Says Peretz the lawyer, "Equally, if the UK's policy response to the problems of 'no deal' is to waive tariffs and checks on imports from the EU, it will also have to waive them for imports from (for example) China and the US in order to avoid well-founded claims of discrimination".

Noting that this is "unlikely to be politically attractive" (as well as potentially hazardous), what he doesn't take on board is the very nature of the WTO as a body dedicated to facilitating international trade.

As such, the WTO relies on negotiation as its main tool and regards the treaty law as a adjunct, to be used when all else fails and then only to achieve an effect. It is not a legal authority which regards the rule of law as a sacred principle or any part of its duty implementing the letter of the law.

Reflecting this, many of the WTO treaty provisions (and their predecessors in GATT) are not actionable merely on evidence of a breach. The WTO Agreement sets the additional test of requiring the aggrieved party (or parties) to have suffered injury – known in technical terms as "nullification or impairment".

Given this requirement, one can imagine a post-Brexit UK which, in order to keep goods flowing and to prevent the ports being clogged, decides to maintain its existing checks on what were EU third countries but decides to waive checks on EU produce which, until very recently it did not check at all.

In those circumstances, where the UK is maintaining the status quo, one has to ask whether any of the erstwhile third countries are materially disadvantaged. And, if they feel they are, their option is to go through the dispute procedures, potentially taking several years before an actional judgement is made, which in any event only allows the aggrieved parties to impose sanctions which have an effect on the target county similar to the damage originally sustained.

One can easily imagine the situation where the UK will take the political judgement that it should waive WTO rules. And even if it is later found to be in breach, such modest sanctions as may then apply – some time in the distant future – are nothing compared to the damage that might otherwise have been caused.

Similarly, if the UK decides to invoke the national security exemption, its lawyers will doubtless be able to keep any complainants tied up in the minutia of international law and WTO precedents so that, by the time anything is resolved – if, indeed, it is – the crisis will have been long past.

Understanding this has been part of my own personal learning curve. From looking at the strict application of international law, one moves on to look at the politics and, eventually, one is able to merge the issues and come to a more nuanced assessment of what might be real world responses.

Sadly, Mr Peretz is only at stage one, which means that his response in the Telegraph, while helpful, is not that convincing. He is able to point out some of the perils of the WTO Option, but is unable to offer a balanced view.

What needs to be conveyed, and with some urgency, is that – beyond the short-term effects - the main impact of a WTO "no deal" Brexit will be to cripple our export trade with the EU – slashing the current £270 billion of goods sold to a fraction of that level, a level unknown and not possible to estimate.

For very obvious reasons, the UK will be less inclined to restrict EU imports – not only will it have less legal justification, in a country which is only 60 percent sufficient in food, it cannot afford to turn away supplies from EU Member States – and will not find it easy to source alternatives.

Crucially, this means that many of the headline effects of Brexit will not materialise – or are capable of mitigation to such an extent that they will scarcely register as much more than minor perturbations. The really damaging effects will be longer-term and far less visible, the cumulative effect discernible only from periodic trade statistics.

This makes it very easy to dismiss the more lurid or theoretical claims as "project fear", thereby imparting a false sense of security as to the real effects of the WTO option.

Peretz's concluding point is that "leaving the single market and the customs union, without any replacement FTA and without transitional measures, would be a sudden and serious deterioration in our terms of trade with our major trading partner, with very serious impacts on UK businesses ranging from large car manufacturers to Welsh farmers exporting lamb to jobbing musicians (as well as on UK citizens living in the EU, an issue not mentioned by Duncan Smith)". WTO rules, he says, "do not alter those conclusions".

Apart from the irrational injection of the "customs unions", he is not wrong in what he says, but the case has yet to be made in the legacy media as to precisely why the WTO Option will be quite so harmful. For that, a lawyer is probably the wrong person to ask.






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