“The United States is euthanising the system.”

- Trade Expert Iana Dreyer, on U.S. hostility to the WTO's highest Court, at an Institute for Government panel on 18 Sept.

In 2016, UK politician Boris Johnson campaigned for Brexit, promoting a view that the UK could advocate for itself at the World Trade Organisation (WTO) for the first time. Voters were told that the UK could then 'take back control' and 'hold all the cards'.

Since then, the dynamics of international trade have altered. Donald Trump's United States Government has plunged the WTO into the biggest crisis of its 24 year existence. The WTO's highest judicial body, its 'Appellate Body', is being “neutered”, as trade experts put it, by the United States.

That crisis has taken hold since Trump's administration began deliberately stifling the court, blocking any new judges from joining the seven-jurist Appellate Body as the old ones finish their terms.

As a result, the WTO now has just three overworked judges hearing all appeals on world trade disputes. On 10 December this year, so many of those jurists will have finished their terms that the Court will be effectively a skeleton, unable to reach quora to decide Appeals.

This may have consequences for the U.K.'s position in the world post-Brexit, as it does for every W.T.O. member. One former trade negotiator commented to me that in post-Brexit Britain: “If your royal flush relied on the ‘WTO’ card, it was probably going to get Trumped anyway.”

That view is echoed more formally by other trade experts. “The United States is euthanising the system,” said Borderlex Editor Iana Dreyer at a recent Institute for Government event that addressed the UK’s post-Brexit future.

Ms Dreyer warns that the Trump administration’s actions could spell ‘the beginning of the end for strong rule enforcement’ at the WTO. She added: “What has struck me, os the resounding silence of the UK in this whole thing". Being an EU member state does not prevent the UK ‘expressing itself’ on the crisis of the WTO's top judges: “France does it, Germany does it”.

In her book International Adjudication on Trial professor of Law Dr Sivan Shlomo-Agon has described the US's offensive on WTO jurists as the ‘biggest crisis’ in the WTO’s 24 years of existence: an ‘international court on trial, the fate of which is currently shrouded in uncertainty’.

Dr Shlomo-Agon writes that this ‘impasse’ created by the United States runs the risk of ‘returning to a power-based trading system in which powerful states can impose their will … at the same time that the interests of small players are left out on a limb.'

If that crisis continues, the implication for Britain would be its leaders left relatively powerless to shape the future of international trade at the WTO, compared to an intransigent and aggressive U.S.A., Dreyer remarked this month that the UK would have to become a 'smaller, agile player'. Far from holding all the cards.

PM Boris Johnson's 'Lessons of America'

[Pic by Steve Nimmons outside the Supreme Court]

"The Prime Minister's advice to Her Majesty was unlawful, void and of no effect"

- Supreme Court Judgement delivered by Lady Hale, 24 Sept 2019

In the United Kingdom, the Supreme Court unanimously agreed this month with Scotland's Court of Session that Boris Johnson's shut-down of Parliament was unlawful and invalid.

Throughout the period when Parliament was closed, right-wing commentators ignored the fact that a minority Government had ostensibly destroyed 18 laws in waiting, including legislation to support domestic abuse victims and to lower the animosity of divorcing couples.

The move would also have hampered scrutiny in a period of secrecy over what a 'no deal Brexit' might mean for the country. A key example of this is 'No Deal' plans to draft members of the military into local council posts, which appear to have been exposed in Private Eye, although every indication is that local authorities themselves are unaware of these plans.

In the lead-up to the Supreme Court judgment on 24 September, an increasingly unsubtle political offensive against the judiciary was waged in the UK's right-wing press. The Daily Mail has since branded this a "war" on judges. A hyperbole that is, in itself, worthy of discussion.

The right-leaning Spectator magazine, which is socially linked to Government advisor Dominic Cummings via his wife Mary Wakefield, focused its early-September cover on the ‘danger’ of courts ‘taking over’ politics.

On September 24th, when Lady Hale delivered the Court's excoriating judgment against the Government, The Spectator doubled down in its criticism of judges, with an opinion blog calling the Court’s decision a ‘constitutional outrage’.

More astonishing: the words of the Government's Justice Secretary Robert Buckland QC, who as Lord Chancellor is expected to defend the independence of the U.K. courts.

Mr Buckland tweeted on September 24th that the Government ‘respectfully disagrees with the Court’s decision’. He also claimed in the same tweet that the UK will leave the EU on 31 October. Both of these points carry a controversial whiff for a Lord Chancellor. A new law commonly dubbed the 'Benn Act', passed on September 9th, stipulates that the the Government must ask the E.U. for a three month extension to negotiate Brexit if Boris Johnson cannot get a Deal. If followed, this law makes it less likely that the U.K. will leave on October 31st. A January date or a second referendum then becomes arguably more likely.

For those reasons Buckland's tweet was regarded by many as an open challenge to the 'Benn Act' Law passed by Parliament, as well as to the Supreme Court's standing. A day later, Mr Buckland appeared to sweeten his initial tweet by condemning ‘personal attacks’ on judges.

Those remarks were followed this weekend by PM Boris Johnson appearing to back a suggestion by John Stevenson MP - raised in Parliament with the Attorney General, that in future, UK Supreme Court justices ought to undergo US-style vetting by politicians.

Mr Johnson remarked on that to the Telegraph newspaper that, when it comes to judiciary "the lessons of America are relevant."

Debate in the U.S. continues to rage over attempts to impeach President Donald Trump. meanwhile his Government's choke-hold on the WTO's Appellate Body continues, but with little ongoing commentary on that crisis in the media.

The example that the United States sets to other democracies and how its Government responds to legal oversight will continue to hold acute relevance, for the future of Britain's Brexit project, as much as for the rest of the world.



