Thursday

21st Nov 2019

Opinion

Wonky bananas and legal delusions in the Brexit camp

  • Rules on banana trade became a symbol of EU meddling (Photo: Mike Mozart)

Taking back control over laws, financial, and immigration policies: what does it mean for the future external relations of the UK?

What are the possible legal relationships between the UK and the EU?

Read and decide

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The prospect of a no-deal Brexit pushed by British prime minister Boris Johnson is closely related to the ability of the UK to decide unilaterally all laws, without any outside interference.

Johnson's infamous remarks on the EU's rules on the shape of the bananas or the power of the vacuum cleaners, calling them "crazy" epitomise, what some hard Brexiteers want out of leaving the EU: the ability to choose their own rules, at all levels.

However, how can that be realised concretely?

What are the models and scenarios in which that can be totally achieved?

When looking at the rhetoric that all laws have to be decided unilaterally by the UK in order to be acceptable, one wonders how such view can be concretely upheld.

Legal isolationism is a prominent trait of hard Brexiteers, however the only way to achieve complete control over all laws is necessarily connected with broader economic isolationism, which most hard Brexiteers are against.

As the economy is central to the debate in Brexit, the relationship between legal isolationism and the economy should be emphasised further.

At the core of the discourse of hard Brexiteers lies the total control and therefore inflexibility in the design of all rules, despite the potential interrelations they create with the outside world.

The idea that rules designed in the UK exist in a vacuum, closed from the outside, has consequences on the conduct of the UK towards the world.

Indeed, it assumes that all partners must accept the rules the UK designs, without possible interventions, in cases where normally negotiations take place.

Bananas and vacuum cleaners

For example, the sizes or shapes of the bananas have been regulated in the spirit of rendering the trade of bananas smoother, between countries.

The same applies to the power of vacuum cleaners (together with environmental concerns on energy consumption). The aim of these regulations is to achieve a common goal, together.

However, the moment the UK decides to create separate rules and supposedly different from the other nations (it is the whole point of having control of them, so that they can be different), it sends a different message to the outside world, one where negotiations are not welcome.

What bothers some hard Brexiteers is that they do not retain all the power over the rules and have to concede certain points to others.

This misunderstands what cooperation means.

When former British prime minister David Cameron came back from the EU without all his demands having been met, that meant that the UK had to leave the EU.

But that implies the view that the UK should be able to decide unilaterally all the rules over other nations.

The basic idea of finding mutual grounds is stripped of its meaning.

That leaves two options for the UK: either isolation or relations of subordination.

This is because no other nation will want to accept rules not negotiated, especially when those rules are to regulate goods or services that have a transnational element.

Therefore, either the UK decides rules unilaterally that no other national will apply, or it seeks to impose unilaterally those rules.

The UK wants to make transnational rules national.

This is an oxymoron.

There is an inherent contradiction between the "taking back control of our laws" and rules of commerce and trade.

For trade relations, even in the case where the UK only uses World Trade Organisation rules, those rules are made by negotiation and will not be amended whenever and however the UK wants.

And the reason for it is that nations cooperate in order to find agreement.

Of course, countries with more power can impose certain rules on other countries with less power, but it does not take away the fact that one nation cannot design the system on its own.

The only way that unilateral decisions can be imposed in a transnational context is through subordination of other nations.

Is this the way hard Brexiteers want to reconcile legal isolationism with economic openness?

Author bio

Justine Bendel teaches law at the University of Sheffield in the UK.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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