On Wednesday 16th January 2019, Government survived a confidence vote tabled the previous evening by the Labour leader Jeremy Corbyn, with a majority of 19 votes. I always believed it was a foregone conclusion that Tory rebels who 24 hours earlier had voted against the Prime Minister’s withdrawal deal, by 432 votes, would nevertheless vote, as they did, that they had confidence in their government to remain in power for the best interests of the country. Had it not been for the DUP voting in favour of the Government, the Tories may have found it difficult to survive the confidence vote.
For all intents and purposes therefore, the Prime Minister’s withdrawal deal is dead in the water and any attempt to revive it would be foolish and a waste of time. That was made clear by 432 MPs voting against her deal and only 202 voting in favour. The Prime Minister lost by 230 votes on her withdrawal deal. This was a catastrophic defeat for the government, and the first time in British constitutional history that the government has lost by such a gargantuan figure. The last time a British government was defeated by a sizeable margin was in 1924 when Ramsay MacDonald leading a minority Labour government lost by 166 votes. Any other Prime Minister leading a Government defeated by such unimaginable margin would have resigned, but it seems not this Prime Minister. The happenings of the last few days will be read in the annals of history, and debated and analysed by our children and grandchildren at their schools and universities in the years to come.
What is the next step
The Prime Minister is prepared, she said, to talk to senior parliamentarians to see whether Parliament would agree to a way forward on perhaps a new deal, or a substantially amended current withdrawal deal which can then be put to Parliament in the hope of being approved, to enable the Prime Minister to once again go to Brussels and try to renegotiate either major parts of the current withdrawal deal shortly to receive the endorsement of the EU, or to put forward completely fresh proposals. At the moment the EU has made it clear that there is no room for further negotiation, and the current deal is the only deal on offer. It intends to emphasise this point by all 27 members endorsing the current deal, so that insofar as the EU is concerned it is legally binding, and there is no room for manoeuver.
Did the British public vote for a deal or no deal?
Unfortunately, the Prime Minister’s offer to speak to senior parliamentarians and to hear proposals from them comes a little too late in my view. This is what she should have done during the course of negotiating the current withdrawal deal. She now sees that there is no option but to take the views of cross-party members into account. It is with regret however, that the leader of the Labour Party, has decided not to take part in cross-party negotiations until and unless the Prime Minister takes off the agenda Brexit with no deal. But of course, that is not possible, and he knows it, since although the majority of parliamentarians consider Brexit with a good deal is the best option, leaving without a deal must be on the agenda as a last resort, as the public voted to leave the European Union in the referendum of 23 June 2016. During that referendum campaign, there were arguments in favour of leaving with a good deal that would be easy to secure, but there were also arguments in favour of the leaving with no deal, and the benefits that could bring. Indeed, Boris Johnson the previous Foreign Secretary was one of the advocates of the advantages of Brexit without a deal during the referendum campaign. The British public therefore did vote with open eyes.
Furthermore, for the majority of the voting population, Brexit actually meant Brexit. They were not concerned so much about deals. What they had at the forefront of their mind in the voting booths, (because of so much hype, particularly from UKIP), was the need to control immigration, our borders, and have our own laws, without interference from the Court of Justice of the European communities in EU bureaucrats in Brussels.
The Irish backstop
The backstop, part of the withdrawal agreement has been the nemesis of the withdrawal deal. It was hardly mentioned in the 2016 referendum campaign, and no one appeared to realise that the issue between the border between Northern Ireland which is part of the United Kingdom, and southern Ireland part of the EU, would be a major problem to resolve upon Brexit, as Northern Ireland would leave with the rest of the United Kingdom, and on the same terms. For Brexiteers, the Irish backstop has become a dirty word, handcuffing the UK to the EU’s Customs union for an indefinite period, until a solution is reached regarding the Irish border without any infrastructure to show a physical border, and being tied to the customs union in this way, will prevent Britain striking trade deals around the world for the foreseeable future.
The unfortunate backstop was an insurance policy that there will never be a hard border on the island of Ireland whatever negotiations are reach with the EU. However, if Britain exits without a deal, leaving the Customs union and the single market, the EU would require a defined border between southern Ireland (EU territory), and the north, but nobody is willing to enforce it, and that is the interesting point. As of yet nobody has agreed to implement any physical border control.
Many southern Irish say that it may be hard for people outside of Ireland to imagine that the open backstop is not just about trade in goods and services or inspections for security, or for immigration. This is fundamentally about people they say. It is about peace and about identity. It is about the freedom for Irish citizens to move about from north to south and vice versa. Therefore, southern Ireland could not accept any deal that risked a return to a hard border, but the DUP could not accept a situation that risked Northern Ireland’s position in the UK. Whilst the DUP holds the balance of power at Westminster it was always going to be difficult for the Prime Minister to win enough support for the backstop.
Who is to enforce the backstop if Britain exits the EU with no deal on 29 March 2019? Furthermore, how will Britain trade in the event of exiting without a deal?
The UK government has been consistent in saying that even if there is no deal, it does not intend to bring in any new checks on goods crossing the border. If there is no deal which is more likely than not now, then the UK is going to be trading with the EU and the rest of the world on what is known as the World Trade Organisation (WTO) terms. These are the most basic set of rules for trade. They set out how far and in what way each member guarantees to keep its markets open to all other members. It means that tariffs on some goods particularly food and agriculture are much higher barriers to trade compared to the EU single market. The most important WTO principle is that there is no discrimination so if the UK government refused to check goods crossing the Irish border then it also could not check goods arriving into UK ports from China, Brazil or anywhere else.
If the UK were to breach of those WTO rules by having an open border for Ireland but maintaining goods checks on its other borders, the immediate practical impact would be effectively nothing! This is because there is nothing like a WTO enforcement body that is immediately going to charge the UK or force a policy change.
The need for the Prime Minister to keep her cabinet united
The Prime Minister must keep her cabinet United. She has always said that Britain cannot stay in the customs union. Whilst the withdrawal agreement referred to Britain remaining in the customs union, it was supposed to be for a temporary period, but the EU could not guarantee for how long. Labour requires a permanent customs union. In so far as talks are concerned with cross party members, if the Prime Minister falters and tries on a soft Brexit somehow acceding to Labour’s demands with a view to getting an amended deal through Parliament, she risks splitting her party.
Whilst the backstop exists, the UK will be tied to the customs union, and unable to conduct trade deals with other countries. This is one of the reasons why Brexiteers who say they have nothing to fear in a Brexit with no deal argue that Britain would in fact be able to do trade deals all of the world if it left with no deal. They argue that it would be better for Britain economically in fact in the long run, although there may be some difficulties in the short run. They argue that there will be no shortage of food or medicines and all that is scaremongering. They are totally against the permanent customs union and the Prime Minister is abiding by the will of the majority when she says that we ought to be out of the customs union. Other disadvantages of a permanent customs union arrangement is that Britain would have to pay for the privilege of access, as do the Norwegians and the Swiss. It will also mean that we are not in reality out of the European Union. Furthermore, we would have to accept the continued jurisdiction of the European Court of Justice. The whole point of leaving the EU was to have control of our own laws. It will also mean that there would still be free movement of goods and people. Again, this is not leaving the EU. Whilst we remain in the customs union there would be the insistence of the EU that we would have to incorporate into our domestic law all future regulations and directives whilst playing no role in the drafting of these new laws. That cannot be acceptable.
Both Norway and Switzerland accept the above requirements. They are smaller countries, and have concluded that in an EU of 28 countries they would have had little real power to influence the content of these rules even as members. Great Britain cannot be classed to be in that category.
For Britain remaining in a permanent customs union, until such time as technology has been devised to control the movement of goods from north to southern Ireland and vice versa, without a physical border on Brexit, would be humiliating and indefensible. It would go against the people’s vote. As one of the three largest economies in the EU, along with Germany and France, Britain have predominant influence on the content of all new laws. In future if Britain is tied into a permanent customs union pending approved technology as aforesaid, this would simply be unacceptable. There is no need for a backstop. It would be particularly unacceptable to the city of London that we would be unable to influence, much less veto, the content of new laws that might seriously damage their interest. This requirement creates an impenetrable barrier to remaining in the single market. Would France or Germany ever accept such an obligation? The answer is never! Therefore, a permanent customs union or one for an undefined period, to accept into our laws obligations that had never been accepted by a parliament cannot be contemplated.
The EU and the UK governments therefore share a common commitment to avoid a hard border between southern and Northern Ireland, but they have yet to work out the best way to avoid a hard border by checks and physical infrastructure at the border. The backstop arrangement whereby if there is no workable solution to the hard border in the event of a no deal Northern Ireland would stay in the customs union and much of the single market on a temporary basis pending a suitable long-term solution is not acceptable to Northern Ireland and therefore Great Britain.
Immigration issues in the event of a no deal Brexit
With respect to free movement of people’s rights whereby any EU national can work, in live in or provide services in any EU member state, providing they meet certain conditions, is a key citizens rights that will be affected by a no deal Brexit.
The government intends to implement a settled status regime for EU nationals in the UK whether there is a withdrawal agreement or not and has said the EU settlement scheme will open fully on 30 March 2019. EU citizens with settled status or pre-settled status to stay in the UK will be able to access healthcare, pensions and other benefits and services in the UK. For UK nationals in the EU it is unclear whether they would continue to access UK Social Security benefits and health care in the EU 27-member states they reside in. The existing reciprocal health care arrangements for the UK citizens in the EU and EU citizens in the UK would probably end. In this area much would depend on any negotiated arrangements between the UK and the EU and between the UK and individual EU 27 states. The government’s published White Paper on immigration is important therefore in relation to this matter whether or not there is an agreement. I would refer to a previous article I had written on the government’s White Paper with respect to immigration after Brexit. It is my view that those provisions will remain in place insofar as EU nationals and their dependents are concerned in the UK after Brexit even if we exit without a deal on 29 March 2019.
Insofar as immigration is concerned the government is clear that the reciprocal deal with the EU as set out in the withdrawn agreement is the only way to protect the rights of both UK nationals in the EU and EU citizens in the UK. The withdrawn agreement gives the citizens certainty that they can go on living their lives broadly as now.
The EU has already promised British people on short visits will be exempt from visas so long as British governments reciprocate for EU nationals. The British government has pledged to uphold the rights of 3.5 million EU citizens to live and work in the UK even in the event of a no deal Brexit, but some existing rights will disappear for example rights that allow elderly parents to come and live with grown-up children in the UK. Since EU citizens and their dependents will be allowed to live and work in the UK and obtain residency here and eventual naturalisation, in reciprocal terms it is unimaginable that British expatriates living in the EU would not be treated in the like manner.
I believe the way forward is now as follows as it is unlikely that any further negotiations will prove to be fruitful. The government should ask for an extension of article 50 to enable a second referendum to take place. I feel confident that the 27-member states will agree to that extension. They should be the following questions on the ballot paper for voters to answer: whether they want to stay in the EU or leave without a deal. Provided sufficient information is circulated to the public at large as to the advantages and disadvantages of each alternative, that coupled with all the information that is now known about the various scenarios that may not have been fully explored at the time of the 2016 referendum, would satisfy me as the only practical way forward. It is pointless to include a third alternative regarding whether the public wish to vote for the current withdrawal deal as that has been stymied by Parliament once and for all.
Although I can live with a second referendum with the above questions and safeguards in mind, I consider the British public will be sorely disappointed in having to go through this procedure again. I do not personally think there is an appetite for a second referendum, and I still think it will be a betrayal of democracy as 52% had voted to leave in 2016, mostly on practical issues they considered important to them as stated earlier in this article, and not necessarily because they were enticed to do so thinking they would have a good deal.
Furthermore, a second referendum would be a risk; what if for example the same result was achieved as in 2016? Will there be a third referendum? Will the EU provide a better deal if the result was more or less the same? If remainers won by a small margin of say 52%, would Brexiteers demand a third referendum? How would Great Britain appear on the world stage in this way? And how would this appearance be reflected in any further negotiations with the EU?
The EU have won these current rounds of negotiations. They have been forthright throughout. They have not budged from their stance, and they have been extremely tough with the United Kingdom, no doubt because they know they will be losing a valuable partner. But that is the way it is.
So, it is with a heavy heart that I would probably be able to live with a second referendum with the above questions asked. What is the alternative? To be honest, Parliament should revoke article 50 and Britain should stay in the EU. I do worry however that if this course of action is taken without a further a further referendum, the British public will not trust their politicians ever again, and this will be reflected in any future elections in this country.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.