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The UK’s scheduled departure from the European Union was thrust into a new realm of uncertainty this week, after Prime Minister Theresa May’s Brexit plan was overwhelmingly rejected by MPs in Parliament. As exit day from the EU on 29 March draws near, the terms in which the UK will leave is still unclear. Meanwhile, Parliament remains deeply divided on the way forward, and EU leaders have repeatedly stated that they are unwilling to re-negotiate the PM’s Brexit deal.
In a quickfire Q&A with Thomson Reuters Legal Insights Europe, Anneli Howard, Barrister at Monckton Chambers, who specialises in EU law and Brexit, has provided her views on the state of play and what could happen next.
The rejection of Prime Minister Theresa May’s Brexit deal in Parliament was one of the largest defeats for a sitting government in history. What do you think this tells us about the current situation?
For a nation renowned for its sense of irony, Brexit is the ultimate satire. The PM has battled for two years trying to bridge irreconcilable differences between Remain and Leave, and ends up pleasing no one. The magnitude of the defeat only shows the degree of conflict. Leavers rejected the deal because it represented too close cooperation with the EU over goods; Remainers shunned it because it didn’t guarantee sufficient integration or comprehensive trade in services and investment.
The error was starting off on timer with no clear sense of direction and under a false start on the Lancaster House red lines. Those red lines were mutually incompatible from the outset and designed upon a flawed understanding that the UK could somehow have its cake and eat it. That we could have global free trade deals yet at the same time curb migration.
That we could impose our own global trading standards at the same time as maintaining our trading relationship with the EU. That we could have access to European markets without paying a penny. Ultimately, the key deciding factors (such the Irish Border and services), did not even feature in the red lines. The defeat was written in the runes in many ways. Reality bites.
Going forward, I think it is critical that everyone (whether MPs or citizens) focuses coolly on facts and weighs up risks for the nation, as a whole, rather than falling back on easy assertions, aspirations or pure speculation.
Neither side can have it all. We need to find some mature level-headed compromise that marries global integration and trade with sovereignty and self-determination. If we cannot set aside our differences and act in the best national interest, we risk going out without a deal—a move that everyone agrees would be highly damaging to the future of this country and the next generation.
How significant was the no confidence motion in the government, and what impact may it have?
No significance—no impact. Its only message is that adversarial tribalism will not resolve this conflict. Our existing political framework and democratic process is broken and politicians need to put party politics aside and reach out to find new ways of collaborative working.
What steps do you expect the government to take next in relation to Brexit?
I have no expectations—only hopes. I would hope that the government can engage in open dialogue and harness enough cross-party input to forge a way forward that seeks to find common ground and minimise collateral damage.
There is not much time to play with and patience on the other side of the Channel is fast wearing thin. We should not forget that whatever solution we find cannot simply be taken in a UK vacuum, but will have to be negotiated with the EU27 or possibly the EEA30. We will also need, post Miller, primary legislation to implement most of the possible options and/or to amend primary legislation in line with our constitutional requirements.
I suspect that whatever steps the government takes, ultimately in the light of Miller, it will be Parliament that decides. I think the immediate steps are to get an extension to the Article 50 process while we work through our ‘issues’. Then we need headspace to calmly narrow down the options and establish a realistic baseline from which we can effectively compare the merits of the options available.
There should be a vote or indicative motion on whether Parliament is willing to proceed on a ‘no deal’ basis. That is the only safe way to test the real appetite for a hard Brexit. If that is not a realistic baseline then Parliament needs to rule that out in line with our constitutional requirements.
Then there needs to be a choice between renegotiating the WA/PD—whether that is a version of the current WA or Norway Plus—or withdrawing the Article 50 notice altogether and remaining on our existing terms of EU membership. I don’t see a version of Canada as a realistic option as the EU will not be prepared to start renegotiations from scratch and if the Prime Minister’s deal has been rejected, a Canada deal (which offers even less) is likely to end up with the same defeat. It will just be a waste of time and prolong the conflict.
Ultimately, Parliament needs to decide whether it is prepared to intervene to direct the course of passage itself or whether it needs to put it back to the people in a second referendum. That’s a difficult risk management exercise—both options are constitutionally valid, but either could produce divisive side-effects in future if certain parts of the electorate feel aggrieved with the overall result.
Some MPs may understandably feel that a second referendum is a necessary part of the long-term healing process even if it produces short term pain and discord. Alternatively, if politicians can come together and find consensus then the public may accept that as democracy and parliamentary sovereignty being seen to work in practice.