No-Deal, Deal, Referendum, Rescind - Ben Patterson

European Movement “1066” branch, Saturday 28 Sept. 2019

Robertsbridge Village Hall

One of my original suggestions for the title of this session was “What is democracy?” A correct answer is important in view of the persistent Brexiteer argument that Remainers are “anti-democratic”, opposing the “will of the people”. It is worth remembering that, though 17.4 million voted “leave” in 2016, that was only 36% of the electorate, and only 26% of the population, “the people”.

We should also note, with de Tocqueville and John Stuart Mill, that “democracy” does not mean the “dictatorship of the majority”, still less of a transient one. All people, individuals and minorities, have rights, which are protected through their representatives in a parliamentary system. That is why Boris Johnson’s current tactic, to foment a clash between “parliament” and “people”, is so dangerous.

There is also an element of irony or black humour in the current situation. I spent some time looking back at the literature put out by the “leave” campaign during the referendum. A lot of it was about “taking control of our own laws”, bringing back power from “Brussels” to the British Parliament and British Courts. Now, the British Parliament and the British Courts are “enemies” and “traitors”!

It is also bizarre that, at the Supreme Court’s hearing, the government argued that its decision to prorogue Parliament had nothing at all to do with Brexit, just the Queen’s speech and the party conferences; and then, when the case went against them, argued that the Court had interfered with the government’s Brexit policy! We should, however, be careful of accusing the PM of having broken the law before the judgement. The pro-remain Secretary of State for Health, Matt Hancock, recently argued persuasively on the World at One that the law was not clear until the Court had ruled.

Even odder, though, is the Prime Minister’s statement that he would obey the law (that is, the “Benn Act”, designed to prevent a no-deal exit on October 31st) and yet that we would unequivocally leave the EU on that date. Several commentators have described the statement as self-contradictory. Nevertheless, there are a number of ways in which it could turn out to be true.

First, of course, we could leave on 31st. October with a deal. Huw Merriman has told me that he thinks the May deal would now pass the Commons, and there is a faint chance of an amended deal being agreed by the EU. There are, however, only three or so weeks for this to happen.

Secondly, there is the possibility, raised by Sir John Major, that the Benn Act could be legally circumvented, perhaps by the use of an Order in Council.

Thirdly, the PM could sign the request for an Article 50 extension, but reach an agreement to have it vetoed in the EU Council by, say, Hungary.

Fourthly, of course, he could just refuse to act, break the law, and defy the Courts to do anything about it.

Fifthly, since it is a matter of “do or die”, he might decide to die (i.e. resign) and make way for a “government of national unity” and a caretaker PM. I can’t see him doing it.

But, finally, Parliament might at last agree to table a motion of censure and form such a government, or minority Labour Government with the specific remit to write the postponement letter. There are rumours that this may be about to happen.

There is, in fact, a spectrum of options for the immediate and medium-term future. I will start with the two extreme ends of this spectrum.

 “No deal”

 “No deal” does not mean “No deals”. Even if the break is chaotic and acrimonious, there will have to be piecemeal agreements on such things as our payment into the EU Budget, and elements of the Single Market like transport and data protection. Some of these have already been reached. The difference will be that we shall have the disadvantage of negotiating as a third country, rather than as a Member State

And there will still be the Irish question. The Government has apparently tabled some proposals to make the “backstop” unnecessary, which may be on the lines recently suggested by the Open Europe think-tank:

  1. A “Stormont Lock”, which would give Northern Ireland a role in managing further divergence from Great Britain.
  2. The enhancement of north-south institutions to supervise the development of “alternative arrangements” to avoid a backstop.
  3. An international mediator, involving US or Commonwealth countries as put forward by the Good Friday Agreement.
  4. Consulting WTO for trade disputes.
  5. Re-establishment of the British-Irish Inter-Governmental Conference (BIIC) to monitor east-west trade.

Rescind Article 50

At the other end of the spectrum is the policy, which we have already discussed, of rescinding our notification to leave the EU. The European Court has already ruled that we have the right to do this; and it is, of course, the optimum solution.

To do it without a referendum or a large supporting majority in Parliament after a General Election has dangers, however. The threat of civil unrest by Brexit supporters is not an idle one – there are a lot of nasty, violent people out there. It would be best to come at the end of negotiations revealing the fact that no trade deal, association or other arrangement is as good as staying in the EU.

“No deal” + General Election

One quite possible outcome is a “crash-out” Brexit on 31st. October, followed by a General Election. If this election produced a majority either for Remain, or for a negotiated exit, would the EU agree to turn back the clock and agree to negotiate a deal which kept us as a Member State without an application to re-join? This would be breaking EU law, but stranger things have happened.


Also still possible is a deal before 31st. October, presumably the May deal with or without the backstop. There would then be the two-year transitional period during which we should still be in both the Customs Union and the Single Market.

Deal plus referendum

If there is such a deal, the question then arises of whether it should be put to a new referendum. This appears to be the clear policy of the Labour Party, and also, of course, of the European Movement and the “People’s Vote” campaign. I have to say that I have always been a bit sceptical of this idea. The problem comes when it comes to devising the question on the ballot paper and the method of counting. It seems to be assumed that it will be a choice between the Deal and Remain. But this is likely to stir up violent resistance from many of those who voted Leave in 2016. If there are three options, however, the method of counting becomes important. Simulations have shown that a “1,2,3” choice always results in Deal winning as a result of gaining both Leave and Remain second choices.

Deal plus General Election

The alternative option, of course, is to settle the matter by a General Election in November or December. The Conservative Party, presumably, would support the deal (apart, perhaps, from a few residual Spartans), and claim that the Brexit Party was now redundant. At the same time the Party would hope that the Labour and Liberal Democrats would split the opposition vote, resulting in a large Conservative majority. This is clearly the Government’s and CCHQ’s policy.

Contrariwise, the Opposition parties would hope that the deal would be sufficiently unattractive to Leave voters as to result in large-scale defections from the Conservative Party to the Brexit Party, resulting in a large non-Conservative majority.

There is also the possibility of widespread tactical voting by either side, with unpredictable results.

Extension of Article 50 + General Election

Finally, if no deal with the EU has been agreed and adopted by Parliament by 19th. October, the Prime Minister is required by the European Union (Withdrawal) (No. 2) Act 2019 (the “Benn Act”) to request an extension of the Article 50 procedure until the end of January next year. Johnson may try to circumvent the Act or refuse to comply with it (see earlier). But it is the law.

It is hardly surprising, though, that the Government describes the law as a “Surrender Act”. There is some evidence that the EU’s negotiators now believe that they only have to maintain their position, and the Johnson Government will be replaced. There is also overwhelming evidence that a postponement of Brexit will produce a massive boost for the Brexit Party, at the expense of the Conservatives.

What strategy after/if we have left?

If Brexit occurs, either on October 31st. this year or some time next year, it will be necessary to decide what the UK’s future relationship with the EU should be. Many of the options have already been exhaustively discussed: WTO Rules only; Canada++; EFTA; EEA; Norway+, etc. The Labour Party appears to be in favour of membership of both the Customs Union and the Single Market. The Conservative Party, (in so far as there is a central position) is probably aiming for something like the Swiss option: EFTA membership with ad hoc sectoral deals with the EU.

Finally there is always the option of re-joining the EU. Under Article 50:

 “If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”


So one thing seems clear. Whatever happens on October 31st. or January 31st., in a new referendum or a General Election, we are still a very long way from closure.



Ben Patterson

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