Is the Labour Party about to deliver a ‘Tory Brexit’?

Used under Creative Commons Licence: credits, Annika Haas and Rwendland

In terms of making conclusions about voters’ feelings about national politics, British local election results are infamous for being — on most levels — somewhat meaningless. And yet that never stops anyone who follows politics from scouring the results for signs of change in national mood. Labour’s gains in the local contests of 1995 and 1996 signalled their landslide general election victory in 1997. Meanwhile, despite suffering heavy losses in the 2017 local elections, the Labour party went on to achieve one of the largest swings in British political history at the snap General Election just a month later, taking seats that had until that point been solidly Conservative, such as Canterbury and Kensington.

In the wake of the local elections held across England, Britain’s two main political parties: Labour and the Conservatives each scored under 30% of the vote — for only the second time in recent political history.

Both parties seem to agree on what they believe are the reasons why: apparently voters just want them to ‘get on with delivering Brexit’. As the final results were coming in, the Labour leader Jeremy Corbyn said it was ‘very clear’ that ‘a deal needs to be done’. Prime Minister Theresa May ‘welcomed’ Corbyn’s comments that he thought the message from voters was that the two parties should be working together to ‘deliver a deal’ on Brexit.

I have no idea what the local election results meant — and I doubt Jeremy Corbyn or Theresa May do either- but if the message was a howl from the pubic to ‘get on with delivering Brexit’, then they had an odd way of showing it. The only parties that made gains on Thursday the Liberal Democrats and the Greens: the only two contenders that are fully committed to a second referendum and ‘Remain’. It was quite a remarkable night for both these parties, and independents too. The Liberal Democrats were starting from a ‘low base’ and their gains were mainly recoveries from relentless punishments after forming a coalition with the Conservatives between 2010–2015, but there again the Labour party were starting from a pretty low base too after Ed Miliband’s losses in 2015. The Greens only stood candidates in about 30% of seats but still managed to triple their representation in cities and counties with a NET gain of 194 councillors.

It seems that Jeremy Corbyn’s conclusion was drawn from Labour’s losses being worst in ‘leave’ voting areas: confirmation for senior party figures that they should veer even further away from supporting a second referendum — the so-called ‘People’s Vote’. A referendum on Theresa May’s Brexit deal — which has been rejected by MPs on three occasions now — is being advocated by many across the political spectrum as the only way to break the Parliamentary impasse. Meanwhile, in an argument that really manages to stick, others have declared a second referendum as a ‘you got it wrong try again’ betrayal of democracy and a betrayal of the increasingly nationalistically-hyped Brexit project.

The problem with the Labour Party’s analysis of the local election results is that their vote-share at best flatlined in ‘Remain’ areas too, and whilst these losses were far less than in ‘Leave’ areas, it was hardly a sign of a ringing endorsement from this voter-group. How do Labour know that their loss of support in ‘leave’ areas was due to their flirtation with a second referendum and not their chit-chats with the government to try and get Theresa May’s Brexit deal over the line? Afterall, her deal is deeply unpopular amongst ‘remainers’ and ‘leavers’ alike. If the mood in the country is to ‘get on and deliver Brexit’ then why on earth did the ultra-‘remain’ Liberal Democrats make such huge gains against the Conservatives? On the other hand, Nigel Farage’s new Brexit Party wasn’t standing candidates, so did ‘leave’ voters just stay at home once they realised that the only way to register their support for Brexit in its purest form was to vote for the openly racist and increasingly fringe UKIP (which also lost seats)? What about the fact that these were not UK-wide elections, and only around 30% of the electorate turned out? If overwhelmingly ‘remain’ Scotland had been in the mix would Labour’s vote have held steady there? If overwhelmingly ‘remain’ London had been holding local elections, how would Labour have done?

The only thing that’s clear to me is that these election results are anything but clear. The only thing that’s for sure is that we are far from sure that the results mean the British people want Labour and the Conservatives to ‘get on and deliver Brexit’. In fact, polling evidence is increasingly suggesting that Brexit is no longer the ‘will of the British People’.

There are worrying signs that, spooked by the local election results, the Labour Party are close to striking a deal with the Conservatives on a Brexit deal that supposedly delivers the benefits of a Customs Union and ensures ‘dynamic alignment’ with E.U. employment rights.

How serious either the Labour opposition or Conservative government are about these negotiations remains to be seen. I have to say, I remain sceptical. Theresa May knows that she will tear her party apart if she commits to a Customs Union (or one in all but name) with the E.U and all evidence to-date suggests that she cares far more about keeping her party together than she does about the good of the country. Meanwhile, with the government on the ropes, why on Earth would Labour take shared ownership of — and therefore share the long-term blame for — a deeply unpopular Brexit deal which will almost certainly damage jobs and livelihoods?

And yet, Labour have been locked in talks with the government for weeks now, supposedly trying to find a way of securing changes to May’s Brexit deal so that they can break the impasse in parliament.

Is there a way for Labour to twist, turn and contort this grubby little deal into a ‘job’s first’ Labour Brexit?

Of course, as the E.U. has said on many occasions, the legally-binding part of ‘the deal’ (the Withdrawal Agreement, which essentially agrees the ‘divorce’ arrangements) cannot be amended, however the accompanying political declaration (which sets out the future trading relationship between the E.U. and U.K.) can be. This latter document, however, is not legally binding, meaning that even if Labour manage to have amendments made to this document, a future hard-Brexit Prime Minister could just ignore it.

Therefore, the main discussion between the parties has been about how any changes to negotiating positions secured by Labour can be written into British law. This has led to suggestions that — if a deal is struck between government and opposition — such legally binding guarantees could be made by essentially ‘skipping’ the ‘meaningful vote’ (the parliamentary motion to pass the Brexit deal that has been defeated three times now) and go straight to the accompanying legislation (the ‘Withdrawal Agreement Bill’ or ‘WAB’) that enshrines the agreement into law. The theory is that this could be amended to include binding negotiating positions, such as seeking a Customs Union — an anathema to many Conservative MPs. This would be designed to give the opposition confidence that the high likelihood of Theresa May being replaced by a Brexiteer Conservative prime minister would nevertheless guarantee any compromises reached.

However, this strategy is fraught with danger, and in my view, should Labour go down this path then Jeremy Corbyn may never be forgiven by the Left for aiding and abetting what turns out to be a damaging, deregulating, job-endangering Brexit; a Brexit that makes the divided political landscape of today seem like pure harmony in comparison to the toxicity that would come.

I believe there would be three key problems with Labour attempting to amend the current deal — even with accompanying legal guarantees.

Firstly, any legislative safeguards on the ‘negotiating position’ for the future trading arrangement could be undone by a future Conservative ‘Brexiteer’ prime minister if they have a parliamentary majority to do so. Neither are beyond the realms of possibility. When Theresa May finally departs (a matter now of ‘when’ not ‘if’) a Prime Minister Boris Johnson — or someone equally as pro-hard Brexit — is likely to be elected to succeed her by the overwhelmingly hard-line Tory membership. Before he was sacked for daring to suggest to the government that Brexit would be quite a hard thing to do, the former UK ambassador to the EU, Ivan Rogers, warned that a new deal with the E.U could take up to a decade: time for perhaps at least a couple of general elections to deliver a hard-line Brexit parliament, especially with the brand new ‘Brexit party’ already on the rise.

The second problem (that I checked with a law professor but I haven’t seen mentioned anywhere else) is that even if — say — Prime Minister Boris Johnson fails to repeal these legally binding negotiating positions, they are nevertheless nothing more than negotiating positions. Whilst it is possible that Parliament may be able to have some control over what the ongoing negotiating tactics are, it nevertheless makes it far from certain that PM Johnson couldn’t just say: “well I tried negotiating a customs union — as required to by law — but it didn’t work out” and then dive the country headlong into a hard-Brexit of deregulation, further privatisation and desperate trade deals with Trump’s U.S.A.

The third problem is that you’d be forgiven for thinking that if Labour and the Conservatives strike a compromise on the Brexit deal, that this would be the end of the Brexit story. In the words of Labour’s John McDonnell, they’d have delivered on the electorate’s instruction of “Brexit: sort it”.

But this is far from the case.

The U.K. cannot leave the E.U in an orderly manner until the Withdrawal Agreement Bill — the primary legislation enshrining the Brexit divorce agreement and political declaration into U.K. law — is passed.

Achieving this before May’s European parliamentary elections would be near-impossible. Doing so before the next ‘cliff edge’ Brexit departure date (31 October 2019), where the UK will crash out of the bloc (if the legislation hasn’t been passed or any further extensions to Article 50 secured) would be challenging, especially when considering the long summer parliamentary recess. The successful so-called Cooper-Letwin Bill, which forced the government to seek an extension to Article 50 at the end of March, therefore rejecting a ‘no deal’ departure from the bloc will not provide any protection at the end of October because the bill was designed for that specific time and circumstances — and would no longer carry any weight. If Prime Minister Johnson had the parliamentary majority that allowed him to, he could tip the country into a disastrous deregulating, disaster-capitalist no-deal Brexit with ease.

For these reasons, no matter what legal ‘guarantees’ the Labour Party manages to secure, by working with the government to introduce the Withdrawal Agreement Bill into Parliament, they could risk and share the blame for these unintended consequences.

Even if talks between Labour and the government flounder (still the most likely outcome in my view), I believe that failing to make both the ‘leave’ and ‘remain’-supporting arguments for a second referendum, and the possible shunning of the prospect in the wake of the local election results, could also make the Labour Party unwitting enablers of a Tory hard-Brexit.

On Tuesday, a much-awaited decision by the Labour Party’s NEC (National Executive Committee) about what commitments would be made to a second referendum in their manifesto for the European Elections at the end of the month, emerged.

The decision — whilst disappointing — was hardly a surprise. The meeting had concluded that a second referendum would remain as an option ‘on the table’ should it not be possible to force a general election, or get the ‘necessary changes to the government’s deal’: something that they said was ‘fully in line’ with the motion passed at the Labour party conference in October last year.

The problem is that if you actually read the Labour Party conference motion, you’ll notice that there is no reference — no reference whatsoever — to the Labour party sitting down with the government and trying to negotiate a Brexit deal. In amongst all the rhetoric (one thing about Labour Party conference motions: they sure like the sound of their own voice), there are only two concrete ‘actions’ mentioned.

The first is to try and win a no-confidence vote in the government and force a general election. Jeremy Corbyn tried this in January and failed. The second action is to back a second referendum, or a ‘public vote’ as the motion calls it. It even elaborates:

“If the Government is confident in negotiating a deal that working people, our economy and communities will benefit from they should not be afraid to put that deal to the public.”

Supporters of the Labour leadership’s position might argue that ‘all options on the table’ could legitimately include negotiations with government, meaning that the opposition’s tactics are in line with conference policy. But isn’t it a bit odd that ‘all options on the table’ includes something that isn’t mentioned at all in the motion… but doesn’t unequivocally include something that explicitly is?

And here’s the rub. If Labour pull out of government talks, if no-confidence votes continue to fail, but they continually refuse to unequivocally back and make an argument for a second referendum, then what exactly is their alternative plan?

I have criticised the ‘People’s Vote’ campaign before. Their opponents’ portrayal of them as a ‘you got it wrong try again’ remainer-plot is pretty effective, because it’s sort of true.

In my view, for a while now Labour have had a fantastic opportunity to take ownership of the ‘People’s Vote’ idea but turn it on its head: if only they’d agree that a second referendum is not only the way to achieve the general election they cherish but also the best chance of securing a ‘Labour Brexit’.

A second referendum provides a solution, not just to ‘remainers’ but to ‘leavers’ too; a strategy that is repeatedly endorsed by Paul Mason: a leading commentator on the Labour-left.

In my version of the plan, Labour’s narrative would go something like this:

1. In the wake of the referendum, the Conservative government assured us that by now, not only would we have left the E.U. but we’d also have had a comprehensive trade agreement in place. They have not only singularly failed on both fronts, but they have even failed to roll over existing trade deals we had with other countries through our E.U membership.

2. The reasons they have failed isn’t because Labour is ‘blocking Brexit’ but because the Conservatives can’t even decide amongst themselves what kind of Brexit they want, with the hard-line Brexiteers in the party voting against Theresa May’s deal because — to their mind — her form of Brexit doesn’t go far enough.

3. So why should the Labour Party step in to bail them out, especially as it’s only recently, in an act of pure desperation and after two extensions to Article 50, that the government have sat down for serious talks with the opposition?

4. As not only parliament, but the ruling Conservative Party, can’t decide amongst themselves what type of Brexit we should have — who should decide?

5. Here is what a Labour Brexit looks like. We want to enshrine our ‘jobs-first’ negotiating positions for the future relationship with the E.U. into law, but as there are inherent dangers in this approach (why not check out Will’s blog to find out what they are!), we also want to give you — the people — a chance to confirm this strategy through a referendum.

6. As whatever ‘Brexit deal’ the Labour party secures will be the only one on the table, and as a No-Deal Brexit would be utterly disastrous, the other option on the ballot will be ‘Remain’. If you opt for remain and elect a Labour government at the next general election, here are the ways in which we would seek to reform the E.U. to increase its accountability and bring its decision-making processes closer to voters.

7. During the referendum campaign, the Labour Party will remain institutionally neutral, allowing its MPs to campaign to confirm the deal or remain in the E.U. As both options are immediately legally enforceable, whatever the result, the people will have finally been given a real choice and perhaps finally — as a country — we will have a chance of moving on.

Backing a second referendum could help the Labour Party to trigger a general election and get rid of this appalling Tory government once and for all. The Fixed Term Parliaments Act is turning out to be a bit of a pain in the ass. Without a parliamentary majority to trigger one, a general election isn’t happening. Labour have tried and failed to win a ‘no confidence’ vote in the government already. How could they persuade opposition parties like Change UK, the Lib Dems and the handful of Tory MPs needed to win one, to vote with them? Well, considering Change UK, the Lib Dems and Tories like Dominic Grieve, Sam Gyimah and Joe Johnson are in favour of a second referendum, pitching the above plan to them in return for their support might be a good start?

Backing a second referendum is the only way to secure a Labour-Brexit. Even if Labour secures legally binding changes to the government’s Brexit deal, the dangers I describe above mean that they’d need as many safeguards — as many ‘firewalls’ — as possible to protect their Brexit plan. If there was a hard-right change in government half way through negotiations, the Labour-principles of the negotiation would need to have as much protection as possible. Legally-binding negotiating positions within the WAB would be one of these ‘firewalls’, but they alone are not enough. A binding referendum on these negotiating positions — along the lines of my plan above — would provide an extra level of security; an extra ‘firewall’ against a hard Tory-Brexit. Of course, this wouldn’t be failsafe either, which is all the more reason for the public to have a chance to confirm or reject the plan.

The country is sick to death of Brexit. We want out — if not of Europe — then of the never-ending debate. Knife crime, our NHS, the nation’s mental health and the never-ending rise in food-bank use have been forgotten by our parliamentarians as Brexit dominates everything. We are desperate to move on and deal with the things that really matter.

The moment the Labour leadership sat down and started negotiating with the government, was the moment that the party could no longer wash their hands of the mess the Tories have got us into. Labour are the official opposition. Their job is to offer us hope. And the only way they can do that is by offering a plausible and concrete alternative plan.

The ‘constructive ambiguity’ that served them so well in the 2017 snap general election has turned toxic and is no longer fit for purpose. Until the Labour Party leadership stop equivocating and running scared from a second referendum, their irrelevance will become dangerous. They must enact the will of the membership, recognise and start making the argument that — whether government negotiations succeed or fail — a second referendum is the only way to give leavers and remainers the chance to make the real choice that neither government nor parliament is willing to make.

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