By Brendan Donnelly
Director, The Federal Trust


27th March 2018


Last week was a difficult period for those inclined to argue that the Labour Party is or may become an effective political vehicle for opposition to Brexit. To the applause of John Redwood, Jeremy Corbyn dismissed Owen Smith from the Shadow Cabinet for suggesting that the Brexit terms negotiated by Mrs May might need to be submitted to a referendum; the Party’s Brexit spokesman Sir Keir Starmer told the Guardian that he saw no realistic prospect of preventing Brexit from taking place in 2019; and the same Sir Keir truckled to the most vulgar forms of Eurosceptic nativism by urging that future British passports should be made by British producers, whatever the economic cost. The Labour Party seemed finally to be resolving its studied ambiguity in European policy by a more or less grudging acceptance of Brexit, with occasional attempts to outbid the Conservative government on its nationalist flank.

Perhaps because he was aware that this new clarity was unattractive to many potential and actual Labour supporters, Sir Keir made yesterday an important speech, at the very least reasserting the ambiguity of current Labour policy on Europe and possibly implying considerably more. In his speech to electrical engineers in Birmingham, Sir Keir made it clear that the Labour Party is still hopeful of being able to vote down, in alliance with other Parliamentary parties and a handful of Conservative rebels, any bill on the terms for Brexit that Mrs May is likely to put to the House of Commons later this year. The expression of this hope is not new, but in Birmingham Sir Keir went further, contradicting the apparently plausible claim of the government and its supporters that rejection of Mrs May’s terms for Brexit would simply lead to the UK’s automatically leaving the EU on 29th March, 2019. In the event of such a rejection, Sir Keir believes that Parliament should not allow itself to be bound by the mechanistic deadlines of the Article 50 process.  In his own words, “it would then be for Parliament to say what happens next.” More precisely, the government should not be allowed by Parliament simply to do nothing and passively await the arrival of 29th March, 2019, when by the normal operation of the Lisbon Treaty the UK will leave the European Union.

It is new and welcome that Sir Keir has now drawn attention to the need for Parliament, if it does vote down the government’s terms for Brexit, to have a clear idea of how it wishes to proceed thereafter. There is force in the Eurosceptic argument that the Brexit process, triggered by Mrs May in 2017, now has a legal momentum of its own that cannot simply be ignored. Sir Keir’s proposal and that of the Labour Party is however the disappointing one that Parliament should compel the government to “go back to the negotiating table and secure a better deal that works for Britain.”  It is a great pity that having made a worthwhile advance in clarifying his overall political analysis of the Brexit process, Sir Keir should then deliver himself of such a cloudy and misleading utterance. It is fantasy to imagine that Parliament can by an act of its own political will instruct the Conservative government of the day to obtain a “better deal” for the UK in further negotiations at the end of 2018 and in the first months of 2019. The EU has its own view of the appropriate balance of rights and responsibilities it will demand of third countries such as the UK once it has left the Union.  The terms of the Brexit agreement presented to Parliament in the autumn of 2018 will faithfully reflect the EU’s preferences, preferences that the UK can do little to alter, given that the EU is much the stronger partner in the Brexit negotiations. Parliamentary instructions from Westminster that British government should procure a more advantageous settlement will cut little ice in national capitals or the European institutions.


The options for Parliament

In reality, Parliament has three viable options for proceeding after a negative vote on the Brexit terms. It can withdraw the Article 50 notification altogether; it can seek to restructure the Brexit negotiations in a way that goes well beyond the populist mantra of seeking a “better deal”; or it can hold a further referendum on the proposed Brexit terms. In his speech yesterday, Sir Keir reiterated the Labour Party’s commitment to “respecting” the result of the referendum in 2016. It will have been a disappointment to many in his Party that he made no reference to increasing doubts about the legitimacy and even legality of many aspects of that referendum. It seems however extremely unlikely that the necessary support could be mobilized in the Labour Party towards the end of this year simply to reverse the Brexit process by withdrawing the Article 50 notification.

There is however an element of Sir Keir’s speech which might be seen as laying the foundations for a restructuring of the whole Brexit negotiation process, the second option for Parliament later this year after a vote against the Brexit terms of the Conservative government.   Particularly in the context of the controversy surrounding the Irish border, Sir Keir stressed Labour’s commitment to maintaining British membership of a Customs Union with the EU and strongly hinted that British withdrawal from the Customs Union might be a ground for Labour to oppose the Brexit terms presented to Parliament. It would be logically and politically open to the Labour Party in the autumn of this year to press for an instruction to be given to the British government not merely generally to renegotiate the Brexit terms, but specifically to incorporate into the divorce agreement British membership of the Customs Union. This change of British stance would certainly be congenial to our European partners. A consensual extension of the Article 50 negotiating period might well become a realistic possibility in those circumstances.

It must be doubted however whether a Conservative government would ever be willing to be part of a Customs Union with the European Union. It is an essential part of the Eurosceptic case in the United Kingdom that unshackled from the European Customs Union the United Kingdom will be free to trade in future more successfully with non-European countries. This conviction is one implanted in the psyche of many who hold it at a level impervious to rational contradiction or even discussion. Mrs May’s government has been forced to make in the Brexit negotiations many humiliating concessions. Acceptance of a mandate to remain in the Customs Union would however strike at the very core of the radical Eurosceptic beliefs well-represented among Conservative MPs and dominant among the Party’s membership. Guaranteeing the rights of EU citizens, continuing contributions to the EU budget and the transition period are all propositions which the European Research Group and its sympathizers have been willing reluctantly to accept. Remaining in the Customs Union would certainly be a bridge too far for the Conservative Party as a whole.

There are those in the Labour Party who hope that voting down the Conservative government’s Brexit proposals will inevitably lead to a General Election. This may well be a miscalculation. There are a number of Conservative backbenchers sympathetic to the concept of remaining in the Customs Union, but few if any of them would be prepared to put this cause above that of party loyalty. No Conservative who voted on a European issue in a way leading to the fall of a Conservative government could hope to stand as a Conservative in the succeeding General Election. Only a few Conservative MPs believe it is more important for the UK to remain in the Customs Union than to prevent Jeremy Corbyn from becoming Prime Minister. In any vote of confidence relating to European issues, even if the immediate controversy is the Customs Union, Mrs May would be overwhelmingly likely to retain her majority in the House of Commons. Conservative strategists have good reason for believing that they can weather attempts to bring down their government through a direct assault by Labour on its European policy.

A more insidious, but perhaps more successful line of attack for Labour would be that of the last mentioned option, that of a referendum on the proposed Brexit terms. It would be doubtful whether Mrs May’s government could survive a popular vote against the result of her European negotiations. It would however be much easier for Conservative MPs to support a Labour call for such a referendum than unambiguously to bring about the destruction of their own government. There already appears a crystallization of opinion among the different anti-Brexit groups inside and outside Parliament that the result of the referendum in 2016 can only be reversed by another referendum held on the basis of more precise and realistic options for British withdrawal from the European Union. It may well be that Sir Keir’s speech in Birmingham prefigures a similar emerging consensus among Parliamentarians hostile to Brexit that the only politically sustainable way of effectively opposing Brexit in the autumn of this year will be a further referendum, for which a Parliamentary majority may well exist, or at least be capable of construction.


The way forward

It is of course by no means certain that Mrs May will have any agreement to put before Parliament in the autumn of this year. The question of the inner Irish border remains in particular unsettled and both the Irish government and other European national governments are as yet far from satisfied on this issue. In the absence of any Brexit agreement, all the analysis set out above will continue to apply, perhaps in reinforced dimensions. However much difficulty and embarrassment the Labour Party can cause the Conservative government on its European policy, there are few if any Conservative or DUP MPs who will be willing to topple a Conservative administration in order to smooth Jeremy Corbyn’s path to the Premiership. Sir Keir’s latest insight that it is not enough for Parliament to vote against the Conservative Brexit terms without being prepared to take further succeeding steps is welcome indeed. He and the Labour Party seem however to have some way to go before they arrive at a convincing proposal for what these further steps might be. The Deputy Leader of the Labour Party, Tom Watson, has described another European referendum as “highly, highly unlikely.” It is a bold, perhaps foolhardy man who can say what is unlikely, what is possible and what is inevitable in the gyrations of the Brexit whirligig.