Labour’s Brexit strategy: three scenarios

The Chequers statement was the first substantial step by May’s government towards complete and welcome capitulation on its earlier moon-on-a-stick demands. The White Paper due to be released will firm up this capitulation.

The statement was a confused and contradictory mush, and the ensuing White Paper will almost certainly be rejected as such by the EU27 as and when Barnier and others feel fit, but it does at least point towards what May will try to sell to her party come October, namely acceptance of all Single Market conditions, including current Freedom of Movement provisions, albeit under a different name.

In other words, the Tories will adopt the same strategy of selling BRINO or near-BRINO as Labour adopted under Starmer’s guidance some time ago, and as I set out in more detail here.

In particular, the wording in the Chequers’ Statement about the ‘mobility framework’, under which people from the EU27 will be able to “apply for work and study”, will be subtly shifted so that the only conditions that will need meeting will be those which are already allowed under EC/2004/38, and already in place in many other states. (Spain, for example, requires registration with the Central Register of Foreigners, backed by a range of proofs of employment, health insurance and financial means.)

The fact that the UK could have imposed all these measures years ago will be quietly elided, potentially with the help of a compliant media, whose ignorance about the limited nature of Freedom of Movement continues to amaze.

So where does this Tory shift leave Labour, and what should Labour’s next move be?

The precise Labour strategy will, rightly , depend on the precise circumstances as they evolve over then next few months; here I make my recommendations as they might be applied to three different and necessarily broad scenarios:

a) An early election, after which Labour has time to go to the negotiation table, probably in the context of being a minority government with SNP support;

b) May hanging on, and seeking to sell the further compromises needed to get a deal in October 2018; and

c) May being removed, and replaced by a Brexit hard liner or their stooge .

a) An early election

Obviously, the main hope is that May will suffer such a backlash from those on her side who feel she has ‘betrayed’ them — Davis and Johnson may has triggered the process — and that she will be deposed and the government collapse.

The most likely route to this is via withdrawal of DUP support, and the news that the DUP will back a hard Brexiteer amendment effectively seeking the annulment of the backstop already agreed between May and the EU27 does increase this possibility.

In the event of an early election, however it might come about, Labour will need to clarify its base position; the ‘creative ambiguity’ that has served it reasonably well so far will not hold when there is the real prospect of forming a government.

At the heart of this clarification will need to be confident presentation on three manifesto commitments:

i) That ‘Freedom of Movement will end’ set out in the 2017 manifesto was always simply a factual statement about what happens when we leave the EU, and that a bilateral UK/EU agreement will meet the conditions of worker/family freedom to come to the UK and take work, while allowing for the development of administrative procedures along the lines of those operated in Spain (not just as a control measure but also to ensure that local authorities etc. have the information they need to offer appropriate support for migrants, not least against residual exploitation by less scrupulous employers).

ii) That a new Labour government will both implement and go beyond the basic requirements of the May 29th 2018 EU legislation on protections for workers against ‘cross-border’ exploitation and wage undercutting, by requiring states to implement, within two years, their own measures.

iii) That a new Labour government will, as part of its negotiation on the new bilateral Single Market deal with the EU, seek some exemption, or at least clarity of wording, on the provision of State Aid. Limits on State Aid will be part of the new Single Market conditions, just as they are for members of the EEA and while it is quite possible still to deliver State Aid via the ‘social’ and environmental exemptions, any success in bringing greater upfront clarity to those freedoms will be seen as a an added value win for Labour, especially in the context of its ex-industrial area voter bases but more broadly in its mission on inequality. It will be an internal nod to the ‘Lexiters’ but, more importantly perhaps, help Labour distinguish its final pre-election pitch from that of the Tories, who may well be facing the election precisely because its leadership has “caved in” on the four freedom conditions set by the EU. Having a negotiating position very clearly more socialist on the EU from the one which has forced the government’s collapse will be important tactically during the campaign.

In summary, these specific manifesto commitments make a clear base for a Customs Union & Single Market-equivalent Brexit, also known as Brexit in Name Only, while also tackling in a distinctly pro-EU way the wage-undercutting issue which has operated as a proxy for broader anti-EU feeling in many Brexit-voting constituencies (“look, the EU can do good things for workers…..”), and providing a specific socialist tinge to Labour’s ‘jobs first’ Brexit, now given substance.

It will appeal to more moderate #fbpe types, to voters in the ‘heartlands’, and to cosmopolitan liberals concerned principally about Freedom of Movement.

As such, it should be enough to make Labour become the largest party in an early general election, especially with the electoral maths pointing towards the Tories losing some seats to the LibDems, and with that prospect enhanced if UKIP gets an extended bounce in light of the post-Chequers Tory betrayal narrative.

But there are two more important parts of the jigsaw of this scenario.

First, the election outcome may well be Labour as largest party but without an overall majority — that’s an ineluctable feature of the SNP surge of 2015. No main party ever goes into an election saying anything other than they are campaigning for an overall majority, so Labour will not be in a position pre-election to say what deal might be done, but afterwards there is likely to be a demand by the SNP (and possibly LibDems) around Brexit.

Second, and oddly related, is that Labour is in a position, pre-election, to say that, if it does win, it needs time to negotiate with Brussels; it can quite validly claim that the Tories have wasted 20-odd months, and that it cannot be expected to strike a socialist-tinged deal with Brussels overnight.

So part of the overall election pitch should be that, while wanting to respect the referendum result, a new Labour government will reserve the right to seek a delay on the current March 2019 exit date. If this delay were then to become a ‘Remain for now’, or a second referendum, via a coalition/confidence and supply deal with the SNP/LibDems, then so be it…….

Of course, a delay may not be possible. The EU, with its own parliamentary elections in mind, as well as the need to prepare for the 2020–2026 budget period with a degree of certainty, will be entitled to refuse any such approach from a new government, not least as the EU might feel the UK under a new untested government has little choice but to seek a full Remain plea, in a way which sees it properly humbled; it is not for the EU to distinguish between the motives of parties and, as I set out here, it may be better that The EU facilitates for the UK population a period of collective ownership of its own disgraceful behaviour.

But this is perhaps a sub-scenario too far at this stage, and the important point for now is that in its election planning Labour should prepare for the need to deal with other parties by creating a case for an approach to Brussels which is consistent both with its own distinctively socialist negotiation objectives and with a possible deal for non-exit of some kind.

Of course, there may be no election; I am not as confident as Paul Mason that May’s government will collapse. So I turn to what Labour’s strategy might be in the case of two other, necessarily broad, scenarios.

b) A May government limps on

It is by no means unlikely that May’s government will limp on till October and, and that when all the concessions have been made, she will be able to cobble together enough support in the House to get it through, allowing a further limp on towards Exit Day.

Labour will then potentially be in a position of being seen to support more or less the same kind of Customs Union/Single Market deal as the Tories; this will be difficult to navigate unless at least three things are done by Labour to differentiate the two parties’ positions:

i) Firm up the position on how exactly Labour can achieve a Customs Union & Single Market bilateral deal via the Freedom of Movement manoeuvres set out above, while taking the opportunity to hammer Cameron’s and May’s (as Home Secretary) initial decision to call a referendum, in which the debate was largely about ‘controlling our borders’, without even considering how measures set out in EC/2004/38 might have used instead. The narrative should be about the Tory failure to engage in detail, tarring May with the same brush as used to tar Cameron, Johnson and Davis. As time moves on, Labour should no longer be seen to be triangulating on ‘immigration’ (and part of the strategy to change this perception should be to clarify that free movement under the treaties is not actually‘immigration’ at all);

ii) Develop the ‘socialist tinge’ to Labour’s Brexit position by moving on from the somewhat discredited ‘jobs first’ trope to the more specific statement that in power Labour would see the flexibility on State Aid (and potentially procurement rules), as set out above, thus differentiating from the Tories, who have never so much as mentioned this factor in job safeguarding and development;

iii) Develop a firm position, beyond Tory platitudes, on post-Brexit military and security cooperation with the EU, given the potential for rapid change in threat level, given Russian hostility and US administrative incoherence and exponential volatility under Trump.

With these elements of differentiation in hand, Labour will be in a position, by mid/late October, to move the argument on in a potentially game-changing way, for Corbyn will be able to say something like the following:

“We want to respect the result of the referendum, but in a distinctively socialist way, with a focus on workers’ protection and job creation and safeguarding through our specific focus on removing remaining State Aid barriers. We have done so without blaming or seeking to remove the rights of other EU nationals, who contribute so much to our economy, or by endangering the rights of UK nationals working/studying in the EU, or seeking to do so. Such a Brexit would pass our own six stringent tests for Brexit viability.

The Tories have done none of this, and their position fails these tests. In particular, the appointment of a DExEU minister ideologically committed to the removal of workers’ rights is evidence that a Tory Brexit is becoming the diametric opposite of what many people voted for in June 2016.

At this late stage, where no improvement to the Tory offer can be made, it is reasonable to ask whether the UK should accept a deal which leaves it in a much worse position that simply remaining in the EU, and we believe it is now time to ask the EU about a delay on Article 50, until such time as a competent UK government is in position to deal with the matter.”

Such a statement — and it can be better and more fully constructed than this first stab — will blow the figurative doors off the Brexit debate, not least because it bypasses the calls for a People’s Vote and goes straight to the heart of the matter — Labour finally calling time on a weak government which hasn’t been able to deliver what it promised, which by default is intent on delivering huge damage to ordinary people’s lives, and which has failed to deal with the international Trump/Putin danger which has arisen since the referendum (remember Johnson failed to attend a Novichok meeting so he could work on his resignation letter….).

This strategy is suited to a scenario of Labour in opposition to a May government which has at least done a deal with the EU, however weak and ineffectual, not least because it acts as a bridge to an explicit ‘rejoin’ position post-March 2019. However, i is not suited to the worst case scenario — being in opposition to a government led from October by a Hard Brexit maniac like Gove, or a Hard Brexit stooge like Williamson, in which No Deal Brexit chaos is a real and present prospect. I turn to this now.

c) May replaced by Hard Brexiters and No Deal Brexit chaos looming

The prospect of a No Deal/Lots of Chaos constitutes a national emergency. If we get to this stage, parliamentary process will have failed, the norms of law and order, and other norms like having electricity and enough to eat will be at risk.

Remember that, under the ‘Nothing is agreed till everything is agreed’ EU maxim, this is nine months away, not at the end of the half-agreed transition period.

Labour’s strategy needs to be developed accordingly, and if parliament has failed, it needs to focus on extra-parliamentary remedy.

This effectively rules out recourse to a national second referendum, because the possibility of taking it through parliament and organising it in time will be vanishingly receding, not least given the government’s need to focus on keeping the lights on and stockpiling spam.

Instead, Labour should focus on a broad activist/councillor-led campaign, using three pieces of existing legislation to promote locality and regional opposition to the government’s No Deal trajectory, in a way which fuses the use of somewhat arcane law with a spirit of popular uprising.

I have already set out these legislative means in some detail. In brief, they are:

i) Local councils using their powers under Section 116 of the Local Government Act 2003 to arrange their own council-wide polls, with a very simple question:

Do you wish to a) leave the EU on a ‘No Deal’ basis; or b) Remain in the EU

ii) Local communities in (locally co-ordinated) parished areas using the provisions of Schedule 12, Paragraph 18 of the Local Government Act 1972 to demand that their higher tier local authority exercise the powers set out at i);

iii) Local councils co-ordinating with each other, either independently or via the Local Government Association, to submit a joint application to central government under the Sustainable Communities Act 2007/2010, demanding powers for themselves to deal with Brussels in light of the government failure to do a deal and the consequent dangers to the “sustainability” of their communities.

In all cases, the associational and civil solidarities that such initiatives will brinng may be as useful as the actual legal means in building a case for ‘late Remain’ more widely supported and organized than currently..