The Labour Party is the dealmaker when it comes to Brexit. Former Irish Prime Minister John Bruton explains.

The worst possible outcome of Brexit for Ireland would be the UK crashing out of the European Union without a deal because Parliament cannot make a decision. The key to avoiding this disaster lies in the hands of the Labour Party.

So far, the focus of discussion in regard to Brexit has been on whether the minority Conservative Party government can reach sufficient consensus internally to make a deal to withdraw the UK from the EU. But such a deal can only come into effect if it is approved by the House of Commons.

Here, the stance of Labour is crucial. If Labour were open to supporting the deal — or even if the party abstained from the vote in Parliament — the Democratic Unionist Party (DUP) and the hardline Conservative Brexiteers would not be able to stop it. On the other hand, if Labour, the DUP and the Brexiteers all oppose it, the deal will not come into effect.

There would then be massive political uncertainty, the likelihood of the UK crashing out of the EU in 2019 and a huge blow to the global economy. One could then place blame on the DUP and the hardline Brexiteers, but Labour, as the bigger party, would bear more responsibility than the others for this debacle.

LABOUR’S “SIX TESTS” ARE BESIDE THE POINT

The Labour Party has set six tests that it says the withdrawal agreement must pass if it is not to vote against it in the House of Commons. On close examination, the tests seem to be designed to allow Labour to vote against any conceivable deal that Prime Minister Theresa May could have negotiated on a withdrawal treaty. The tests that Labour says the withdrawal agreement must pass are: 

1) “Does it ensure a strong and collaborative future relationship with the EU?”

This is impossible because the future relationship will not be negotiated now, but later during the transition period.

2) “Does it deliver the “exact same benefits” as we currently have as members of the EU single market and customs union?”

This is also impossible because there would be no point having an EU single market or customs union if, as a non-member, the UK could get all the benefits that members get. In any event, these issues will not be settled in the withdrawal treaty.

3) “Does it ensure the fair management of migration in the interests of the economy and communities?”

The UK has not yet finalized its own future migration policy, so it is unreasonable to expect the withdrawal agreement to do what the British government itself has been unable to do. In any event, what would Labour’s migration policy be?

4) “Does it defend rights and protections and prevent a race to the bottom?”

This is not going to be settled now. It will be the subject of the future trade negotiations, and the EU will be doing its best to ensure that the UK, outside the union, does not reduce quality, environmental and labor standards to win market share.

5) “Does it protect national security and our capacity to tackle cross-border crime?”

Again this is for the future negotiation, not for the withdrawal agreement. The only way the UK can take part in the European arrest warrant is by staying in the EU and accepting the jurisdiction of the European Court of Justice. National security policy is the responsibility of member states, not the EU, and cannot be bound by an agreement made by the European Union.

6) Does it deliver for all regions and nations of the UK?

This is a matter for the UK government, not for the withdrawal deal from the EU.

So, the agreement cannot pass these tests for the simple reason that none of these six matters can be finalized until later. They are not valid tests for a withdrawal agreement, and the Labour Party should know that.

It is true that the agreement will be accompanied by a political declaration about the framework for future relations between the UK and the EU. But, legally speaking, this declaration cannot give binding commitments on the six points raised by Labour. In fact, on some of these matters, like security policy, are ones where the EU could not give commitments — even in a future trade agreement — without the consent of the legislatures of each of the 27 member states of the union.

The Labour Party knows this perfectly well. Choosing six tests designed to give a basis for rejecting any agreement that Prime Minister May could negotiate would be a legitimate and normal opposition tactic if the government had an overall majority in Parliament. But it does not. The Conservative Party depends on an agreement with the DUP, which has said it is prepared to break.

WHAT HAPPENS IF LABOUR DEFEATS THE DEAL IN PARLIAMENT?

Let us assume Labour wins a vote to reject the withdrawal agreement. What does Labour do then?

Obviously, Labour would like either a general election or a change of government in this Parliament. But, even if that happens, a Labour-led government would not have time to negotiate a new withdrawal deal that would pass its own six tests before March 29, 2019, the date that the UK will be out of the EU, deal or no deal.

The only way Labour could pass its own six tests would be by withdrawing the Article 50 letter written by Prime Minister May and seeking to keep the UK in the EU after all. There are two issues with this. First, there is legal doubt as to whether the UK has the power to withdraw its Article 50 letter. The European Court of Justice would have to adjudicate on that. Second, staying in the EU would require a second referendum.

A second referendum would have a lead time of 22 weeks, from the decision to hold one to polling day. This is because of legal requirements in Britain. A special bill for a referendum would have to pass in both the Houses. This 22-week delay would bring us beyond the UK’s automatic exit date of March 29, unless the UK had first obtained permission to withdraw the Article 50 letter.

All this has huge implications for the whole of Ireland, not just the border. So, to avoid a crash out Brexit, Irish diplomacy now needs to focus on the Labour Party as well as the Conservative government. The Labour Party needs to be persuaded to come off the fence and either back a realistically negotiable withdrawal deal or say clearly that it would prefer the UK to say in the European Union. The party could then base its parliamentary tactics on whichever of those two options it prefers. Either would be less disastrous than the present fudge.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.