At the time of writing we do not know if there will be a UK-EU trade deal at the end of the transition period, and we do not know precisely what will be in such a deal if it ever emerges. We do however know that this is going to be a thin and minimal Deal, and will not – for example – prevent truck tailbacks at Dover, or solve the headaches of trade between Northern Ireland and the rest of the UK. It would be – to use the terminology used since 2016 – a Hard Brexit, rather than a No Deal Brexit.

All of that has not stopped speculation about whether the Labour Party will whip its MPs to back a Deal the Tory Government has negotiated, or not, if we ever get to that stage. This blog post examines what the Labour Party should do – and makes the case that its MPs should be whipped to abstain.

First of all, what does Labour actually want on Brexit?

We know Labour wants a Deal much more than it wants No Deal, but beyond that we know rather little – Labour has not advanced much in the way of criteria as to what sort of a Deal it sees as acceptable. The party has its own 6 tests for a Brexit Deal, but these date back to 2018, so are not much use now. We also know that – despite whatever Boris Johnson or the press might say – Britain’s exit from the EU is legally done. There is no way to Remain in the EU. The battle now is over what the future relationship should look like – and how Labour can line that up with its values.

At this stage it is worth ruling out a couple of things. Labour is not and cannot be a Rejoin the EU party – how all the political parties approach that question is one for the medium term, and is to be assessed only once the short term UK-EU relationship is clear. So this blog post is not based on Labour’s medium term approach. Second, even though Labour just wishes the Brexit question will go away, it is wrong to assume that it will. If you think the question ever dies, ask the Swiss, for whom their relationship with the EU has been one of never-ending (re-)negotiation.

So Labour wants a Deal more than it wants No Deal, and how it behaves now should be assessed according to need to shore up the short term UK-EU relationship, but conscious that the UK-EU relationship question will never be definitively answered, or go away.

Now that’s clear, what about the technicalities?

There is no binding vote on the ratification of a UK-EU trade deal, as explained in this excellent piece by Matt Bevington. This is the crucial bit:

If in that time [21 days] either the Commons or Lords passes a motion against ratification, the Government must lay a statement before Parliament explaining its justification for ratifying.

The Commons decided to not give itself a binding vote on trade deals back in the summer*.

So any vote on the deal is indicative. It sends a signal. But whatever Labour (or indeed any MP of any other party would do) does not stop whether a Deal happens or not – that is dependent on what the Government agrees or not.

That means the idea that were Labour to vote against a Deal, and enough Tory rebels did so too, that Britain would end up with No Deal is flat wrong.

There is a slight caveat to this – there might well need to be primary legislation to implement a Deal in UK law – and there a vote in the Commons would be binding, and it would make sense for Labour to back it, to avoid a legal grey zone where the UK had agreed a Treaty but had not passed the law to implement it. But backing a law implementing the Deal is not what people mean when they say Labour should back the Deal.

So Labour has to make up its mind how to vote on a motion that sends a signal, but cannot lead to No Deal. It could whip in favour, whip to abstain, whip against, or allow a free vote.

Whipping MPs to vote in favour – as Starmer seems minded to do – makes little sense. It plays into the media narrative – that Labour is not trying to reverse Brexit – but at some point this line ought to be abandoned, as it is now 10 months since the UK left the EU. Beyond that it has little to commend it. Starmer, deep down, knows that this is going to be a sub-standard Deal, and that some amount of disruption in January is inevitable. He and Labour would have negotiated a very different Deal to this. And then when Starmer wants to put Johnson on the spot about the chaos at Dover in a PMQs in January, the retort will be “well this is your Deal too!”

At some point Labour has to move on from trying to avoid the Leave-Remain fight, and start to shape a post-exit narrative – about what sort of relationship with the EU would work for the UK, and voting in favour abjectly fails to do that – it lumps Labour in with a Deal that will be sub standard, and prevents Labour being able to move on.

The notion that voting in favour at this stage is important for Labour to win back the “Red Wall” seats strikes me as wide of the mark – it assumes voters are so clever they in 2024 they will remember a vote four years previously, but that they are not clever enough to be able to distinguish between versions of Brexit. And if – as is likely – the Deal is a lousy one, having backed it is going to have thin benefits for Labour.

Whipping MPs to abstain is the logical continuation of Starmer’s approach to Brexit up to now – to continue the Napoleon adage “when the enemy is making a false movement we must take good care not to interrupt him“. Labour can legitimately say that the Brexit Deal was negotiated by a Tory government, that Labour would have done it differently, but is nevertheless letting the Tories own the mess. The vote is not binding anyway (as explained above) but it gives Labour a plausible way to avoid being tarred with the problems when they occur in 2021, and to pin that failure squarely on the Government. We did not stand in the way of a Deal, but we would have done it differently, can be the line to take – and it would be the right line, given where the Labour Party is just now. It is also the line that pretty much all of Labour’s parliamentary party could live with.

Whipping MPs to vote against a Deal is fraught with problems, for it would require Labour to articulate what it would do instead – and the party is ill equipped to do that. And the Tories would have a field day labelling Labour and Starmer as Remainers were he to take that route. So that is obviously too dangerous. Some pro-Europeans might advocate this one, but it makes no obvious sense as I see it.

A free vote is also not a solution for Labour, as once again it would open up all the division that the party has suffered on Brexit over the past four years, and would lead to the accusation that Starmer is even less capable than Johnson of imposing some order on an unruly party. Ethically it might make sense, but in reputation terms there is no gain whatsoever in a free vote.

So that’s how I come to the conclusion that Labour MPs should be whipped to abstain. Not because that is a perfect option, but because of the predicament Labour finds itself in (part of its own making, part made by others) it is the least worst option. It is the position that best reflects Labour’s actual stance, and the political and legal context in which the decision has to be taken. And – most importantly – there is no danger that voting this way leads to No Deal.

* [Update 30.11.2020, 1415]
Mark Johnson quibbles with my point here, saying that the House of Commons could continue passing motions every 21 days to prevent ratification. It could theoretically do that, but had Labour abstained first time, and a motion had failed because more Tory MPs had voted against it than had voted in favour, Johnson would politically be toast – because of discontent within his own party. That might also be seen as an extra reason to not vote against – as that could hasten this sort of motion after motion delay.