This week the House of Commons will be asked to determine the type of Brexit our country seeks.
Will MPs back a sensible lords amendment to the EU (Withdrawal) Bill that instructs Theresa May to negotiate a deal keeping Britain inside the European Economic Area, or will we risk a bad deal such as a Canada-style Free Trade Agreement which would do nothing for our services industries and lead inevitably to a hard border in Ireland?
Or, worse still, will we allow the government’s profound incompetence to take us over the cliff edge into a "no deal" scenario, where tariffs and non-tariff barriers destroy the jobs and livelihoods of the very people we were elected to represent?
The choice seems straightforward enough. But for reasons that many are still struggling to comprehend our front bench has instead tabled its own amendment which asks for the removal of any specific reference to the EEA as a negotiating objective and instead calls for "maximum access to the Single Market", "shared institutions", "common standards" and "no new impediments to trade".
There is no issue in principle with these aims, but the problem is not the message, it’s the messenger.
The votes this week are a golden opportunity for Labour to legislate against the Brexiteers’ dream of turning our country into a European version of the Cayman Islands. But we can only achieve that aim if we’re able to secure the backing of a cross-party bloc comprised of the vast majority of Labour MPs, the SNP, Plaid Cymru and the Lib Dem’s plus, crucially, 15–25 Conservative MPs.
There is no doubt that there are at least 25–30 Conservative MPs who are prepared to back the Lords EEA amendment. Indeed, at the time of writing 15 Conservative MPs have signed a pro-EEA amendment to the Customs and Trade Bill, an indication that they would also be willing to join us in the division lobby on Wednesday to vote for the Lords EEA amendment to the EU (Withdrawal) Bill.
However, there is a fundamental difference between asking pro-EEA Conservative MPs to back an amendment tabled by our front bench and asking them to support an amendment tabled by our back benches. Defying the whip is a challenging thing to do for most MPs at the best of times, but it is impossible for any Conservative MP to contemplate voting for an amendment that has been tabled in the name of Jeremy Corbyn.
Our leadership knows that, our front bench knows that and our whips know that. So, in tabling their amendment, and in whipping us to abstain on the Lords amendment, they knew that they would effectively be wrecking our prospects of commanding a cross-party parliamentary majority in favour of the EEA.
So, why are they doing this?
Our leadership and front bench’s reluctance to advocate an EEA-based Brexit appears to be based on their view that EEA membership would relegate the UK from "rule maker to rule taker". This argument is patently wrong. EEA countries are not subject to the supremacy of EU law, and neither do they fall under the direct jurisdiction of the European Court of Justice (ECJ). The EEA is overseen by the EFTA Court, and disputes are managed by the EFTA Surveillance Authority. The EFTA Court routinely makes judgements that diverge from the ECJ, and Britain would have at least one British judge at the EFTA Court, quite possibly two.
EEA members are also the only non-EU countries to have influence over Single Market rules. Britain would help shape legislation through consultation with the EU Commission on the same basis as experts from EU states. The EEA countries also have the power to block new single market rules that affect the EEA, firstly in the EEA Joint Committee and then – if a consensus cannot be met – within that country’s own parliament.
In terms of responding to the concerns around free movement of labour that drove millions to vote Leave, articles 112 and 113 of the EEA Agreement provide a solid basis for the suspension and reform of any one of the four freedoms that underpin the Single Market, including the free movement of labour. Liechtenstein triggered article 112 when it joined the EEA in 1993, and now imposes industry-by-industry quotas on residence. Clearly it would be absurd to compare Liechtenstein with the UK in substantive terms, but the key point here is the legal precedent. And it is also worth noting that the EU confirmed that Switzerland would have been permitted to invoke articles 112 and 113, if the Swiss had also voted to join the EEA in ‘93.
What’s striking is that the front-bench amendment is far vaguer and more open-ended than the solid, well-established and treaty-based provisions of the EEA. The front bench amendment actually commits us to "no new impediments to trade", which effectively kills off the possibility of suspending or reforming any one of the four freedoms.
I represent a constituency that voted Leave, and I am very conscious of the absolutely legitimate concerns that my constituents have about sovereignty, and free movement of labour. And this is precisely why Labour MPs in Leave-voting seats should be backing the Lords amendment. By committing to the EEA, we would be giving ourselves the levers that we need to suspend and reform free movement of labour. We would also be joining a set of institutions that, for 25 years, have helped deliver frictionless trade between the EU and the EEA/EFTA countries whilst also protecting their interests and defending them against the risk of the EU institutions encroaching unfairly on their laws, borders and practices.
The government’s approach to Brexit has been characterised by confusion, recklessness, incompetence and chaos.
But you cannot cut through butter with a knife that’s made of butter.
The Lords EEA amendment could be our last chance to strike a blow for sharpened realism, pragmatism and mainstream Labour values, and that is why I and many of my colleagues will be voting for it tomorrow.