by Dan Cooke

At the time of writing there are over 3 million signatories. In coming days it will probably continue to climb. But however many people eventually sign the petition for a referendum re-run it can only be an exercise in frustrated misdirection. The Leave vote creates a new political reality which only a time machine could undo and no democrat can ignore.

Yet, as we search for a path forward, it will become increasingly clear that the public does have to be consulted again before Britain finalises its exit from the EU – and that another referendum to approve or reject the terms of exit is the right way to do so. For Labour, even if it succeeds in electing a new leader, an explicit commitment to such a referendum in its manifesto for any snap election will probably be the only way it can build a national coalition of support. This means taking the position that Brexit is not inevitable because if exit terms are not approved the logical consequence is that Britain remains in the EU.

The key to understanding the referendum’s chaotic aftermath (and probably the result itself) is the false choice it presented between a known and unloved status quo and amorphous alternative that the Leave campaign skilfully preserved from any concrete definition. Only now is there beginning to be serious scrutiny of the real alternatives available, ranging from membership outside the EU of the European Economic Area or “EEA”, allowing Britain to preserve most Single Market rights, to a range of essentially theoretical alternatives that are only beginning to be sketched out.

Unsurprisingly, a dividing line is already beginning to crystallise around those (in both the Remain and Leave camps, and in all parties) who favour the EEA option and those who see it as inadequate.

As the country stares into the abyss of uncertainty the EEA option offers the understandable appeal of deliverability and certainty. Britain could leave the EU, join EFTA (the European Free Trade Association which we left in 1973, with its remaining members being Norway, Switzerland, Iceland and Liechtenstein) and, in this modified capacity, remain party to the EEA Agreement, which we originally signed in 1994 and which is now the primary legal instrument for the Single Market.

This could certainly be accomplished within the two year time-frame for negotiating exit from the EU after an Article 50 notification. Who can say the same about any bespoke trade negotiation which would need to be approved unanimously by the remaining 27 member states, several constituent parliaments and potentially referenda in several of those states (for example, the Netherlands recently held a referendum which blocked an EU trade detail with Ukraine)? Attempting to craft, negotiate, agree and ratify anything more ambitious than EEA membership in an acceptable time-frame – while business confidence and political credibility drains away month by month – would be a zip-wire act that even Boris Johnson could not relish.

Big business will be surely rally strongly behind the EEA as the safe option and will be a powerful lobby as the Conservative Party decides its new leadership and policy. It is notable how quickly Phillip Hammond – as one of the very few senior Tories to have broken cover by the weekend to answer any questions at all about the post-referendum reality – clearly stated that retaining Single Market membership would be a red line for him. There have been further hints from other since then.

Prominent statements from big employers, likely to follow HSBC in making membership of the Single Market the test for whether or not their swiftly relocate jobs outside the EU, will only reinforce the salience of this choice. There may also be hopes that swiftly agreeing to remain in the Single Market will take the wind of the sails of Nicola Sturgeon’s calls for another independence referendum.

However, the arguments against presenting EEA membership as a valid response to the referendum result are obvious and powerful. One of the “four freedoms” defined by the EEA is freedom of movement and there is no realistic prospect of unpicking this within the context of that existing treaty. It is surely inconceivable that Boris Johnson, or any prominent Leaver, could go into a Tory leadership election – let alone face the public in a General Election – having jettisoned the position that Britain should “take back control” of immigration policy in a way which is incompatible with EEA membership.

It is certain the Tories will not be able to fully resolve these tensions and a competent opposition should be able to make enormous mileage from the confusion and bitterness that will result. However, they present just as great a trap for Labour against the background of a likely early election. On the one hand, quickly and firmly committing to the EEA option offers the chance for Labour to broaden its appeal by capturing support from the recently mobilised coalition of Remain voters and to re-build its credibility with business. But over-selling a solution which completely ignores the concerns about immigration which motivated many in the Labour heartlands to vote Leave could consign Labour to despised irrelevance among many of its natural supporters.

The signs of a split on this issue among Labour MPs – until recently overwhelmingly united by the case for Remain – are starting to emerge even as they make common cause in challenging Corbyn. In recent days, Gloria de Piero, speaking for many Northern MPs, has cited Corbyn’s failure to respond to concerns over freedom of movement in the campaign as a reason for his unsuitability to lead, while Sadiq Khan – now the de facto spokesman for London’s financial sector – has argued it is “crucial” to retain Single Market access and so accept freedom of movement.

There are also democratic arguments against membership of the EEA outside the EU. Rather than equal involvement in shaping regulations we would have to accept the “government by fax” with limited consultation rights recently warned against by Norway’s PM.

It is certainly not Labour’s job to argue away these flaws. Labour would have no credibility if it argued the EEA option is a better deal overall than the EU membership which the party overwhelmingly supported in the referendum. Similarly if Labour now attempted to argue that EEA membership truly addresses the concerns of those who voted Leave, it would only transfer to Labour the opprobrium properly owed to the Tories for calling the referendum without a plan and to the Leave campaign for their glib and undeliverable promises.

Instead Labour’s position in an early election should be that, in deference to the result of the referendum, we have a duty to identify a deliverable option for leaving the EU and that a renegotiation built around EEA membership is the least bad option to maintain the key benefits of the EU which we campaigned for, while addressing some of the concerns of Leavers regarding the political dimensions of the EU. In this context, it would be right to assure the public that the final decision remains theirs, and so full details of what that proposal involves will be put to them for approval in a referendum before an irrevocable commitment is made.

This would mean giving the public the choice whether to implement the original Leave vote on the basis of negotiating EEA membership outside the EU, or to reject the best option for leaving and therefore to remain in the EU for the foreseeable future (and argue from within for reform). While critics may complain this is in fact just a re-run of the original referendum on terms that exclude more radical change, it is undisputable that a new government would be entitled to pursue to EEA option without a referendum and a decision to put the choice to the public is certainly a more democratic way to pursue this route.

This should be a very different referendum campaign from the one just witnessed. A Labour Prime Minister should not campaign “head, heart and soul” to persuade a jaded public of a preferred outcome, but instead channel Harold Wilson in 1975: facilitate a public information campaign identifying the pros and cons of what is on offer, step back, and allow all ministers and MPs to campaign for the decision they favour. Whatever the outcome, those who believe there is another more radical option for life outside the single market would be free to continue to make their case through the political process – but may struggle for a hearing as the public tires of those “banging on about Europe”.

Today, in a divided country, the closest thing to a unifying force is the emerging sense of distrust and powerlessness triggered by a vicious referendum campaign followed by complete confusion over what the future holds. In an early election, the best strategy for Labour is to promise that the public will be empowered to resolve this unfinished business soon with a final decision on a concrete and realistic alternative.

Dan Cooke is a Labour member and business lawyer

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