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21 November 2017updated 02 Jan 2018 12:53pm

Did Labour just miss an opportunity to save Britain’s membership of the customs union?

The party is rowing over Ian Murray's amendment to a ways and means bill.

By Stephen Bush

Labour’s Brexit divides are on display again after the leadership whipped its MPs in opposition to an amendment from one of its own MPs, Ian Murray. (The whip was a one-line whip so MPs – a one-line whip means MPs don’t have to attend and don’t have to ask permission not to be there, a two-line whip means they have to vote but if they ask they can probably be slipped away or paired, a three-line whip means they must be there. It is not the same as whether or not there is a line to take or not: the equal marriage vote was a three-line whip, because Labour MPs had to attend, but a free vote, because they could vote how they wanted.)

On the one hand, Labour’s most committed soft Brexiteers, and the Liberal Democrats and SNP, say that the vote was a missed opportunity to try to keep the United Kingdom in the customs union that reveals Jeremy Corbyn’s true Brexit colours. While Labour’s shadow secretary of state for international trade, Barry Gardiner, says that the amendment was a dog’s dinner that wouldn’t have achieved its stated purpose in any case.

Who’s right? Well, the slight problem is that they both are. It’s true that Corbyn is, privately, by no means committed to the European project. It is also true however that his Euroscepticism is not a particular passion of his, and that if supporting a softer Brexit expedites the fall of the Conservative government, he could bring himself to hum “Ode to Joy” now and again.

But it is also true that Murray’s amendment was a bit of a mess. It would have inserted the words “other than goods originating from the European Union” after the word “goods” throughout line three of the bill, so, for instance “Obligation to declare goods for a customs procedure on import” would become “Obligation to declare goods other than goods originating from the European Union for a Customs procedure on import”. That is to say, the procedures for the treatment of customs from the EU27 would remain unchanged to what they were had we remained in the customs union.

But it wouldn’t have stopped the United Kingdom leaving, and wouldn’t be enforceable without doing one of two things: either adopting those terms for all goods worldwide, causing economic ruin to many British companies, or seeking to remain in the customs union. As the United Kingdom has triggered Article 50, it cannot necessarily revoke it or change the terms of its exit set out in Theresa May’s Article 50 letter unilaterally. (There is legal confusion on this matter which in practice would have to be settled by the European Court of Justice.)

So what the Murray amendment would have done is seek to retain the United Kingdom’s customs union membership by holding a gun to the government’s head. (In practice, it is unlikely that the EU27 would refuse on this one, as retaining membership of the customs union allows both sides to avoid a hard border on the isle of Ireland.) But the whole endeavour is fraught with risk.

The difficult truth for the Labour leadership is that while they can pick holes in Murray’s approach, they don’t have one either – though they are on paper open to remaining in the customs union. It may well be that having voted to trigger Article 50 means there is no way for parliament to reassert its will. It’s certainly true that no amendment, whether from the Labour frontbench or its backbenches, comes close to being adequate to the task of taking control of the Brexit talks in the legislature and moving this away from the executive.

So it’s fair enough for the Labour leadership to argue that the amendment wouldn’t have worked. But equally, it’s reasonable for Remainers to wonder when, exactly, Labour is going to start taking risks or if the party’s real position is that they can’t really meaningfully shape the outcome so they should steer well clear.

Though of course this is all secondary to the real problem as far as softening Brexit goes, which is that the amendment only attracted two Conservative rebels. And the reluctance of Tory Remainers to do serious damage to their government, coupled with the support for Brexit among many Labour MPs in heavily Leave areas, is the real barrier to a softer Brexit.