Win, lose and draw – three Manifestos, three approaches to Brexit for the General Election

The 2017 General Election is nearly upon us – the third national vote in two years. While the electorate may be fatigued by this latest round of politicking, we should not lose sight of the fact that this election matters a great deal for one reason – Brexit.

After all, it is likely to give a mandate to the next government to set the tone for the UK’s negotiating strategy in a deal which is going to define our relationship with the EU – politically, economically, socially – for decades to come.

With this in mind, we have examined what the three major parties have to say, specifically, about Brexit in their election Manifestos. There are significant differences in their approach and so the British electorate has been given a real choice to make.

In preparing what follows, we have not been partisan – rather we have focused the same critical eye on all the parties’ Manifestos.

The Conservatives

“Brexit will define us: our place in the world, our economic security and our future prosperity...with this plan and with a strong hand through Brexit, we will build a stronger fairer, more prosperous Britain” – Theresa May.

The Conservatives' Manifesto is not a surprise. That is because it was foreshadowed by the Prime Minister’s Lancaster House speech and the Brexit White Paper. The tone struck is a confident one – we are told the PM will give the “strong and stable leadership” that is required to secure a “smooth, orderly Brexit”.

There has been little elaboration on the general positions they have thus far adopted, and with which we have been familiar for some time now. So, for example:

• The UK will leave the Single Market and the Customs Union. Instead we will have a comprehensive free trade agreement, for which the UK may continue to make a contribution to the EU, albeit not a “vast” one.
• Immigration will be controlled, and the intention is to secure entitlements for EU nationals in Britain, and British nationals in the EU. In notable contrast to the below, it is clear that any deal on this issue must be mutual – no olive branch is (currently) being offered to EU citizens already living in the UK.
• Workers’ rights will be preserved “at the point at which we leave the EU”. This would suggest that workers will not benefit from EU advancements beyond the point of Brexit, or from future judgments of the CJEU (we reported here on why that is a real issue).
• The ‘Great Repeal Bill’ remains the mechanism by which EU law will be ‘repatriated’ to the UK. Our Courts will take back control in this way. For the sake of legal certainty, this will ‘save and download’ EU law, at the point of Brexit. The Manifesto suggests that the use of so-called ‘Henry VIII’ powers will be limited to ensuring laws function properly, and that it will be for the relevant legislatures to make the substantive changes.
• The EU’s Charter of Fundamental Rights will not be brought into UK law and, once we leave the EU, the Human Rights Act will be re-considered. The UK will only remain a signatory to the European Convention on Human Rights for the duration of the next Parliament.

Such bold statements as to what “will” happen do not seem to indicate much engagement with the warnings that have come from the EU’s negotiators, and EU Premiers, namely that Brexit is a collaborative exercise and not something which can be unilaterally driven by the UK Government, no matter how strong or stable it may be.

The Manifesto also suggests that the exit deal, and the new partnership, should be concluded within the Article 50 window. This appears to run contrary to the EU’s stated position in this respect.

The Manifesto confirms: “we continue to believe that no deal is better than a bad deal for the UK.” Many commentators may disagree and may not be attracted by the brinkmanship that may see the UK revert to WTO rules, with potentially negative consequences.

So not necessarily a Manifesto for polite after dinner conversation with European friends...

The Liberal Democrats

“Where the Liberal Democrats are fighting every step of the way, Labour is holding Theresa May’s hand as she jumps off the cliff edge of a hard Brexit...You might worry that jobs and living standards are threatened by the extreme and divisive Brexit that Theresa May has chosen for Britain” – Tim Farron.

The Liberal Democrats’ Manifesto pulls no punches when it comes to its assessment of the Conservatives’ approach to Brexit or the Liberal Democrats’ view that a hard Brexit would be disastrous for the UK. We cannot yet say whether hindsight will prove them to be the Cassandra of our times.

Their Manifesto appears to advocate a narrow interpretation of Brexit, and to include an option to reject Brexit altogether. The final deal would be put to a second referendum, and the UK would have a chance to remain in the EU after all. This, they say, reflects the fact that the first referendum did not give a mandate for a hard Brexit, and is consistent with their belief that, “Britain is better off in the EU.”

The obvious objection to that position is that it could encourage EU countries (assuming they would want the UK to stay) to adopt intransigent and unreasonable positions in the hope that the punishing economic realities would change the mind of the British people. Is that the case though?

The Liberal Democrats would appear to favour something akin to a ‘Norway’ model. For example:

• They would push for the UK unilaterally to guarantee the rights of EU nationals in the UK. They would at the same time seek the same rights for UK citizens living in European Union countries. Freedom of movement would be preserved.
• The UK would remain a member of the Single Market and the Customs Union. Crucially, the City’s rights in the wider EU financial market would also be retained.
• There is a strong commitment to the protection of workers’ rights. The Manifesto recognises the fact that important employment rights derive from EU law, and that they have been strengthened by the involvement of the Court of Justice of the European Union. They say, “Liberal Democrats will fight to ensure that these entitlements are not undermined”. But does that mean European Courts will continue to influence the UK’s laws post-Brexit?

This approach would seem to respect the first referendum, as we would still leave the EU. However, arguably, it would give the EU something they could more easily marshal the 27 countries behind, rather than having a stark in/out position. The Brexiteers would of course still have a chance of winning that second plebiscite.

The Labour Party

“Britain needs to negotiate a Brexit deal that puts our economy and living standards first...So yes, this election is about what sort of country we want to be after Brexit. Is it one where the majority are held back by the sheer struggle of getting by? That isn’t the Britain Labour is determined to create” - Jeremy Corbyn

The Labour Manifesto rejects the Conservative Manifesto’s “harder” position – in particular their “no deal” approach and the economic “cliff edge”. However, it does not go as far as the Liberal Democrats’ Manifesto in opposing hard Brexit. For example, some highlights:

• They will seek to “retain the benefits of the Single Market and the Customs Union”. That is not the same as saying the UK will seek to stay in those partnerships and accept the concomitant liabilities. Easy to promise, but how achievable is that in reality?
• They say the Conservatives’ approach to Brexit will weaken workers’ rights. They advocate, as one might expect, that such rights will be respected and will make them a priority in the UK’s negotiating strategy. They would replace the Great Repeal Bill with an EU Rights and Protections Bill. The idea is to ensure no detrimental change to workers’ rights (albeit with no details as to how that would work in practice). However, they do not go as far as the Liberal Democrats, in drawing specific attention to the role of the European Courts.
• Parliament will have a “truly meaningful vote on the final Brexit deal”. Following the referendum, the question of whether an MP should act as a delegate to the will of the people as a whole, or as a representative of their constituents in accordance with their own judgment and conscience, has been very controversial. In the Commons’ votes regarding Brexit, it is difficult to argue that there has been much of the latter. That strongly suggests the meaningfulness of such a vote is highly questionable, certainly in the absence of a second referendum.
• There is strong endorsement of the part EU nationals play in British society, and an assurance that they will not be used as bargaining chips. As with the Liberal Democrats, Labour will unilaterally and immediately guarantee EU citizens’ rights in the UK, before seeking reciprocal rights for British citizens in the EU. On the other hand, “Freedom of movement will end when we leave the European Union”.

This Manifesto is more middle of the road than the other two. That begs the question whether the Labour Party has correctly judged the national mood, and set out a nuanced course for a successful Brexit, or whether it simply lacks the coherence of thought, and precision of vision, of the other two parties...

We will find out when the results are in.

Further information

Other lawyers from Kingsley Napley are regularly blogging about the impact of Brexit, follow our Brexit blog or visit our Brexit hub for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact James Murray, Richard Fox or another member of our Brexit team.