While formal exit negotiations cannot begin until Britain triggers Article 50, a three-month hiatus while the Conservatives selects a new prime minister will make it harder to achieve a ‘good’ Brexit. With our European partners and the Scottish government already laying down markers for their vision of the future, London risks ceding the initiative before the process has even begun, warns Nick Wright. He sets out the practical steps David Cameron should take to prepare for the forthcoming negotiations.
Politics, like nature, abhors a vacuum.
Even as the Prime Minister was announcing on Friday his intention to stand down, the Scottish First Minister and our soon-to-be former EU partners were responding to the political earthquake wrought by more than 17 million British voters.
Not surprisingly, much attention has been focused on the reaction in Berlin. German Foreign Minister Frank-Walter Steinmeier, consulting with his fellow foreign ministers from the EEC’s founding states, stressed that they wanted to focus on ‘the future of Europe’. Meanwhile a leaked eight-page strategy paper from the German finance ministry (paywall) revealed that any agreement with the UK must avoid ‘setting wrong incentives’ that might encourage others to head for the exit. Angela Merkel was more emollient, declaring that there was ‘no need to be particularly nasty’ in the negotiations – the UK would not be ‘punished’ for its decision.
One message has been resounding, though: having made our democratic choice, our partners now want us to get on with it.
Their priority, understandably, is stability within the EU and its institutions and ensuring that the departure of one of its bigger states leads neither to disintegration or fragmentation. Their calculation is therefore a simple one: however important positive and friendly relations with a departed UK, they must be achieved within the context of avoiding wider contagion and uncertainty. They may regret our leaving, but our capacity to reach an amicable post-EU settlement depends on our recognising that we are now formally semi-detached, with the gradual but steadily diminishing influence that entails.
If a ‘good’ Brexit is to be achieved, the UK must not find itself on the back foot from the outset of the negotiations. It is therefore a matter of urgency that the UK government sets out its Brexit strategy to the electorate, to the devolved institutions within the UK, and to our EU partners.
Pragmatic diplomacy required
Legally, nothing happens until the UK Prime Minister triggers Article 50 by informing the European Council of our intention to leave the Union. Ostensibly, this ensures the UK retains full control of the process: it cannot be forced to begin negotiations – and therefore the two-year countdown to departure – until it is ready.
However, a certain diplomatic and political ‘etiquette’ needs to be observed. While our partners will show some understanding and sensitivity to the realities of the UK’s current domestic political situation – not least the Conservative party’s process for selecting a new prime minister – they will not have limitless patience and the prospect of a three-month hiatus will be unacceptable.
More practically, and starting at this week’s European Council meeting, the remaining EU-27 will already be considering the kind of agreement they are prepared to accept. Herein lies the particular challenge for Britain: formally, it will not be party to these conversations and any one of the 27 has the capacity to veto the final agreement. This will become especially problematic as the two-year time clock starts to run down and the UK finds itself under pressure to make concessions and compromises it may not wish to.
As any EU official or member state diplomat will tell you, moreover, the time to influence policy is when proposals are first being drafted. Negotiating alternatives is much harder later on. The same principle applies here. The UK will have its own priorities and ‘red lines’: but the longer the formal commencement of this process is delayed, the more likely the EU-27 will have started to coalesce around their own ‘red lines’ and hardened their own negotiating positions.
In a situation where minimising the negative consequences of the UK’s departure will be their priority, the UK cannot be the last to arrive at the party. The absence of clarity over what kind of ‘Brexit’ we want risks ceding the initiative to our negotiating partners.
Minimising uncertainty
What does this mean in practice?
There are a number of practical steps that can be taken to ensure we retain the initiative and are not left in a position of reacting, while at the same time minimising uncertainty.
First, whilst he may consider himself now only a ‘caretaker’, David Cameron must ensure the institutional and administrative structures are ready and in place for the incoming ‘Brexit’ government. While Michael Gove has apparently given civil servants a ‘green light’ to begin Brexit preparations, the Prime Minister and chancellor need to think about and assign the kind of resources the civil service – and especially the Cabinet Office and FCO – will need in terms of money and staffing to drive the process to a positive conclusion.
The FCO has been significantly under-resourced over the last 15-20 years, and yet its diplomatic network (both in Brussels and across the capitals of the EU-27), treaty-drafting expertise and policy knowledge will all be essential to achieving a Brexit ‘soft landing’. It is likely that former diplomats and experts have already been sounded out about returning. This should now be formalised into a clear process to draw on their expertise. In particular, we need to recruit – or re-recruit – the trade negotiators whose job it will be to construct the core element of the post-Brexit relationship. (We currently have only around 20 such experts.)
The Cabinet Office, the hub for the co-ordination of government policy, will similarly require additional resources and capacity. It may decide to launch an audit across Whitehall to establish how Brexit will impact on individual departments and where additional staff will be required. (The recent Balance of Competences review will provide a useful starting point for this). The appointment of Oliver Letwin today as an interim co-ordinating minister sitting in the Cabinet Office – a minister for ‘Brexit’ – to oversee these preparations is a beginning.
None of this would pre-empt the formal ‘Brexit’ programme the new government will wish to pursue. However, using the current interregnum to establish a robust administrative architecture, allocate the necessary resources, and identify a range of positions for ministerial consideration makes sense. Crucially, it also signals to our partners that serious steps are being taken as we prepare to formally invoke Article 50.
This, in turn, emphasises the importance of goodwill on both sides to achieve a ‘good’ Brexit. Discussions, however informal and tentative, between UK officials and their European counterparts will have begun in Brussels and national capitals. Maintaining a constant dialogue, particularly over more contentious issues, will be vital. It cannot be left entirely to the formal negotiating process in Brussels. The incoming ‘Brexit’ government will therefore need to acknowledge and respect the central role British officials and diplomats will play in securing the outcomes they desire, and listen to the advice they offer.
A final suggestion would be for Britain not to take up its scheduled Council presidency in July 2017. By this stage, the UK will be fully focused on the withdrawal negotiations. Its capacity to act as the driver of the European legislative and policy agenda for six months will therefore be limited, not least by potential conflicts of interest and the need to focus its administrative and diplomatic capacity on the negotiations.
As the fallout from Britain’s referendum continues, the forthcoming summer months – traditionally a quiet time in UK politics – promise to be difficult for the government. Domestically and internationally, the prevailing mood is one of uncertainty. Minimising this uncertainty as far as possible is now the priority, and even if we do not take steps in this direction, our partners will.
The current Prime Minister and the leaders of the Leave campaign must therefore act – and be seen to be acting – if a ‘good’ Brexit is to be achieved.
This post was originally published on LSE Brexit Vote and is re-posted with permission.
About the auhtor
Dr Nick Wright is a Teaching Fellow in EU Politics at UCL.
The Constitution Unit Blog 
European Union Referendum act 2015 AS I understand is only advisory and not mandatory. As the government and all the other parties mp’s have just excepted the vote is this unconstitutional or can they do just what they like.
Apart from the fact that the UK parliament ratified the Lisbon Treaty including Article 50, unilateral action of the type advocated here would immediately terminate UK access to any of the facilities of the EU including freedom to provide financial services in other member countries and trade would presumably revert to World Trade Organisation rules and tariffs.
Hallo Friends at the CU.I have written the following article on the increasingly controversial ‘Article 50’ of the Lisbon Treaty.You may wish to publish on your blog by way of a different angle being expressed?Sincerely Graham Wood (York) Is Article 50 of the Lisbon Treaty Sacrosanct? In the period of political current uncertainty in waiting for the dust to settle after the referendum one crucial issue emerges. It is the issue of the EU Lisbon Treaty, with particular reference to Article 50 and how it relates to the current debates and future of the UK . This is constantly being raised in all sections of the media, in parliament and by politicians, and will continue to be the subject of intense and vigorous debate in the days to come, namely the question of what happens within the next few months in Britain ‘s relationship with the European Union and should the Article 50 clause be invoked? Article 50 of the Lisbon Treaty Obligatory?The BBC, most of the MSM, and several leading politicians all assume that it is somehow obligatory for the UK to invoke Article 50 of the LT in order to finally de-couple from the EU and to secure a new trading relationship post referendum. How often have you heard the call, and will hear it again and again in the next few months, namely: Article 50 is the only legal option for the UK to take. ‘Leavers’ reply – it is emphatically not the only “legal”, or most practical option on constitutional or practical grounds. Here are five main reasons why: 1. Article 50 – A tortuous and prolonged process. This route would entail the UK being embroiled in a process which continues to bind us legally to conform to the EU’s own construct in complex and possibly interminable ‘negotiations’, theoretically for a maximum of two years – or less if a mutual agreement is reached before then, but that itself is conditional.This would not only be an admission of defeat for the UK, but entirely contrary to the referendum result and what the British people have just voted for. In the eyes of the 52% majority their vote signalled an unconditional ‘Out’ decision on their part. A de facto expression of their democratic right denied to them by successive governments for decades. They will neither understand nor accept further political machinations by our political class, compromises which deny or dilute their will, or unnecessary delays to their clearly expressed decision. Politicians ignore the strength of those feelings at their peril and at risk of plunging the UK into further and unnecessary deeper division and hubris, if not worse. 2. A highly risky and uncertain process.Significantly a contributor to the Constitutional Unit think tank has starkly warned of the danger – “Article 50 is not really a process designed to facilitate the exit of a nation state from the EU – it is an attempt to build a process that is so risky, politically and economically, that no country would dare invoke it’.” Indeed so because invoking Article 50 would leave the UK a hostage to fortune, or more likely, a hostage to misfortune, given the fragile state of the EU economically and politically, not to mention the real possibility of the Eurozone imploding before then with all the obvious catastrophic results and unknown fall-out. Hence the law of unintended consequences with a vengeance. Indeed, one of the reasons why EU leaders today are calling for Britain to take this route “immediately” is to achieve what they refer to as “certainty”, but as Brexit supporters rightly argued, from the UK’s point of view nothing could be more uncertain than remaining in the EU for all the reasons we know. Taking the Article 50 route will give rise to even more uncertainty. 3. UK remains captive to the EU’s political programme.Article 50 remains what it was always intended to be, namely a political construct which places a departing member state in the humiliating position of a supplicant suing for peace after defeat (as in a war) and pleading for the best terms from the victor. Nothing could be further from the truth as the UK is a sovereign state as politicians keep reminding us, with a largely successful economy and a measure of political stability which the EU itself conspicuously lacks. Britain is a significant global leader “possessing the world’s mother tongue, stability and rule of law, the superb common law”, with its own independent position on numerous international organisations and economically far stronger than the Eurozone members, Germany excepted. The weaker party is undoubtedly therefore the EU itself and in no position to ‘demand’ that the UK adopts the EU negotiating framework of Article 50 as EU leaders are now insisting. 4. Qualified Majority Voting – democracy denied.Undoubtedly the insurmountable objection to the Article 50 route from a British standpoint is the fact that whatever agreement is reached between the UK and EU, in the final analysis such an agreement would then be subject to agreement by 27 states (or possibly more if other applicant states join within two years) by qualified majority voting. That in turn would entail those same member states engaging in the long process of consultation together and with their own national parliaments, and for some their own time consuming referenda. As habitually the case in EU negotiations almost certainly with back-room deals and the usual ‘horse-trading’ for national advantage. What chance then of the UK winning such a QMV vote when historically we have been defeated over and over again in the EU ‘Parliament’?Such a situation is merely a continuation of the status quo. 5. The exercise of national sovereignty denied. Even assuming a final deal agreed by all at the end of the Article 50 process, as Robert Henderson points out: “Britain could be left with an agreement decided by a British government and the EU which might do nothing of what the British public most want and has voted for – the return of sovereignty and control of British borders”. But such an outcome is precisely what many of our own politicians seem to want and are currently asking for with some honourable exceptions such as MPs Bernard Jenkins, John Redwood, and several other ‘leavers’.By sharp contrast the concepts of direct democracy, of which the referendum was an example, and sovereignty are anathema to EU leaders, so we get the German Chancellor declaring that the UK cannot “pick and choose terms of leaving”, or Martin Schulz the President of the EU parliament declaring – “The British have violated the rules. It is not the EU philosophy that the crowd (sic) can decide its fate” (BBC report). This is the height of arrogance on their part and demonstrates once again that the EU is not only undemocratic itself, but anti-democratic. The way ahead – Repeal the 1972 European Communities Act.This should be done very soon and independently of any recourse to Article 50 which is in effect a dead end. Repeal of the 1972 European Communities Act, is the right way forward and returns sovereignty to both parliament and people. (MPs of all parties have long recognised the principle that what parliament conceded to the EU in 1972 can be reversed by the same process via repeal), and that no one parliament can bind its successor (s). It would also be wholly legal and constitutional, and would effectively and very quickly ‘short circuit’ the Article 50 route with all its complications and uncertainties, removing the UK from the EU’s arbitrary framework for negotiation. Without repeal the UK would still be subject to the EU at every level including payment of our membership fee and the perverse judgements of the European Court of Justice throughout the negotiation period.Without repeal Britain could not negotiate any treaties or important trade deals with countries outside of the EU, and British businesses would have to continue to implement EU imposed standards in areas such as the workplace.Repeal would enable the UK to engage with the EU, unconstrained, and from a position of political and economic strength. This is the only way by which government and MPs can now reflect the clearly expressed will of the people and will complete the Brexit process de jure. Breaches of International law?It is argued widely by ‘remainers’ that repeal of the Act would be a dishonourable act, unworthy or shameful for a British government, and one which would be widely condemned by the “international community” as a breach of international law. But many others believe as Robert Henderson points out that: 1. International law is no law because there is never any means of enforcing it within its jurisdiction if a state rejects it and (2) That treaties which do not allow for contracting parties to simply withdraw are profoundly undemocratic because they bind future governments. There is also the fact that the EU and its predecessor the EEC has constantly breached its own rules, spectacularly so in the case of the Eurozone. Hence, for the EU treaties are anything but sacrosanct.
Two points –
1. Those who have expressed concern at the prospect of lengthy delay in triggering Article 50 have tended to concentrate on the risks delay presents to the EU. Surely excessive delay is also potentially damaging to UK business. The longer total uncertainty continues the more likely it is that the options now being planned for removal of staff and operations, particularly in the City of London, will start being put into effect.
2. The attempt by some of those who led the leave campaign to interpret the majority vote as ruling out specific elements of any new agreement with the EU countries (notably freedom of movement) must be resisted. There was only a binary remain/leave choice on the ballot paper. It is now the duty of parliament and any government that emerges from that parliament to find and deliver the best way forward for our country and its people. It seems likely to me that any such solution will contain some element of freedom of movement at least for those who have jobs to come to here and their families.