Article 50: What to expect when you’re expecting (…Brexit negotiations)

Shortly before 12.30pm this afternoon Article 50 was triggered and Brexit negotiations formally got under way. In this post Nick Wright looks ahead to what we can expect to happen over the next two years. He suggests that, whatever the technical detail, Brexit will first and foremost be a political process and will require pragmatism and goodwill if it is to be conducted smoothly and with minimum disruption.

And so the ‘phoney war’ of the last nine months is finally over. The now infamous Article 50 has finally been triggered.

Earlier this afternoon Sir Tim Barrow, the UK’s Permanent Representative to the EU, delivered to Donald Tusk, President of the European Council, the UK’s formal notification of its intent to leave the European Union. Their brief conversation over (it apparently lasted around a minute), the two-year countdown to Britain’s departure from the EU can officially begin.

However, if you were expecting David Davis and his negotiating team to have their bags packed, ready to jump on the first Eurostar to Brussels to start the difficult (and likely fraught) process of disentangling the UK from the EU, think again.

After many months of waiting, there is still more to come as the Brussels machine cranks into action and the other 27 member states seek to ensure Britain’s departure does not do terminal damage to the European integration project.

So what happens now?

Stage 1: The EU’s Brexit choreography

The EU’s key institutions, including the Council and Commission, have been preparing for the commencement of negotiations since virtually the day after the referendum result.

Donald Tusk has already taken soundings in EU27 capitals, while the member states have held a number of informal ‘Brexit Councils’ without the UK. These meetings will have been designed to agree their broad objectives, and to emphasise that ‘in these negotiations the union will act as one’.

Meanwhile, the European Commission’s team, headed by former French foreign minister Michel Barnier and his deputy Sabine Weygand, an experienced Commission trade negotiator from Germany, has been in place for some months now. Indeed, Margaritis Chinas, the Commission spokesperson, declared on 13 March that ‘everything is ready on this side’ and ‘we stand ready to launch negotiations quickly’.

Having received the official notification from the UK, Donald Tusk will circulate the proposed ‘negotiating guidelines’ –the basic political principles for the negotiations – among the EU27. These will then be agreed at a European Council summit of EU27 heads of state and government on 29 April.

Following this, the Commission will bring forward its more detailed ‘negotiating directives’ setting out how the negotiations will take place and including a formal mandate to Barnier to proceed. These will be officially confirmed by the EU27 foreign ministers in a meeting of the Foreign Affairs Council in May.

Whilst somewhat complicated and involved, this process reflects both the complexity of achieving consensus among the EU27 on the line the EU should take in the negotiations, and the determination of those same member states to keep the Commission under close supervision throughout the process.

Stage 2: Negotiating about negotiating

Even though the formal negotiating mandate may be approved by late spring, substantive talks will not begin until the modalities of the negotiations have then been settled between the UK and its EU partners.

There are two main elements to the negotiations: the first is the withdrawal agreement (‘divorce settlement’), and the second is the nature of the UK-EU relationship post-Brexit. Article 50 is suitably vague on the process, noting only that any withdrawal agreement should ‘take account’ of the future relationship.

Perhaps unsurprisingly, before the talking has even begun, there is already disagreement about the framework within which the two parties wish to operate. While the UK seeks to conduct negotiations on both aspects in parallel, the EU has said negotiations on the future relationship cannot begin until the details of the UK’s withdrawal have been settled. Thus, the UK and EU will need to engage in ‘talks about talks’ before any progress can be made.

EU priorities:

In a recent speech, Michel Barnier made clear that the EU’s first priority is to find agreement on the three core issues that will form the basis of the withdrawal agreement:

1/ British acceptance of the principle that it must settle its outstanding financial obligations. ‘There is no price to pay to leave. But we must settle the accounts’, he declared. These include commitments made under the EU’s current Multi-Annual Financial Framework (or budget) which covers the period 2014–2019; payment of pensions and healthcare costs for the UK’s EU officials, etc. These liabilities have been estimated at between €40–60 billion and the demand is that Britain accept the principle of settlement even if there remains room for negotiation over the final amount and the time period over which they must be paid.

2/ Safeguarding the rights of EU citizens living in the UK. Given previous UK government statements, this should not be a hugely contentious issue, particularly as it is equally anxious to secure the rights of British citizens living in other EU member states. The devil, though, will lie in the detail. Some of the more lurid recent headlines about the impact on NHS resources if several hundred thousand ex-pat British pensioners are forced to return to the UK if no deal is found serve as a reminder of what is potentially at stake. Continuity, non-discrimination and reciprocity will need to underpin this.

3/ The border between Northern Ireland and the Republic of Ireland. The EU will be seeking guarantees over the border between Northern Ireland and the Republic. Theresa May has made clear she wishes as ‘frictionless’ as possible an arrangement between North and South, although the Government’s Brexit white paper contained precious little detail about this might be achieved.

There will be a determination to achieve as swift and mutually satisfactory a solution as possible here, particularly given the political sensitivities surrounding the idea of a ‘hard’ border. But on the face of it, were Theresa May’s declaration in January that the UK would be exiting the Single Market followed through to its logical conclusion, a hard border of some sort would seem to be inevitable. This particular question could therefore be tricky to resolve.

UK priorities:

On the UK side, meanwhile, the priority is to focus on achieving a comprehensive free trade agreement and new special partnership, presumably encompassing foreign and security policy co-operation amongst other priorities. There is considerable scepticism that such an ambitious outcome is even possible in two years. The recent free trade agreement with Canada, CETA, took seven years to negotiate after all.

David Davis, the Brexit Secretary and politician charged with leading the UK’s negotiators, has made clear he sees no reason why talks on the ‘divorce’ cannot run in parallel to talks on the future relationship. However, the EU has so far adopted a tough stance on this, demanding the ‘divorce settlement’ is agreed before any discussion of the future relationship takes place. The UK will therefore likely need to show some willingness to compromise on the EU’s three main areas of concern.

(It is worth noting that ahead of the official Article 50 notification, Phillip Hammond, the Chancellor of the Exchequer, hinted at the possibility of compromise on the question of financial liabilities and other issues in order to achieve ‘the best possible deal for Britain’.)

That said, the EU negotiating machine – as the UK well knows – is based around achieving consensus and building good will to facilitate deals. If the UK is believed to be negotiating in good faith a compromise is possible, although there will be wariness on the EU side of the consequences of linkages between the two tracks.

Assuming, though, that agreement on these modalities can be reached, negotiations can then begin.

Stage 3: Deal or no deal?

Since the referendum result last June, we have seen a largely domestically-focused debate over the type of Brexit the UK government will pursue and what its ‘red lines’ may or should be.

With attention now finally on Brussels, we must remind ourselves that the UK is embarking on the most complex and multifaceted set of international negotiations it has conducted in at least the last 75 years. As the brief discussion above has highlighted, there are many potential roadblocks before substantive negotiations begin, while a successful outcome is by no means certain once they have, and then faces the further challenge of ratification at the end of the two years.

A recent report by the House of Commons Foreign Affairs Select Committee, ‘Article 50 negotiations: implications of ‘no deal’’, perfectly captures the scale of the task that lies ahead:

The process of UK withdrawal from the EU will be complex and challenging, and the exit agreement will have to be concluded under significant time pressure. Even if all sides enter into the process with goodwill and the desire to ensure a successful outcome, there are many reasons why the negotiations might fail.

Indeed, over the last few weeks it has emerged that the British government is now seriously considering the possibility that the whole process might fail and the UK could end up crashing out of the EU with no deal in place.

Whether this is merely sensible contingency planning, or has been a negotiating ploy to ‘up the ante’ ahead of Article 50 negotiation, the fact remains that a mutually satisfactory outcome is by no means guaranteed. And whilst some of those most passionately in favour of UK withdrawal may even welcome such an outcome, such a ‘theocratic’ Brexit would likely have significant negative consequences for all involved and would certainly stand in stark contrast to Theresa May’s declaration that the UK and EU remain close partners in the future.

Concluding thoughts

Whatever the technical details, Brexit is first and foremost a political process and will require pragmatism and goodwill if it is to be conducted smoothly and with minimum disruption. Those charged with bringing it about face a daunting 24 months.

About the author

Dr Nick Wright is a Teaching Fellow in EU Politics at UCL.

4 thoughts on “Article 50: What to expect when you’re expecting (…Brexit negotiations)

  1. Pingback: Now that Article 50 has been triggered, reality will start to bite | The Constitution Unit Blog

  2. “.. the member states have held a number of informal ‘Brexit Councils’ … designed to agree their broad objectives, and to emphasise that ‘in these negotiations the union will act as one’.”

    ‘Act as one’ is such an evocative phrase; so easy to say, so obvious, yet always difficult to achieve. he bundle of sticks analogy of Romulus and Remus and, no doubt, many others before that. It was key to success of the various and numerous coalitions in Europe aiming to defeat Napoleon, finally succeeding in 1815 after numerous (was it seven?) attempts. The central aim of German unification under Bismarck. It was key to the Allied coalition from 1914 to defeat Germany, and conversely, Germany recognised that breaking it was key to its victory; key to the Allied coalition in WW2; key to what was hoped would be a lasting peace in Europe and unbreakable in a Federal European State. A a coalition acting as one is embedded in the principles of NATO and is the normal Western means of using armed force to support the post WW2 rule based international order. And now the EU itself, while seeking to acquire its own armed forces, which will act as one, makes it key to success in defeating Britain acting alone.

    Acting as one seems to have become the holy grail of humanity, always out of reach an any permanent basis. Would it be too bold to project a line from here, however, wavy, to a final confrontation between two mighty coalitions, each enjoining half the world to act as one, to defeat the other?

    There is one important difference between NATO and the EU. The former, whilst it is a formal and long standing alliance and despite its Article 5, recognises the sovereign independence of its members, so coalitions are temporary and different depending on the circumstances and the job to be done within this overall framework. The EU does not respect the sovereign independence of nations. Indeed it seeks to subordinate the member states to its central power to the maximum possible degree in the unqualified belief that, “National sovereignty is the root cause of the most crying evils of our times…”, as it proudly proclaims on a plaque at the entrance to the Visitors Centre of the European Parliament. (Words written by an Englishman, as it happens!)

    Perhaps the EU intends to be one of those two final blocks, only one of which can be victorious. Perhaps the EU should instead ask itself what is the purpose of this rigid determination to make everyone act as one, to what end?

    Personally, I prefer diversity. Diversity so that we can in each group in which unity is easier to achieve by means of a genuine demos, explore different ways of progressing human civilisation, including ways of how we govern ourselves, exchange ideas, co-operate where we want and need, but without crushing diversity.

    What is wrong with leaving people alone to do this in their own ways? After all, isn’t diversity the natural order of species of all forms of life, without which all are at risk of extinction by the inability to adapt to new situations?

    Put any number of people in a room, divide them into groups, present them all with the same problem to solve as a group in business, politics, or anything requiring humans to act together in a team, small or large. Do you expect every group to come up with the same answer? If they did what would be the point of the exercise in the first place? The point always is to generate different ideas, share them and consider the merits of each, recognising that there will not be one that is the best for every group and that every proposal is based on the diverse practical experiences of each person or group. The EU allows only one solution for all. Diversity will inevitably die out.

    Diversity is essential. By attempting to suppress it the EU is dangerously on the wrong path. Forced unity always fails eventually. Successful unity works by voluntary cooperation among diverse entities for a particular objective and is adaptable to different circumstances and needs.

  3. We would need a comprehensive breakdown of this €60 billion leaving cost. Then we would employ forensic accountants to examing this breakdown (probably several hundred pages). They will determine that the amount exists, the figure is correct and the UK is responsible. This will take several months. So what happens whilst this exercise is going on?

  4. This contains the Bar Council’s detailed assessment, starting at p. 27 of the overall assessment – very interesting and highly unsettling (only read to p. 32 so far).

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