Now that Article 50 has been triggered, reality will start to bite

Following the triggering of Article 50, the honeymoon period is over for Theresa May. Oliver Patel outlines the main challenges which the UK faces in the upcoming negotiations. He argues that securing a deal within the two period will be hard enough. Securing a deal which pleases everyone – or anyone at all – will be virtually impossible.

Theresa May has had an easy ride so far. Up until now, she has only had to worry about pleasing her core domestic audiences. Now that Article 50 has been triggered, however, reality will start to bite. The two-year road to Brexit is fraught with uncertainty, obstacles and challenges. Two stand out above all else. First, given the complexity of the task, two years is an extremely short length of time in which to negotiate and finalise the UK’s withdrawal. Second, getting a deal which satisfies everyone – the British public, the EU and its 27 member states – will be virtually impossible. Theresa May needs to negotiate with 27 other countries, each with their own interests and priorities, who arguably have the upper hand in the talks. Her task is an unenviable one.

Is two years enough?

The triggering of Article 50 marks the beginning of a two-year process in which the UK and the EU must negotiate and conclude a withdrawal agreement. From May onwards, after the European Council have agreed upon official negotiating guidelines, the negotiations can begin in earnest. If no deal is reached within two years, the UK leaves without an agreement (unless the EU unanimously decides to extend the negotiations). Two years is a remarkably short length of time in which to complete what is routinely described as the most complex task undertaken by the British government since World War II. EU leaders have made it clear that they want the negotiations to end in October 2018, to allow time for any withdrawal agreement to be reviewed and ratified. This means that the UK could have no more than 18 months to negotiate its exit.

This short timeframe makes the entire process particularly challenging. Sorting out the practical aspects of the divorce will be complex in the extreme. Resolving thorny issues such as the Irish border, the status of EU nationals in the UK and UK nationals in the EU, the future participation of the UK in EU regulatory bodies, and the financial liabilities which the UK owes the EU, will be highly time-consuming, not least due to the complexity and contestability of the issues involved.

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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.

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An interim EEA-style deal for the UK is the most likely outcome from the Brexit negotiations

Jim-Gallagher

Five months on from the EU referendum it is still unclear what sort of Brexit deal the UK government would like to seek. In this post Jim Gallagher argues that this means that it is hard to see either the UK or the EU being in a position to implement a bespoke Brexit arrangement by the deadline of March 2019. He therefore suggests that an interim EEA-style deal for the UK is the most likely outcome from the Article 50 process.

Fully five months after the vote we still have no idea what the United Kingdom government thinks Brexit means. That very fact tells us what Brexit will probably be like, and how it will be implemented.

Failing to plan

That there never was a plan for Brexit is now a commonplace. David Cameron expected to win the referendum, and planned accordingly. For reasons that are now obvious, the different Leave campaigners weren’t in the planning business either. Over the last five months, this has moved from unsurprising, to deeply alarming. It is now quite likely to determine what happens.

Why do we still have no idea what Brexit means? First the magnitude of the task: Europe and its laws are embedded to a greater or lesser degree in every aspect of our public life. It’s said that there are 500 or more projects ongoing in the civil service to disentangle that spaghetti. In the absence of clear direction as to the end-state, each is bound to have multiple variants. Ministers are unable to give a clear direction in part because they know they must negotiate. But the main reason is that they themselves have no single view on what the UK’s future EU relationship should be. They disagree on how far out we should be. It’s not just a lack of vision but competing visions, reflecting the continuing political divisions at the core of the government. It’s hardly surprising then that the civil service, now smaller than at any point since the Second World War, is having a hard time. Whitehall is crying out for a clear sense of direction and not getting one. As a result, the UK will trigger Article 50 on the basis of an incoherent and undeliverable prospectus.

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What does ‘Brexit means Brexit’ mean (if anything)?

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Theresa May has been clear that ‘Brexit means Brexit’. However, Brexit could mean a number of different things. In this post Sionaidh Douglas-Scott writes that there are no legal or political reasons why Brexit negotiations must take any particular direction. The electorate voted only to leave the EU, not for any particular exit agreement.

On 28 July in Bratislava, Theresa May told eastern European countries that the British people sent a ‘very clear message’ on the need to reduce migration through their vote to leave the EU, and that the UK’s deal with the EU would have to take into account voters’ views on immigration control. But does this mean that free trade with the EU will have to be sacrificed in order to curb free movement of people? If so, then the possibility of the UK following the ‘Norway option’, by joining the EEA, would seem to be ruled out.

Yet in many ways, the EEA might be the best alternative to EU membership for the UK. It could provide legal security for trade with the EU in most goods and services and could be achieved quite quickly, reducing uncertainty. EEA membership would mean that the UK was free to sign its own trade deals with other countries and also would not bind the UK to some of the EU’s more contentious policies such as fisheries, agriculture or VAT policy. However, it would mean continuing free movement of persons with the EU, which many see as a key reason for the Leave vote. (Yet, notably, unlike EU membership, Chapter 4 of the EEA Agreement provides a safeguard, whereby EEA states can disapply part of the EEA, ‘If serious economic, societal or environmental difficulties of sectorial or regional nature liable to persist are arising.’)

But must Brexit mean ‘hard Brexit’? Must resistance to the continued free movement of persons within the EU dictate the terms of any deal the UK negotiates with the EU? I argue not – there are no legal or political reasons why Brexit negotiations must take any particular direction, let alone a hard one.

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Brexit and Northern Ireland: key issues and possible consequences

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In this post Alan Whysall sets out the key issues for Northern Ireland in the upcoming Brexit negotiations and examines the likely consequences. He suggests that, if things do not go well, there is a risk of the unwinding of political and social progress. It is urgent that the options for Northern Ireland are quickly and honestly analysed, and that the Executive takes coherent positions on them. But there has been little such analysis in Northern Ireland so far: Brexit reinforces the need for policy development capacity outside government.

On 23 June, Northern Ireland’s voters preferred by 55.8 per cent to 44.2 per cent to remain in the European Union.

Northern Ireland is in many ways in the front line of Brexit: the part of the UK with a land border with an EU state, where a large proportion of the population identifies itself with another EU state, considering itself Irish more than British. But the debate started very late, despite the efforts of an NGO established to develop it. Little analysis of the questions involved has emerged – the Northern Ireland Affairs Committee of the House of Commons produced a useful report but nothing comparable was undertaken locally. Once again, the Northern Ireland system – Executive, Assembly, media, civic society – has found it hard to move beyond the traditional issues of Northern Ireland politics.

Key issues for Northern Ireland in a negotiation

Northern Ireland will need to have analysed the impact of various outcomes from a negotiation, and decided which to press for, and what special treatment it would be looking for, so far as those outcomes leave flexibility.

The most obvious issues are around the border: does it become ‘hard’? So, if the UK is not in the Single Market, can customs duties be avoided – is it feasible that Northern Ireland should have any sort of special status? If not, are customs controls on the border inevitable?

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Achieving a ‘good’ Brexit: what David Cameron needs to do now

Nick-Wright

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.

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