Negotiating after no deal

kassim.jpg (1)Until now, much of the discussion concerning ‘no deal’ has been about how it might be avoided or how it will affect daily life. However, after a ‘no deal’ Brexit, the EU and UK would not simply go their separate ways. A trade deal will still have to be negotiated. Hussein Kassim shows that the procedures that would come into play are unlikely to favour the UK and sets out how leaving without a deal is likely to affect the negotiating environment.

Much of the discussion about ‘no deal’ has focused on the UK. It has detailed how Number 10 might force ‘no deal’ through, and speculated on the possibilities and prospects of parliament being able to prevent it. The preparedness of the UK, and the fallout on day-to-day life and commercial activity, have also been considered. Although these are obvious concerns, it is important not to overlook other consequences of leaving without a deal. ‘No deal’ will have an immediate impact on negotiations with the EU. Specifically, it will terminate the Article 50 process. While many Brexiteers have never been happy with Article 50, it is not at all clear that bringing it to an end will be to the UK’s advantage. Nor is it obvious, contrary to Foreign Secretary Dominic Raab’s suggestion on BBC Radio’s Today programme on 29 July, that leaving without a deal will strengthen the UK’s position in the negotiation of a future trade agreement. As well as the procedural issues that ‘no deal’ will entail, the relationship between the UK and the EU is unlikely to be improved.

Procedures and processes

The UK’s withdrawal is currently being negotiated under Article 50, which sets out a procedure created specifically for a member state that has decided to leave the EU. Such a state can, at a time of its choosing, open a two-year period of negotiations to settle outstanding liabilities and agree the shape of its future relationship with the EU. Any withdrawal agreement must have the support of a ‘qualified majority’ of the European Council and is subject to the approval of the European Parliament. It does not need to be ratified by national parliaments.

Article 50 is intended to provide for an orderly and minimally disruptive exit. The two-year period it imposes is intended to concentrate minds. But Article 50 also allows the deadline to be extended if requested by the departing member state and agreed unanimously by the other member states, as it has been twice. Moreover, Article 50 negotiations are a matter of high priority for the EU. The European Council, Council of the European Union, and the European Commission have devoted considerable resources to the process, which have been focused on the EU negotiator, Michel Barnier. They have worked closely together with each other and with the European Parliament. The European Council and the European Commission have also been concerned to ensure a continuous flow of communication between the EU institutions and the capitals of the EU27. It is not at all clear that the negotiations would have the same level of priority or resource under another arrangement. Continue reading

What role will the UK’s MEPs play in the new European Parliament?

simon.usherwood.staffOn 23 May, the UK participated in elections to the European Parliament. Now that we know who our MEPs are going to be, the question becomes: with the UK currently set to leave the EU on 31 October, what can they actually do? Simon Usherwood explains how the UK’s new MEPs can influence control of both the Parliament and the European Commission, and discusses the potential political consequences of exercising their legal authority.

In all of the hubbub around the European elections, the small matter of what the 73 individuals elected to serve as the UK’s Members of the European Parliament (MEPs) will actually do has been somewhat overlooked.

With that in mind, it’s useful to consider what MEPs do in both general terms and more specifically on Brexit, as well as the tension between political understandings and legal rights.

A quick refresher

The European Parliament’s role in the EU is to represent the popular will, in both making decisions and providing scrutiny of the work of the rest of the organisation. It does that on the basis of being composed of directly elected members and from the powers given to it by the treaties that underpin the EU as a whole.

This role comprises a number of different elements, each involving the 751 MEPs either as a whole or in representative sub-groupings.

The most substantial element is that of being co-legislator. Under the EU’s Ordinary Legislative Procedure – which covers most areas of EU decision-making, as the name implies – the Parliament has to agree with the Council of the EU – made up of ministers from the member states – on a piece of legislation in order for it to pass. The EP thus has not only a say, but also a veto, on most EU legislation including matters relating to the budget; and in the other cases it usually has at least some rights of consultation.

The second element is that of oversight. The Parliament’s various committees can summon officials and politicians from the other institutions of the EU to appear before them to answer questions about their conduct. Those committees can then produce reports that highlight issues and which can often force problems onto the agenda for action. In extremis, the Parliament has the power to seek the resignation of the entire Commission, the threat of which in 1999 brought about the early end of the Santer Commission. Continue reading

Taking stock: what have we learned from the European elections?

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Last week, voters across the UK (and indeed, across the European Union) took part in the European Parliament elections. Now that we know the outcome, Alan Renwick examines the impact on the results of both the rules that governed the election and the strategies of the parties.

The European elections raised important questions about how the voting system – and parties’ and voters’ reactions to it – might influence the results. Would the imperfect proportionality of the system harm the smaller parties? Should those parties – particularly the three Britain-wide anti-Brexit parties – have formed an alliance? Could voters maximise the impact of their ballots through tactical voting? Now that the results are in, it is time to take stock.

The impact of the rules

As I set out in an earlier post, European Parliament elections in Great Britain use a list-based system of proportional representation (while those in Northern Ireland use Single Transferable vote, or STV). This system is proportional, but not very. The D’Hondt formula for allocating seats favours larger parties. So does the fact that the number of seats available in each region (ranging from three in the North East of England to ten in the South East) is fairly low.

The results would certainly have been different had the elections been held using First Past the Post, as was the case for European elections in Great Britain before 1999. This system, still used for Westminster elections, awards a seat to the largest party in each constituency. Had voters cast the same votes as they did on Thursday, the Brexit Party would under First Past the Post have won almost every seat in England and Wales outside London and the Home Counties; the Liberal Democrats and Labour would have dominated in London and parts of its environs; the SNP would have captured every seat in Scotland; and the Conservatives would have been wiped out. In fact, many voters would not have cast the same votes as they did. For example, the anti-Brexit parties could probably have agreed joint candidates much more easily than under the actual system, helping them to secure some extra seats. But the Brexit Party would very likely still have scooped up most seats on less than a third of the vote. Continue reading

The European Parliament elections: seven things you need to know

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Nominations for election to the European Parliament closed on Thursday. We now know which parties will be contesting the elections (if they happen), and who those parties have selected to stand for them in each region of the UK. The Unit’s Alan Renwick offers a brief guide to how the elections will work and what we can expect to learn from them.

With little sign of progress in the Brexit talks between the government and the Labour Party, UK participation in next month’s European Parliament elections looks increasingly likely. The parties have nominated their candidates and begun to launch their campaigns. Much is being said about how the electoral system will shape the outcome, but not all of it is accurate. This post provides a quick guide to the key points and reaches two main conclusions. First, the system will disadvantage small parties: in particular, the anti-Brexit parties will be punished for their disunity. Second, anyone wanting to read the results as a proxy second Brexit referendum will need to do so with great care.

1. The system is proportional…

The UK uses a system of proportional representation (PR) for European Parliament elections. To be precise, it uses two different systems. England, Scotland, and Wales use a list-based form of PR, which was introduced to replace the old First Past the Post system in 1999. This is based on 11 regions, each electing between three and ten MEPs. Each party puts up a list of candidates and voters choose one party’s list. The seats are allocated to the parties in each region in proportion to the votes that they have won.

Northern Ireland, by contrast, has used the Single Transferable Vote (STV) form of PR ever since the first elections to the European Parliament in 1979. Each party again puts up a slate of candidates. But voters rank individual candidates in order of preference, and these votes are counted and transferred according to the preferences expressed until the three seats available have been filled.

Proportional systems make it easier than under First Past the Post for small parties to secure seats. Last time around, for example, the Green Party won three seats with 7.87% of the vote, whereas in 1989, under First Past the Post, it famously captured 14.5% of the vote but no seats at all.

2. …but not all that proportional

‘Proportional’ systems vary in just how proportional they are. In fact, neither of the systems used in the UK is especially so, for two reasons. First, the number of seats available in each region constrains how far it is possible to allocate seats proportionally. In the North East of England, for example, where there are only three seats, it is clearly impossible for any more than three parties to win representation. Even the largest region – the South East, with ten seats – is quite small in seat terms, making it impossible to reflect the pattern of votes perfectly in the allocation of seats. Continue reading

Parliament and treaty-making: from CRAG to a meaningful vote?

Hestermeyer (1)Yesterday, the House of Lords debated three international treaties, in line with the process established by the Constitutional Reform and Governance Act 2010 (see here for the transcript of the debates). Holger Hestermeyer discusses how the process of treaty ratifaction works, how it has been affected by the meaningful vote mechanism created by Brexit, and what lessons can be learned from the way in which other countries and organisations ratify treaties.

There has hardly been a day in the last two years in which treaties have not taken centre stage in the public debate. From the Withdrawal Agreement to the future trade relationship with the EU, from discussions about leaving the European Convention on Human Rights to proposals to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) treaties have become essential for the future economic and political outlook of the UK. But as treaties have obtained a central role in the debate, the question of how treaties are made has also become a topic of discussion, in particular the role of parliament. In the UK, that role is limited: parliament can merely delay treaty ratification. It can also vote down implementing legislation, but it does not (or did not, before the Withdrawal Agreement) get a vote on the treaty itself. A separate system is in place for the scrutiny of EU treaties, but this is outside of the scope of this blogpost and will be coming to an end with Brexit.

The UK constitutional setup is somewhat unusual. In many countries, the executive needs to obtain parliamentary consent for certain types of treaties to be able to ratify. Whether and to what extent the UK system of treaty scrutiny is in need of reform is now the subject of an inquiry in the House of Lords’ Constitution Committee, but treaty scrutiny has also played an important role in the discussions on the Trade Bill 2017-2019 and is the subject of EDM 128, which was tabled on 4 July 2017 has attracted 125 supporters. This blogpost will briefly describe how treaties are made with particular regard to the UK. It will then discuss why there is a call for reform. Finally it will turn to what such a reform could look like and what lessons can be drawn from other systems, such as the US, the EU, France or Germany.

How treaties are made

The treaty-making process can vary according to a number of factors, such as whether a treaty is formally concluded as a treaty or through an exchange of notes or whether a treaty is bilateral or multilateral. In general, the parties decide to try and negotiate a treaty with a defined partner, prepare internally (e.g. though consultations) setting their objectives, and then conduct the negotiations. Once the negotiators have reached agreement, the text is finalised and the parties can sign. Usually the signature does not yet bring the treaty into force – most treaties require another formal act expressing the consent of the state to be bound, referred to as ‘ratification’. Continue reading

How long an extension to Article 50 does the UK need?

download.001alan.jfif (1) Despite last-minute additions, Theresa May’s Brexit deal has again been heavily defeated in the Commons. Hence, MPs will need to consider an extension of Article 50. Meg Russell and Alan Renwick argue that for any practical purposes – including renegotiating a deal, or holding a referendum or citizens’ assembly to break the Brexit impasse – the extension previously proposed by the Prime Minister is too short. MPs may now want to press a longer extension on the government.

This week is crunch Brexit decision time for parliament. With the official exit day of 29 March just over a fortnight away, the Prime Minister has been defeated for the second time on her deal, despite some last-minute concessions. She has previously promised MPs further votes on two things: the immediate prospect of a ‘no deal’ exit, or requesting an extension to the Article 50 period. Following tonight’s defeat, MPs will be asked tomorrow whether they wish to exit without a deal on 29 March. If that is defeated, as looks very likely, they will be asked on Thursday whether the Prime Minister should return to Brussels requesting a delay to exit day. Such a decision is at the discretion of the EU27, who must unanimously agree.

The Prime Minister originally proposed that if the Commons supported extending Article 50 she would ask for a ‘short, limited extension’, which should go ‘not beyond the end of June’. But while this might buy the UK time, and avoid the immediate risk of a ‘no deal’ exit, would it really be adequate to resolve the situation? When MPs face this question, there are many reasons to believe that they should demand a longer extension, given how little could be achieved within three months.

Continue reading