10 November 2016

Negotiating Brexit: The Great Unknown

Negotiating Brexit: The Great Unknown
This article focuses on the Brexit negotiations that will have to take place before grand rhetorical promises in the UK are revealed to be achievable political realities or simply pipe dreams. For surely we can better predict the outcome, if we better understand the process.
The challenge for commentators is that there is no precedent for Brexit, and therefore no clearly identified path that the UK can follow in order to extricate itself from the EU. Some may choose to point in the direction of Greenland, which left the European Economic Community (EEC) in 1985 when it seceded from Denmark. Greenland is a nation with 50,000 inhabitants, but its negotiations with the EEC took three years to conclude. If a small country with one major export product, fish, took three years to arrive at an agreement with the EEC then the UK negotiations could last for even longer and be manifestly more complex.
The UK may argue that its position as the EU’s biggest trading partner and its relative size should mean that it will be able to wrap up an exit deal comparatively quickly. However, previous large-scale EU negotiations have dragged on and on. Consider the seven years required to agree on the EU-Canada trade deal (CETA), and the seemingly never-ending negotiations on an EU-US deal (TTIP).
Importantly, Theresa May recently confirmed that article 50, the formal process of leaving the EU, will be triggered by the end of March 2017, and we can soon expect to witness some ground-breaking negotiations. There are only 262 words in article 50, and therefore it cannot comprehensively describe the complex and lengthy nature of the process that awaits negotiators in London and Brussels, but it does make a start.
Firstly, a Member State must notify the European Council of its intention, and this marks the beginning of the two-year period in which the Member State can negotiate its terms of separation from the EU.
Having obtained the consent of the European Parliament, the withdrawal agreement requires a qualified majority vote in the European Council. On the date of the entry into force of this agreement, the EU treaties cease to apply to the departing Member State and the nation has thus officially left the EU. If no settlement is reached within the two-year period, the treaties automatically cease to apply to the departing nation. This two-year time limit can in fact be extended, but only with the unanimous support of the European Council.
Furthermore, for the duration of this process, the departing Member State is excluded from any Council discussions on its exit agreement, and thus the UK would be considered as an outsider looking in once article 50 is invoked and the negotiations begin. Therefore, the UK will not only be excluded from internal EU discussions on negotiations, but will have to take into account the positions of the European Parliament and the European Council as it seeks to conclude the most complex negotiations in living memory- all within a brief time frame of two years.
In terms of the key players, Article 50 references ART 218(3) of the Treaty on the Functioning of the European Union (TFEU), which states that the European Council is the lead actor, authorises any negotiations, and appoints the negotiator.
In fact, all three EU institutions have appointed their Brexit representative: the Commission has Michel Barnier as their Chief Negotiator, the Council has Didier Seeuws at the head of their Brexit taskforce, and Guy Verhofstadt MEP has been appointed as the European Parliament’s lead negotiator. The appointments have been made, but as things stand the EU negotiating team is far from settled.
Things are hardly clearer on the UK side, but David Davis has been appointed as the Minister for Brexit, alongside important roles for other leading eurosceptics, as Boris Johnson is the Foreign Secretary, and Liam Fox is the Minister for International Trade. The state of play in Westminster points to Davis’s Department for Exiting the European Union (DExEU) taking on an important role, as the fledgling department moves from operating out of a Starbucks, to becoming an influential actor. Nevertheless, it seems certain that Prime Minister May will be pulling the strings for much of the negotiations.
The negotiations themselves will arguably commence with preliminary technical discussions involving national experts from the UK working alongside those from the Council and the Commission. However, when matters become more political we can surely expect Theresa May and her inner circle to play a more active role on the UK side.
On the opposite side of the table, it is harder to predict. Will special negotiations occur in the European Council between heads of state, or will the teams of Seeuws and Barnier together vie to provide a single contact point for the EU27 Member States in the negotiations? Whilst politics will surely trump technicalities -with this implying leading roles for the French and German leaders whoever they may be- the Commission’s expertise and its role as the guardian of the treaties will also be relevant when it comes to finding an agreement that does not violate the EU’s legal foundations.
Similarly, we should also expect the European Parliament to play an indirect role as its assent is required to ratify any deal. Whilst Verhofstadt can realistically only hope to influence negotiations from outside the room through passionate rhetoric, it is important to remember that the opinions of MEPs must not be forgotten as negotiations progress, if ratification is to be achieved.
Another point to consider is whether the negotiations will occur in Brussels as expected, and whether or not they will take the form of negotiating rounds à la TTIP. Both these factors could shape the nature of discussions, and therefore the eventual outcome, and the total lack of substance on these questions within article 50 means that each side could try to push for an outcome that suits them best.
For the UK this might imply technical meetings culminating with an intense and highly political summit with European leaders. The UK could hope that Member States would offer the UK a reasonably positive deal at the last moment, with a summit allowing Theresa May to pressurise and isolate individual leaders in an effort to divide the European position on Brexit and thus secure concessions from European leaders without the restraining influence of the EU institutions.
On the other hand, the EU might seek for a TTIP style of negotiations with various rounds of discussions occurring in a periodic fashion with meetings remaining technically focused on particular areas. This approach would allow the EU to keep things technical, and to give the Council and the Commission staff an opportunity to play a role in ensuring that the Member States stay united in their negotiating position, and that all sides have time to cool off between negotiating rounds in order to avoid the risk of potentially rash decisions being made under intense pressure.
Finally, it is of the utmost importance to emphasise that there is no guarantee that the UK and the EU will actually find an acceptable negotiated settlement that the UK, a qualified majority in the European Council, and the European Parliament can all agree upon.
From all of this we can clearly see that there is a need to first have negotiations about the negotiations. The UK will push for one thing, and the EU may push for another. Evidently the paucity of detail found within article 50 will not help matters, but it does perhaps provide each side with an opportunity to shape the negotiations in the way that they see fit.
To conclude, it seems that the best analogy to describe Brexit so far is that of a game between two opposing sides. The analysis has so far focused on when the match will start, meaning the triggering of article 50, and what the result of the match will be, in short, what deal will the UK get? However, we have thus far utterly avoided the nature of the match itself, this being the negotiations.
The analogy with games stops there, as in reality this will be long, hard, complex work, and the fact that the UK and the EU are now entering uncharted waters with little more than 262 words to guide them does not provide the stability and certainty upon which straightforward negotiations are normally launched. Therefore we can only be certain of one thing; that the words Brexit and uncertainty will continue to fill our newspapers and TV screens.
Benjamin Thom

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