Autumn 2018 is crunch time in the Brexit negotiations, with many on the EU side increasingly concerned about the risks implied by only finding a conclusion to the Brexit negotiations perilously close to the exit date of 29 March 2019.
While the hopes of a resolution to be reached by October have faded, the December European summit is seen by many as the last feasible date to make a deal that can be ratified by the member states, the European Parliament and the UK itself.
While on the EU27 side, the expected process and outcome of this first phase of negotiations is clear, politics in the UK is in turmoil and the domestic debate is moving further and further away from a realistic assessment of what the EU is likely to accept. In particular, there are a number of myths or misconceptions that will be debunked in the coming months:
- The deal will determine the long-term relationship between the UK and the EU in terms of customs and trade arrangements. In reality, fundamentally, the focus of the Withdrawal Agreement is on the modalities of leaving (transition, rights of EU citizens, UK financial obligations and the Northern Ireland backstop). The political declaration on the long term relationship is, at most, a statement of ambitious intent.
- If the EU and UK agree on moving towards close integration with regard to customs union and single market, the Northern Ireland backstop will not be needed. This might be true after the transition, once the long term relationship has been agreed. But it is precisely to give certainty if that long-term relationship falls short in providing a frictionless border that the backstop will remain in the Withdrawal Agreement.
- The unity of the EU27 is starting to dissolve. The EU27 have a strong agreement on the (domestic) political and economic costs of allowing a special deal (cherry picking) for the UK. This is why they have been able to agree and stick to the negotiation principles that have been in place from the outset of the negotiations and even for those countries most affected by Brexit, these red lines are much more important than short term economic disruption.
- Michel Barnier and the Commission do not speak for the member states. In the end, they will step in and make a deal happen. This is a complete misunderstanding of his role. He is there to embody and ensure the national interests of the member states. If he was consistently out of line with the wishes of member states, he would not be there for very long.
- The UK is free to re-decide or start the negotiations afresh right up to the date of Brexit. This is a dangerous illusion. Unless the UK can demonstrate a decisive and committed change of mind on the decision to leave (which would imply staying a member state with the current conditions), the Withdrawal Agreement is the only deal on the table. It is, essentially, a choice between ‘no deal’ and the Withdrawal Agreement.
- But the EU is desperate to keep the UK in. The EU has moved on, Brexit is not the top agenda item. If the decision can be changed easily and without significant costs, it might be considered but there is now growing distrust of the UK political system and a fear that the UK could not commit long term to EU membership even if it wanted to. Most fear that if the UK were to stay in, most likely it would continue to be an ‘awkward’ member state.
- If necessary, the EU27 will simply extend the Article 50 period. In addition to the required unanimity, there are a number of political and legal issues. It would imply the UK taking part in the European Parliament elections (with a number of countries not receiving the additional MEPs that have been allocated to them) and it would, most probably, not alter the end point of transition due to EU budgetary implications. Most importantly, many countries believe that, no matter what time the UK is given, it will not be able to decide between economic harm and breaking the Brexiteer red lines unless forced by a hard deadline.
- The idea that we have limited time available for negotiations has been planted to force agreement. Transition can always be extended, if necessary indefinitely. Transition can only be extended if there is provision for it in the Withdrawal Agreement. This will only be time-limited, as the long-term relationship cannot be defined through Article 50, and anything that looks like a permanent arrangement has unacceptable consequences in terms of market access for other third countries the EU has trade deals with.
- But the EU has always been flexible when it comes to ignoring its own legal provisions. True, but only up to a point. Some provisions might be ‘fudgeable’ to some degree but not when it comes to fundamental principles, especially those contained in the treaties, where judicial review would play a major role. Even more importantly, it would require a strong (unanimous) political will to bend the rules, as any opposition to such a deal could easily use the legal framework to torpedo this way forward.
- But if it comes to ‘no deal’, the EU will find a solution, if only to minimise economic harm to itself and to prevent a hard border in Northern Ireland. Almost nobody on the EU side wants ‘no deal’. But for the EU27, no deal is truly better than a bad deal that compromises its principles, especially since giving in to the UK would also have domestic political consequences for some of the key actors. It would also be legally tricky to find a solution when the Article 50 notification period has run out, which is specified within the treaties.
The implication is that for the UK, at this stage, it will be a straightforward choice between the Withdrawal Agreement with the Northern Ireland backstop or no deal at all, with all the consequences that implies. The long-term arrangement will only be negotiated in the transition period, once the UK has left. Then, if the UK red lines shift, more options are possible. But the negotiations of the long term relationship will not be any easier. On the contrary, the worst is still to come. It is only when the long-term relationship is under negotiation the UK will have to choose between a deal that minimises economic harm but is anathema to the Brexiteers, or selling a deal to UK businesses where virtually every sector and every company loses out. The current domestic debate in the UK thus represents the beginning of the Brexit process, not the end, and it would benefit from a greater understanding of what drives the EU in this process.
First published by the Scottish Centre on European Relations CC by NC-ND.4.0