And They’re Off: Britain Starts its Brexit Divorce Negotiations

Was the letter from Prime Minister Theresa May triggering Article 50 guarded all the way from London on the Eurostar train to Brussels by a team of security men in order to prevent it from falling into the fiendish hands of some pro-European plotter? Is it sealed with red wax, as in the days of the medieval monarchies?

As Sir Tim Barrow, the UK’s Permanent Representative to the EU, walked down the red carpet to the Europa building in Brussels to deliver his prime minister’s letter to Donald Tusk, the president of the European Council, he was treated by the media like a top celebrity; the entire event had the feel of an Oscar awards ceremony.

Just over nine months after Britain’s voters narrowly decided on Brexit, May has formally started the legal process of separation from Europe by instructing her ambassador to the EU to deliver a formal diplomatic letter announcing Britain’s intentions, as required by European treaties.

Both sides claim to be well prepared for the negotiations that lie ahead. May has created an entire government department whose sole purpose is to conduct the talks for Brexit.

And the European Commission, the EU’s executive body, has its own team of seasoned negotiators for the purpose; the process will be ‘calculated scientifically’, says Commission President Jean-Claude Juncker.

But in reality, both sides are embarking on a journey into the unknown, since there is no precedent for what they are about to negotiate, and no clear guidance as to what may be acceptable to either Britain or the rest of the EU.

Nor is there much time, for although the negotiations are expected to last two years, the time available for compromises is restricted, while the potential for mishaps remains vast.

Not a Bad Position to Be In

Notwithstanding the criticism she has received from the media in both Britain and mainland Europe, May’s position at the start of the Brexit negotiations is not that bad.

The debates in parliament over the government’s powers may have been extensive, but the reality remains that ministers enjoy a broad mandate to negotiate. And none of the doom-laden scenarios about the impact of Brexit have come to pass, at least for the moment. The British economy has continued to grow, and actually more rapidly than the economies of most of the other EU member states.

It is also silly to criticise the government for refusing to rule out the possibility that Britain may simply drop out of the EU at the end of the two-year negotiation period if it fails to get an acceptable deal.

For this is a negotiation, and to admit at this stage that Britain is condemned to sign a deal, however bad that may be, is tantamount to negotiating with one’s hands behind one’s back.

However, a more careful analysis of May’s latest statements would indicate that she is fully aware that a chaotic EU departure would alienate Scotland and justify another independence referendum, as well as scaring foreign investors in Britain.

She has therefore allowed herself some room for manoeuvre in the Brexit talks. Her officials have been briefing journalists on an attributable basis that the prime minister’s objective is ‘bringing to an end the direct jurisdiction’ of the European Court of Justice in Britain (emphasis added).

This is a roundabout way of saying that some compromise may be found whereby the Court’s rulings may indirectly be applied in British law after the UK leaves the EU.

And her officials have also taken to speaking about ending Britain’s ‘vast contributions’ to the EU budget ‘every year’ (again, emphasis added), which is a hint that London is amenable to a deal over the final bill that the EU will demand for Brexit.

More significantly, the British government has not used the occasion of its formal Brexit notification to declare a change in the status of EU citizens arriving in the UK, or suggest that this is a formal cut-off date of some importance for their future legal status in Britain.

And London has also dangled the opportunity to strike deals over security and defence with a post-Brexit Europe. In short, the government’s position is nowhere near as inflexible as it currently seems; May’s biggest problem may turn out to be her own backbenchers, rather than the negotiators in Brussels.

Lack of Control

The snag is that she does not control the negotiating agenda; that is the job of the EU’s Michel Barnier, a former French minister and tough international negotiator,  on behalf of the remaining 27 member states.

Barnier proposes to start Brexit talks with the issue that May finds most sensitive: the bill that Britain will be expected to pay as it leaves, to cover existing European projects and liabilities.

European negotiators estimate that the bill could amount to €60 billion, a vast sum that is almost certainly an exaggeration, but which puts the British on the defensive.

Barnier is also likely to stick to the demand that, if Britain wants access to Europe’s markets, it will have to accept most of Europe’s rules, including the jurisdiction of European courts.

But, yet again, Barnier’s position may not be as powerful as it may seem, for everything is predicated on two big assumptions: that the EU 27 will maintain a united front throughout; and that the European Council, the body which includes the heads of states and governments and is charged with defining the EU's overall political direction and priorities, will not intervene to overrule the Commission during the negotiations.

This is despite the fact that according to Article 50 of the Treaty of Lisbon, which guides these procedures, it is the Council of the European Union – the voice of EU member governments – that is the final decision-maker on Brexit.

And anyone who knows the EU will also know that these two assumptions are very big indeed.

Time's Short

The ultimate enemy of the Brexit negotiations may well be time. Although EU officials promise to publish their own Brexit ‘guidelines’ by Friday, its negotiating stance is unlikely to emerge before an EU summit scheduled for 29 April.

The negotiations themselves are unlikely to start before May, after the final round of the French presidential election. But even then, not much is going to happen before Germany holds its own general election at the end of September.

And, since any Brexit deal would need to be ratified by both national parliaments and the EU parliament, and the entire process must be completed within two years from today, the estimates are that negotiators have barely a year – between October this year and next – to conclude deals disentangling an estimated 19,000 laws and regulations grouped into 700 ‘baskets’ of different measures.

There is no escaping the conclusion that the best the UK and the EU can reach is a broad agreement of principles, bolstered by an interim agreement of practicalities. Expect many more dramas and diplomats walking down red carpets in Brussels.

For further RUSI coverage of the Brexit campaign, click here.