September 4, 2017 by Paul Goldsmith
You would be forgiven for thinking there is an impregnable impasse in the negotiations between Britain and the EU over Brexit. That would be true if you consider this a two year process. It it is important to remember that the writers of Article 50 of the Lisbon Treaty, under which Brexit is taking place, wrote a deliberately vague section that was never intended to be used, and if it were followed slavishly would put such power into the hands of the EU it would be impossible to actually negotiate anything. That two year timescale is, essentially, arbitrary, and should be considered so by both sides if they are seeing to be sensible.
Of course, at the moment both sides are not seeking to be sensible. The papers published by the Department for Exiting the EU are, in the words of EU Chief Negotiator Michel Barnier, nostalgic for the benefits of the EU without any of the obligations. Britain is still labouring under the expectation that a few car makers in Germany, Prosecco makers in Italy and cheese makers in France will force the EU to complete a free trade deal with the UK pronto. The EU, however, who has never succeeded in agreeing a trade deal with even one of its top five trading partners, are insisting that what they call ‘sufficient progress’ is made on an exit bill, EU citizens’ rights and Northern Ireland BEFORE any talk about a trade deal going forward takes place.
It is difficult to define what ‘sufficient progress’ actually means. That is because the exit bill depends on the level of engagement with EU institutions and what sort of trade deal Britain will have going forward. Then, EU citizens rights depends on agreement on judiciary oversight going forward (there isn’t a single independent country which has citizens with rights decided by a foreign court so why should an independent UK submit to that). Finally, the agreement on the one land border Britain has with the EU, between Northern Ireland and Republic of Ireland, depends on the Customs agreement achieved between the UK and the EU (free movement is not an issue here as there is a ‘Common Travel Area’ between the UK and Ireland that has been in place since the 1920s).
I think a bigger problem for the UK negotiating team is who there are negotiating with. Some argue that Michel Barnier represents the institution of the EU, which means that he and his negotiating team are not democratically accountable to anybody for the deal that they strike with the UK apart from the institution of the EU itself. So all Barnier represents is a determination by an undemocratic institution to punish the UK for democratically choosing to leave it. Others have argued that Barnier’s negotiation strategy was signed off by the 27 members of the European Council. Therefore he has no choice but to implement what they have agreed. More complicatedly, Barnier cannot concede much unless those 27 countries agree he can. They next meet officially in October. This, by the way, is why the EU haven’t concluded a trade deal with their five largest trading partners. It is hard to do if you work like it does.
Remainers are opportunistically pointing out that Leave campaigners said during the EU Referendum campaign that striking a deal with the EU would be easy as they wouldn’t want to lose the money that comes their way due to our trade deficit with them. Leavers point out that Remainers appearing to be cheering on an institution that wants to punish their country for a democractic decision. Neither approach is helpful.
In the end the answer is going to be to understand that this can’t be a two year process. We are going to need a transition period long enough to achieve the deal we want (which we do need to articulate better than we are) without succumbing to the ‘cliff-edge’ of an articifically imposed time limit. To achieve that, we may need to do what every good negotiator knows, which is to articulate a realistic walk away position that doesn’t account to the whistling in the wind that is happening now. It is hard to see what that walk away position is, but we need one. Soon.