Article 50: Secession Planning

21 Mar 2017

Policy area: Brexit

So there we have it: the long-awaited, much-speculated official date for triggering Article 50. On Monday Downing Street confirmed that the Article 50 notice will be formally delivered on Wednesday 29 March, apparently signalling the start of a two year ticking clock that will culminate in Britain leaving the EU in March 2019. Now seems a good time to think about what the timing and procedure might look like for Article 50 and the ensuing negotiations.

Why 29 March 2017?

The first question that occurs is ‘Why March 2017 for the launch of Article 50?’. This is primarily in order to avoid clashes with important elections in other European member states (that carry significant influence within the European Council and political groupings within the European Parliament, such as France and Germany). The European Parliament itself will wish to have the matter settled by the time of the next European Parliament elections in June 2019; to do otherwise would risk messiness in tidying up the status of the current UK MEPS, as well as their status in electing the Commission President and Commissioner appointment hearings. While the two year negotiation window is extendable by mutual consent of the EU-27 plus the applicant member state, it is important to note that the Parliament has a say on the final outcome.

One might also say that the UK government has a pressing deadline, since it must enact legislation to address the gaps that will emerge as a result of rescinding the European Communities Act 1972, and give certainty to industry regarding the rights and obligations they currently enjoy under legislation given effect by the Act. This was thought to be in the solitary form of the Great Repeal Bill, to be tabled this year and given effect from 2019. However, in recent days it has emerged that further legislation will be required to address issues such as emissions trading, tax and finance and immigration. In order to deliver such legislation, the UK government will wish to be in a governable period of a fixed term parliament, giving further emphasis to concluding negotiations within the two year period.

Key players in negotiations: EU institutions

Commentators in political science on the nature of the EU disagree on what precise kind of ‘beast’ the EU is. I subscribe to the view that it is an international institution that behaves like a government. It has developed institutions, such as the European Parliament and European Commission, that have motivations and goals of their own. The role of these institutions in treaty reform has grown post-Lisbon, and therefore it would be a mistake to assume that only the member states are important to the outcomes of the Article 50 process. The institutions are not simply at the beck and call of member states. The explicit politicisation of the Commission under Juncker, alongside a European Parliament that has historically sought to increase its mandate over time, should leave us in no surprise that each institution is keen to assert its political preferences over the process.

This means that we should exercise calm and be forensic in our treatment of sources when one of the figureheads from the EU institutions, or national leaders, make a pronouncement on how the Article 50 process will proceed and what the red lines will be. It may well be that they picture the negotiations proceeding in that way, but there are external and internal political preferences at play here.

For example, under the Treaty, the Commission holds the sole right of initiative for legislation and is the Guardian of the Treaty and the common external negotiator. However, in more recent years, the Council has sought to counterweight via the development of its Secretariat and the recognition granted to the Council of the European Union in setting the political direction of the EU. So, the battle at stake is not simply about the terms on which the UK will leave and coordinate in future with the continent, but is very much also about the future direction of the EU as a political project.

The European Parliament has been conceiving of ways it can engage younger members of its polity with measures such as EU citizens’ rights for disgruntled UK remainers, and free interrailing tickets for the under-25s. There is enmity between the Commission and the Council over the sole right of initiative. So expect to see more of Michel Barnier (the Commission’s pick for EU Chief Negotiator for Brexit), Guy Verhofstadt (lead Brexit negotiator for the European Parliament), and Didier Seeuws (appointed by the European Council to head an internal task force in connection with Brexit) jostling over the next few weeks, months and possibly years (see the Commission’s withering response to Seeuws’ appointment last year) – and not necessarily for reasons that solely concern the UK.

Key players in negotiations: Member states

Meanwhile, the member states have home electorates to respond to, and very real public policy problems. Member states in the Council will act at once as both Council members and domestic policy rent seekers, using the opportunity point posed by the Article 50 negotiations to serve their own purposes. Some will also have greater levels of oversight at home than that which is enjoyed in the UK, with the Danes, Germans, and Finns having stronger constitutional processes in place for determining conclusions at EU level.

It is important to note that, while some member states may have greater formal sway within the Council via decision rules, informal conventions count for a lot when it comes to the EU institutions. This is important, because the tendency to appeal for consensus in Council and the Commission’s predilection for safeguarding the interests of the smaller member states as a counterweight to the influence of larger member states means that the politics of the process is more nuanced than first appears.

Regional Parliaments, too, count for much in federal member states and those with autonomous regions. Denmark, Greece, the Netherlands (even with the recent electoral result) and France have movements in favour of similar exit votes. This was the case with Germany ahead of its federal election this autumn, with their UKIP equivalent nibbling at Merkel’s political right flank, but since former European Parliament President Martin Schultz has entered the race and recast himself as a man of the people, the political spectrum maybe refactored there. With negotiations likely to begin in earnest just as the German elections are spinning up, I would have thought that a key item for decision early in negotiations will concern that of reciprocal citizens’ rights, since this matters to the German government.

So what exactly will we negotiate, and what’s the timeline?

Where are we going in that case and how soon will we get there? One could say that, while Article 50 sets out a process for leaving the EU in outline, the outcome is uncertain. As former Permanent Representatives to the EU have pointed out, we have yet to really see a common heads of terms agreed on what the negotiations should concern. Are we seeking to consider the:

  • Future relationship between UK and EU and/or
  • Complete separation of the UK and EU in the sense of a legal and constitutional order and/or
  • Negotiation of a trading relationship and/or
  • Preservation of certain elements of the relationship that currently exists (a la moving to the EU Neighbourhood Program)

This gives further cause for hope that the Article 50 Notice and the Guiding Principles from the Council to the Commission may give further resolution on the matters at stake, but that process itself may take some time and the negotiations may not begin in earnest for some time. But we should remember, as related above, that these are likely to become intermingled with domestic political objectives and the ambitions of the EU institutions.

That is not to say that the UK’s negotiating position is not important; its stance and its content will be.

The UK government’s threats to refactor its economy as a variant of the Singaporean model (however unlikely that may be) unless it obtains a good deal has not gone down well in Brussels or among other national capitals. The UK government could go a lot further by signalling as a starting point what it is willing to concede in order to get what it wants. While the EU institutions and EU-27 have been holding to the norm of no pre-negotiations with the UK pending the serving of the Article 50 notice, it is clear that dialogue has been taking place and that the German leadership is particularly well-prepared.

Our detailed timeline for negotiations and analysis sets out how the timings may stack up. And it quickly becomes clear that two years does not seem a generous timeline. Indeed, Greenland’s exit took three years and that concerned only a very narrow set of issues. Yet there are political imperatives that are a mixed bag of having to do with the UK’s relationship with the EU going forward and being more or less irrelevant to that, and these point to concluding an agreement within two years without that necessarily being the best outcome that could be delivered for all concerned. Looked at this way, it’s no surprise that the UK government has been muttering gloomily about the prospect of no deal at all. From a purely mechanical perspective too, given the ratification process involved, it seems unlikely that the business will comfortably be concluded within the timeframe, even if the political issues were not at stake.

How to get it done in two years

All this leads me to think that the act of leaving the EU and the negotiation of its future relationship will be partly decoupled. The splits in responsibilities between DIT and the DExEU (as well as Number 10) makes this seem more likely to be a possibility. In other words, Article 50 is served, and the manner of leaving is negotiated under the Article 50 process and time limit, but future relationships are parked for either parallel or later discussion under other decision rules. Last week’s exchange between Secretary of State for Exiting the EU David Davis MP and Chair of the DExEU Committee Hilary Benn MP suggested that resolution on the status of a number of individual associations and agreement under the Treaty was not achieved by the UK government. That should come as little surprise since it is probably only possible to consider such questions following discussions with the other 27 parties to them.

In short, there are plenty of political reasons for a quick result. Functional reasons for a quick result are thinner on the ground, and the institutional rules seem set to push against a swift resolution. The problem is that a quick result, given the institutional rules, may not necessarily be the right outcome for the UK’s interests or the interests of the EU as a collective and as a political project in the future.