There has been some tough talking before Brexit negotiations have even started

The battle for the higher ground in the Brexit negotiations has begun and the main protagonists have definitely come out fighting. Langdon’s Customs Manager Dave Bradbury examines the current position and what the future might hold…

Article 50 has been invoked and Brexit means Brexit. But what if Brexit wasn’t Brexit?

Firstly, is there a way of backing out now Article 50 has been invoked? There is no text to support this but neither is there any text to deny it. So, what if the position were to be reversed? There would be the question of the mechanism that could allow this to happen and what level of voting or ratification would be required.

The EU employs three levels of voting and ratification:

  • A Qualified Majority– 15 Member States in favour representing 65% of more of the population of the EU plus a simple majority of MEPs.
  • A Reinforced Qualified Majority– 20 Member States in favour representing 65% of more of the population of the EU plus a simple majority of MEPs.
  • Where mixed competencies are concerned– When both the Member State and the EU are responsible and have obligations additionally ratification by all 27 Member States Parliaments is required.

Brexit, of course, means a great deal for the UK but not so for the EU. The main concern of the 27 is now to preserve their unity and prevent further destabilisation. The primary focus at present is on the France and German elections and cementing what’s seen as the primary relationship and moving force in the EU. There is also currently a lack of political will in the UK to change the position and it’s therefore unlikely that the Article 50 process would be reversed.

So what are the options for the UK at present?

The current EU position is that any negotiations should be linear and, until the withdrawal is complete, the UK must not seek to enter into any trade negotiations with non-EU countries. Neither should the UK approach individual Member States about trade or other market matters post-Brexit. The withdrawal negotiation should be completed and agreed before any transitional agreement for trade and other matters can be discussed and this concluded before any long-term trade deal can be negotiated.

The UK’s position is that negotiations should proceed concurrently on all these aspects. This cannot be forced as under the Article 50 provisions the UK has no defined role or voice in the withdrawal process. That said, there have been indications that, if there is agreement in principle to the withdrawal process and conditions by autumn this year, then the EU would begin to explore a transitional agreement with the UK to apply post-Brexit.

There are already some points of contention relating to the negotiation and acceptance of any transitional agreement. Currently, it’s proposed that agreement is likely to require a Reinforced Qualified Majority plus Ratification by the 27 Member States. This gives the potential for a regional administration in some Member States to block it in the same way as occurred when the Canada CETA proposal was proposed for Ratification.

Another is the question of the withdrawal payment and the EU requirement to agree this before talks begin. It’s currently proposed that the ECJ is appointed as arbitrator in these or other matters but whether this is acceptable to both the UK and EU is unclear.

Is no deal better than a bad deal?

Currently, research makes it clear is that it’s in everyone’s interest to agree a deal in the short and long term. However, although the belief that there can be no politics without economics and no economics without politics is not universally accepted, in the case of Brexit it most certainly does apply.