Brexit Negotiations: Proponents of the Leave Still Face Significant Obstacles

By Aure Demoulin 

On June 23, British voters decided that the United Kingdom would leave the European Union. Over the summer, the results of the referendum led to a change in government. Now that Theresa May has taken over as Prime Minister, time has come for her to negotiate the best possible split with the European Union.

One of the most important issues that will be discussed during the negotiations is immigration. Indeed, more than half of the voters who chose “leave” did so because they believe that immigration originating from the EU is a threat. Unfortunately for “leave” supporters, several elements place the UK at somewhat of a disadvantage to negotiate full control over UK borders while retaining a very desirable free market.  

The issue of immigration is intrinsically linked to that of free trade: the UK wants to significantly reduce the free movement of people into the UK, and many are under the impression that it can achieve this goal while also maintaining tariff-free access to the European Union. David Davis, Secretary of State for Exiting the European Union, expressed this view and stated his conviction that “once the European nations realize that we are not going to budge on control of our borders, they will want to talk, in their own interest.”

Unfortunately for the UK, the EU paints quite a different picture: Angela Merkel has made it clear that the UK will not be able to cherry-pick only the pieces of the EU that it wants to retain. Martin Schulz, president of the European Parliament, agreed with her when he stated: “there is no intention to ensure that the UK receives a bad deal, but it is clear that there can be no better deal with the EU than EU membership. The EU moreover must look out for its members’ interests and uphold its founding principles. The single market, for example, entails four freedoms (capital, goods, services, persons) and not three, or three and a half.”

The UK’s aspirations are thus likely to collide with several important EU interests, which will make the task of UK negotiators all the more difficult. In a talk given at Georgetown “University Law Center on Europe After Brexit,” the Ambassadors to the US from France, Germany, the Slovak Republic, and the European Union made it clear, once again, that the UK could not obtain a better deal now than the one it had in the Union. That is, in part, because the EU needs to deter future exits. Because nationalist parties in other Member States will closely watch the deal that is eventually agreed upon, the EU may have to walk away even from terms of a deal with the UK that are economically attractive to the EU.

Moreover, some of the UK’s demands are simply unrealistic. Millions of UK citizens still live and work in EU member states. As a result, the UK retains a non-negligible interest in keeping barriers to the free movement of people minimal for its own citizens. Boris Johnson, the new foreign secretary, promised that “British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down.” Unfortunately, this objective is unrealistic considering the UK’s competing interest in keeping its own borders relatively closed-off to immigration from the EU: Johnson is unlikely to be able to fulfill his promise without offering reciprocal rights to citizens of other EU Member States.

Furthermore, Davis’s claim that the EU will want to reach an agreement in its own interest is perhaps true, but is even more accurate concerning the UK. Indeed, the UK seems to actually have more to lose in the case of a “no deal” scenario: while it exports about 45% of its total exports to the EU, exports to the UK are only about 10% of total EU exports. Therefore, the UK is not in a position of force and it will also be in its own self-interest to make concessions.

Finally, it is worth remembering that the entire “leave” process is playing against British interests. To start the “Brexit” process, the UK must first invoke Article 50 of the Treaty on the European Union (TEU). A decision of the British High Court held that May cannot invoke Article 50 unless the British Parliament authorizes her to do so by a majority vote. This is a first internal hurdle that May will have to overcome.

However, once the UK does invoke Article 50, the country will have only two years to negotiate its future relationship with the EU: the currently existing relationship will automatically expire when a new agreement is reached, or when the two-year negotiation period comes to an end.

For reasons highlighted above, the negotiations are likely to draw out, and reaching a compromise will be especially difficult considering the animosity some European leaders have displayed towards the British decision. If, however, an agreement is reached, it will still need to gain approval from at least a qualified majority of 72% of the Member States, representing at least 65% of the population of the European Union.

In fact, much more likely is that all 27 national parliaments will need to give approval. Indeed, if the proposed agreement is considered to be of “mixed competence,” that is to say an agreement that covers not just trade, but also foreign and security policy, the parliaments of all 27 Member States will have to ratify the agreement before it can come into effect.
As Philip Hammond, Chancellor of the Exchequer, noted, the shortest time in which all 27 national parliaments ratified an agreement in any former EU treaty is almost four years after the negotiations closed. As such, and with the two-year clock ticking, May and her negotiators will be facing an exceedingly difficult task once the negotiations begin: it may be time for the UK to reevaluate its objectives.


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