The triggering of Article 50: what comes next?

It seems that Prime Minister May is seeking to soften the blow of a ‘hard Brexit’.

Long before the letter triggering Article 50 was handed to Donald Tusk on 29th March , a white paper had been formulated by the government in January, setting out a provisional Brexit plan with 12 specific principles. Certain principles seemed to indicate the ‘hard’ stance that Theresa May has been expounding, such as ‘taking control of our own laws’ and ‘controlling immigration’. However, the majority of the principles focused on maintaining the current status quo as far as possible, aiming for ‘ensuring free trade with European markets’ and ‘protecting our strong historic ties with Ireland and maintaining the Common Travel Area’. With regards to the government’s stance in negotiations, the white paper hoped for ‘a smooth, orderly exit from the EU’, ‘providing certainty and clarity’.

When Theresa May’s Article 50 letter was published, far from expounding a ‘hard’ stance, it echoed the tone of the white paper. The letter opened by emphasising that the Brexit vote “was no rejection of the values we share as fellow Europeans”, and that at the end of the two-year negotiation period we want a “new deep and special partnership”. Throughout the letter, there are seven separate repetitions of the hope for a “deep and special” new relationship with the EU, softening the edges of the Prime Minister’s urging for a ‘hard’ Brexit. The Prime Minister has now in fact rebranded the process as a ‘clean’ Brexit – but are all these words merely empty semantics?

A “new deep and special partnership”

With regards to the influence of the hard-line Brexiteers in the government’s decision making, it has been noted by many critics that the question of immigration, which was such a significant criterion of the Leave campaign and one of the key concerns of those opposed to a ‘hard’ Brexit, was actually not specifically addressed in the Prime Minister’s Article 50 letter; the issue was only indirectly referenced in terms of its status as one of the “four freedoms of the single market” – the freedom of movement. The letter does, however, state with certainty that the UK will no longer be a part of the single market, leaving the question of freedom of movement to and from the UK ambiguous, but not completely aligned with the unwavering stance of the Leave campaign.

Nonetheless, the government’s decision that the UK will leave the single market has been honed in on as one of the most undesirable and controversial elements of what opposition parties such as the Lib Dems and SNP insist is still very much a ‘hard’ Brexit. Tim Farron said that “choosing to take us out of the single market before she has even tried to negotiate” is a clear indication that “Theresa May has chosen the hardest and most divisive form of Brexit”, and Nicola Sturgeon tweeted on 29th March that “today, the PM will take the UK over a cliff with no idea of the landing place”.

The UK will no longer be a part of the single market

But to consider one of the only truly tangible actions that the current government has taken so far in beginning the process of change within the UK, the preliminary decisions made in the repealing of EU law have not been as revolutionary nor significant as the opposition to government would claim. The area in which the UK government has been the most decisive so far is in the repealing of EU law. On the 30th March a white paper of the ‘Great Repeal Bill’ was published. The Brexit Secretary David Davis has said that this Bill would allow the UK Parliament to scrap, amend and improve EU laws; in response to the far-reaching changes it would bring into place, the Labour Party has warned that the Bill has been compiled and is being pushed forwards without proper scrutiny by Parliament. Labour’s concerns about Parliament’s potential lack of influence in future legislation is heightened by the government’s controversial plans to give ministers the power to make changes to some laws without full Parliamentary scrutiny.

However, to stand back from the political dispute, it becomes apparent that, with regards to its capability to bring in sweeping changes, the ‘Great Repeal Bill’ is named as such, not because it would actually be able to immediately change EU laws, but because it will repeal the European Communities Act (which legislated for the incorporation of European Union law into the domestic law of the United Kingdom); it will initially only turn EU laws into UK laws under the full control of our Parliament. Then, after the UK has left the EU, it could make changes to those laws if it chose to do so.

The government seems to be trying to avoid the scenario which would bring about the ‘hardest’ Brexit with potentially the nastiest consequences: the ‘no-deal’ scenario. In the Article 50 letter, it is asserted that if no trade deal was reached, the UK would revert to trading on World Trade Organisation terms. These terms are far less favourable than trading within the single market, and their sudden imposition would likely mean tariffs and customs checks. It is difficult to see how hard borders and customs checks between Northern Ireland and the Republic could be avoided if these terms were used – this would indeed be a ‘hard’ consequence of Brexit if negotiations were to take this turn.

If no trade deal was reached, the UK would revert to trading on World Trade Organisation terms

The 1998 Good Friday Agreement between the UK, Northern Ireland and the Republic refers to both Irish countries as “partners in the European Union” and their open border is tied in with their membership of the single market. Nevertheless, the fluid border between the Republic of Ireland and Northern Ireland existed long before either country’s EU membership. The Irish foreign minister Charlie Flanagan said that “the Good Friday Agreement remains the foundation stone of our peace, and anything adverse to that agreement will not be acceptable”, urging the government to commit to maintaining the Common Travel Area between Northern Ireland and the Republic.

Both the January white paper and the Article 50 letter explicitly state that the government wants the protection of the Common Travel Area between Ireland and Northern Ireland, and the hard-won peace between the countries is to be prioritised and fought for in negotiations. Theresa May even went so far as to cause controversy with her provocative comment in the Article 50 letter that “in security terms a failure to reach agreement”, which would lead to the aforementioned ‘no-deal’ scenario and great uncertainty for both the UK and Ireland, “would mean our cooperation in the fight against crime and terrorism would be weakened”. In response to this, Donald Tusk warned that Theresa May was attempting to use security as a “bargaining chip” and that it would not be accepted by the EU as a tool in negotiations.

Donald Tusk warned that Theresa May was attempting to use security as a “bargaining chip”

To consider the response of members of the EU Parliament to the triggering of Article 50, it begins to seem like the primary supporters of a ‘hard’ Brexit are in fact those within the EU, rather than our own Prime Minister and her government. Donald Tusk has warned the Brexit negotiations could become “confrontational” at times, and Guy Verhofstadt, the European Parliament’s Brexit negotiator, has stated that there could never be a situation where it is better to be outside the EU than inside. The Article 50 letter described the shape of the negotiations as ideally being one in which the UK could determine its future position and future trade deal “alongside” determining the terms of our withdrawal from the EU. However, the chief negotiator of the EU Commission, Michel Barnier, insisted that these two processes cannot be negotiated in parallel. Therefore, the UK’s exit conditions should be agreed before negotiating any future relationship and trade deal, rather than at the same time, which could leave the UK in limbo for an extended period. It is such attitudes on the part of the EU that led to Nigel Farage’s hastily amended comment that the Parliament resembled the “mafia”, trying to impose conditions that would be “impossible for Britain to comply with”.

It is to be hoped that the Brexit negotiations, in their current embryonic form, will not resemble the hot-headed tensions over the fate of Gibraltar that occurred in the past weeks. A prospect about which there is some certainty is that the Brexit process will be slow and will involve much of the cut-and-thrust, ad-hoc approach that has been seen in the weeks since the triggering of Article 50. Face-to-face talks are not even expected to begin until late May or early June; no large country has previously succeeded in making trade deals with the EU in less than two years, and considering the UK will be well into the two year time-frame before the ‘exit conditions’ will have been determined and trade negotiations can finally begin, a sudden and eruptive Brexit is unlikely.