After today, a lot of things, in fact, do not change. Even though we have now officially started the process of leaving, the UK still remains a member state: it still participates in the day-to-day decision-making of the system, it pays its bills. In this way, there’s nothing different from today than there was from yesterday. But, clearly, today means that we started the process that almost inevitably leads to the UK leaving the EU in 2 years’ time, which suggests that we are going to have a lot more focus on the negotiations that are going to start from this point forward.
In terms of that process, this is the day when the UK says: ‘We are doing it’. But then from that point, the EU also needs to decide what it is going to offer to the UK and, I think, that it is going to be the next big step in the next 3-4 weeks.
In terms of negotiations, there are going to be the 3 main stages. There is going to be a period that’s going to run up to about autumn of this year, which will be preparation. The commission who will run the negotiations for the EU side will release their ideas of how everything should work, possibly, on Friday. Then the heads of the other 27 governments need to reach an agreement on what they want to offer in that process, and then that needs to be agreed with the UK. All this will take several months.
It probably will only be at the end of the summer when the proper negotiations begin; those will run for about a year.
Then you have a period at the end of these 2 years, that will be taken up with getting everybody’s agreement. Thus, you probably need to have the approval of all of the member states (it could be possible that you can do it with just a majority of them). Nevertheless, all of them will have to be involved in the process. You will need to have the approval of the European Parliament and then the approval of the UK, which will take the form of a Parliamentary vote on whether they accept the deal, or leave without a deal.
There are these three stages of preparation, negotiation and ratification. In this way, any image you might have of them in 2 years’ time, locked in the room, trying to beat out the last details of the deal, is not a realistic one. That will come much sooner than that point because they need to have people’s approval by the two-year deadline.
There’s a distinct possibility the agreement will not be reached. The UK, even with its letter today, has not been very clear about what it wants from the relationship; it talked in very vague terms and more interested in the things that it doesn’t want than the things it does want. It is possible that one of the other member states might cause difficulty because they have a different situation: an obvious example would be Ireland which is in a very different situation to that of all the other member states.
It could be that the European Parliament decides that it is going to try and get some concessions out of everybody, because its approval is needed. It also might be that the British government either cannot agree amongst itself what it wants, or cannot get the approval of the Parliament for its proposal.
If any of those things happen and we don’t have an agreement then, in two years’ time, the UK leaves without a deal. The failure to reach an agreement is not in itself a way of stopping the UK from leaving. You have two years to try and reach an agreement, and if you can’t, then you leave without one.
Regarding the EU nationals’ rights in the UK, both sides tend to say that they are keen to protect the rights of the EU nationals in the UK and the UK nationals in the EU. Everyone is trying to find an agreement early on.
In any case, there will be some kind of an agreement in principle about these people. There are two other things to be considered. One is – do these nationals enjoy the rights that they currently enjoy? – and that is probably not the case, particularly in terms of access to benefits. The other is – are we going to kick these people out and make them return to their home countries? I think this is what everyone is talking about. The problem is, if the UK leaves without an agreement, then there would be an uncertainty, which would, in turn, leave a bad feeling between the partners, because then it would have to be somebody’s fault. That might then play into using these nationals as ‘bargaining chips’, to use this phrase that’s been going around recently. Even if we say that we have to think about people’s rights and their positions, I think this is not necessary the same as trying to extract some political advantage from them.
I think we already started feeling the effects of Brexit at the time of the referendum: a lot of EU nationals were reporting that the atmosphere had changed, that people weren’t as friendly or accommodating. It is not about the legal status, it is more about what might be acceptable to say to such people.
I think, in terms of when people might start to notice a difference in their legal rights will be at the point when the UK leaves the EU on the 29th of March 2019. Only at that point would you see anyone trying to change what these nationals can do or cannot do. To do it while the UK is still a member state, which it now is, probably causes more trouble than it is worth. At the moment, there will not be any change but, at some point, from two years on, everything will change quite a lot. The problem is that when you don’t know what might be, it is very hard to plan it.
The process is governed by Treaty law and in particular, by Article 50 of the Treaty on European Union.
As we know, it establishes that a member state which decides to withdraw has to notify the European Council of its intention. That is what happened yesterday: the United Kingdom formally did that.
The next thing that happens is that the European Council has to provide guidelines. Draft guidelines are going to be produced on Friday by Donald Tusk. After that, those formal guidelines will have to be approved by the European Council: They will have a meeting towards the end of April in order to do that. In the light of the guidelines, the EU will have to negotiate and conclude an agreement with the UK setting out the arrangements for its withdrawal.
There will be the rather controversial issue of agreeing on an exit bill for the United Kingdom, which has been estimated by the Commission at about € 60 billion although it may end up being considerably smaller.
The kinds of things that will be in that withdrawal agreement would be the rules on, e.g., winding up agencies, and ending the United Kingdom involvement with the various institutions. It will also have to deal with the acquired rights of EU citizens in the UK and vice versa, which is obviously something that needs to be taken care of because a lot of people will be affected by that. On top of that, there will be the rather controversial issue of agreeing on an exit bill for the United Kingdom, which has been estimated by the Commission at about € 60 billion although it may end up being considerably smaller. That will cover things like legal commitments to expenditure that the United Kingdom entered into with other member states as an EU member, political commitments to expenditure and also pension arrangements. Expect that to be politically controversial (even though on the grand scale of things, given the value of the single market to the UK financially, it would be worth the United Kingdom’s time to reach an agreement in relation to that).
A successful vote will have to represent 72% of the member states, and 65% of the population of the European Union.
The negotiation of the agreement is governed by Article 218 of the Treaty on the Functioning of the European Union. Basically, the Commission will be given a lead role here; the Council will authorise the opening of the negotiations. This will take a while - the negotiations will not happen immediately, we can probably expect to have to wait approximately 2 months. The Commission negotiations will be led by Michel Barnier, and it will submit its recommendations to the Council. The Council may address directions to the Commission and if it wants, it can designate a special committee to be consulted by the Commission. You can be sure the heads of the 27 other member states will be keeping a fairly tight eye on the Commission, as this is very important to them. Once the agreement is concluded by the Union, it needs to be approved by the Council acting by a ‘qualified majority’ - a special ‘qualified majority’ that is slightly more elevated than the usually required one. A successful vote will have to represent 72% of the member states, and 65% of the population of the European Union. After that, very importantly, the consent of the European Parliament will also be required, which makes it a vital player. Over the last few days, they have been setting out their priorities.
And then, after that, the treaties will cease to apply to the United Kingdom from the date of the withdrawal agreement’s entry into force, or else in two years, if there is no agreement. Essentially, you are looking at a 2-year deadline, for agreement, although it is possible to extend it unanimously. In reality, the deadline is tighter than that. The other member states don’t need to ratify this particular agreement - they just need to approve it by qualified majority vote in the Council of the EU. But the United Kingdom will need to ratify, and needs time to do that, so, in fact, the negotiations will need to be over in 18 months. Note also that there may be some delay in starting them as well, because of the French Presidency elections and the German Chancellorship elections might intervene. Obviously, with these being the two most important states in the European Union, who happens to be leading them can have a huge effect on the negotiations. So, I expect, in practice, that those elections will delay the start of the negotiations as well.
Negotiations are going to be tremendously detailed, and it could take a very long time. A permanent deal could well take up to 10 years to negotiate.
Complicating measures, it’s not just the withdrawal agreement that needs to be negotiated, there will need to be a separate arrangement which will need to be ratified by all of the member states governing the permanent relationship with the UK and with the EU. I cannot see any way this is going to be done in 2 years; no official I have spoken to expects that to happen - it’s just impossible, I think. So what will certainly be needed is a transition deal, governing the transition for a number of years. Now the European Parliament wants that to last for just 3 years but I think it all depends on how long it takes to get a permanent deal. Negotiations are going to be tremendously detailed, and it could take a very long time. A permanent deal could well take up to 10 years to negotiate.