Brexit and the ‘Divorce’: as if the United Kingdom remains in the EU…

On 8 December the Commission reported that sufficient progress has been made in the ‘divorce’ negotiations with the United Kingdom (UK), the first phase of Article 50 TEU. Most probably, the European Council will decide on 15 December that we can start the next stage of the negotiations (‘future relations’).

Analysing the outcome of the negotiations on the three major points –EU citizens’ rights, the border between Northern Ireland and Ireland, and the UK’s financial obligations– one clearly gets the impression that the situation, after the formal withdrawal of the UK at the end of March 2019, will not change that much. In the accompanying Communication of the Commission, as well as in the Joint Report from the negotiators of the EU and the UK, several times the reference is made –in the parts regarding the Financial Settlement– to a situation ‘as if the UK had remained in the Union’. That qualification does in fact characterise the overall content of the (provisional) agreement between the EU and the UK.

It looks as if the UK Government has severely underestimated the position of the EU during the divorce negotiations. For obvious reasons, the EU claimed the continuation of the rights of legally residing EU citizens in Britain (the same of course goes for the situation of British nationals elsewhere in the EU). The EU also claimed that the UK should comply with a number of important financial obligations on the short and medium term. As to the issue regarding the border between Ireland and Northern Ireland, it was in a way a mutual interest to have that border –for the moment– made as ‘invisible’ as possible.

However, a divorce resulting in a quasi-membership? That sounds a bit odd…

So much is clear that we will indeed need a transitional period before the ‘de iure’ withdrawal of the UK –at the end of March 2019– will also have a ‘de facto’ effect.

Furthermore, it is plausible that those in the UK aiming to accomplish a ‘soft Brexit’, Theresa May being one of them, will try to negotiate an arrangement with the EU, the content of which will remain ‘as close as possible’ to the essentials of the UK’s present membership.

Certainly, there are a number of issues on which also ‘soft Brexiteers’ do not want to make concessions:

  • the UK wants its sovereignty back;
  • the UK doesn’t want to participate anymore in the internal market and customs union cooperation;
  • the UK wants to develop its own migration policy.

However, all three statements can be called into question:

  • First, in the globalised world, where we are living in and where ‘security’ issues in the widest sense (defence, combat of international crime/terrorism but also asylum/migration and climate/environment/energy) are -and will remain- subject to international discussions and agreements, no country can be considered as fully sovereign anymore;
  • Second, the UK is in favour of keeping access to free movement of goods, services and capital (the City!), yet rejects the working of the fourth fundamental freedom of the internal market, free movement of persons. That said, the objections against free movement of persons are –and have always been– a dubious point in the reasoning of the UK. In fact, the arrangement elaborated in February 2016 by the European Council to the benefit of the UK, provided the UK administration a more than adequate control over the working of this fundamental freedom. It is a mystery why the at-the-time British Government kept that arrangement out of the campaign in the run-up to the referendum of 23 June 2016;
  • Finally, already at present the UK has the option not to participate in the –whole– area of the freedom, security and justice cooperation of the EU, asylum and migration policy included.

So, once more it looks as if the former British Prime Minister, David Cameron, didn’t have thought through the consequences of a withdrawal when he promised in Spring 2015, for internal party reasons, to organise a national referendum about the British EU membership.

Anyway, except when a ‘hard Brexit’ will occur, one may indeed expect that the UK will get out of the next round of negotiations at best a ‘future relations’ deal which, as regards content, is relatively close to the modalities of its present membership.

It seems that the UK with such a deal –quality wise– is worse off compared to the position it has now. Moreover, the UK will by then have become a third party, not involved anymore in the future development of the cooperation it is participating in.

Is such an outcome worth the whole effort and all energy spent, at both sides?

Let’s hope that the potential scenarios resulting from the UK withdrawal can still be the subject of an intensive British public debate in 2018. It is not yet too late.

Jaap de Zwaan, TEPSA Secretary-General