Brexit Institute News

Workshop on Moving on? from Divorce to Future EU – UK Relations

By Sose Mayilyan and Annelieke Mooij , PhD Students, Dublin City University

On 7 December 2017 the DCU Brexit Institute organised, in partnership with Ibec, a workshop on “Moving on? From the Divorce to Future EU – UK Relations”. This was a general survey of the first phase of the Brexit talks, concluding a series of workshops addressing the three key issues which had to be addressed before moving on to the second phase. (As it happens, on 8 December, the morning after the workshop, it was revealed that an agreement had been reached that apparently signalled sufficient progress to allow the talks to move on to Phase 2.)

Opening keynote speech by Pat Cox (former President of the European Parliament)

In his speech Mr. Cox laid down the questions for the roadmap to the future. The main principles to cover are the future status of EU-law, law as an anchor and the question of the Irish border. The main principle to adhere by is that of dialogue. The UK is leaving the EU and will no longer be a member state, but it will not leave the continent. The UK may have lost its empire and thereby lost its own cause. They consider themselves a global brand that is not leaving Europe and will forge new trade deals. Ireland, however, joined as post-colonial state, yet they were economically dependent on exports to the U.K., which has reduced over the years.

Mr. Cox regretted that young people did not vote, although they were generally in favor of remaining. This shows that activism requires more than virtual activism. Tweeting is not enough to prevent a Brexit; it also required people to vote. Brexit now however means Brexit. There is no second vote and the UK will leave the EU. Theresa May’s words – insisting that Brexit means hard Brexit, and that no deal is better than a bad deal – set the tone for the negotiations. Partially this is due to the role of the media: for example, the judges who decided that the House of Commons had to decide to invoke the art. 50 clause, were labelled “Enemies of the People” in the Daily Mail.

Mr. Cox emphasized that it is the power of an ideal that keeps the states together. States are free to voluntarily join the EU, stay in, or even leave – as embodied in Article 50. However, Brexit is a two-act drama. The first act is Article 50 which is happening now. The second act will be the future framework, in which the UK is a third country making a trade deal with the EU. After the UK has left, the deals it will conclude with the EU will fall under art. 218 TFEU, and they will be mixed agreements signed by both the EU and all its Member States. Problematically the member states all need to ratify such agreements. The other possibility is that of no deal and trade under WTO rules. This is not an easy path either. The EU, however, will also wish to safeguard the integrity of its Customs Union and not allow cherry picking.

Mr. Cox’s speech ended on a happier note, predicting that Trumpism and Brexit will energize the EU rather than paralyze it.

Panel discussion

The panel discussion on sufficient progress in the Brexit process was chaired by Dara Doyle from Bloomberg News. It was opened by Karen Banks (Deputy Director-General of the Legal Service of the European Commission), who spoke in her personal capacity. She stressed that Article 50 is not about the legal relationship between the UK and the EU in the future, which can only be defined after Brexit. An agreement defining the future relationship between the EU and the UK will be based on Article 218 TFEU, together with the appropriate substantive legal basis. The agreement which will be concluded between the EU and the UK will be considered an international agreement and will be mixed in nature, meaning that it will have to be signed and ratified by the European Union and all its Member States.

In order to conclude the relevant agreement, some common political understanding should exist about the likely shape of future relationships. Before agreeing on the extent to which acquis communautaire will be applicable, the framework for the future relationship should be considered first. There is no strict mathematical formula to be applied, but it is important to remember that once negotiations enter the second phase, the future relationship framework has to be identified before moving on to the transitional period.

The UK should be allowed to benefit from acquis communautaire only if it takes on corresponding obligations.

The discussion was continued by Kathryn O’Donovan (Trade Policy & International Affairs Executive from Ibec). Presenting Ibec, she noted that despite the existing uncertainty, Ibec is trying to help its members, representatives of the business community, to see how their situation will be in the context of the future relations between the UK and the EU.

She stressed that if the United Kingdom leaves the single market area or the customs union, either of these will have an impact on the customs regulations. The progress on the negotiation of the financial settlement is to be welcomed. However, the fact that negotiations on citizens’ rights have not progressed much is a worrying issue. Another worrying issue is that the negotiating parties are on different pages about what the second phase of the negotiations should include and how long it will last.

The uncertainty in this situation is certainly a concern for the business community. They are particularly worried that the exposure of Ireland is not being taken into consideration, and that the first phase might, in fact, be reopened after October 2018.

There are also other issues, such as aviation, data flows, and energy. On the other hand, members of the business community accept and support the idea that the transitional period should be time-limited, since that will bring much-needed certainty.

The panel was continued by Kenneth Armstrong (Professor of EU law, University of Cambridge), whose research focuses on the governance and institutional structure of the EU in particular, and who has recently authored a book on Brexit.

Prof. Armstrong noted that there is little doubt that the UK will leave the customs union, but that Brexit might be more manageable if the UK stays in the single market. ”Regulatory alignment” is certainly advantageous, but how is it to be achieved?

In the context of recent events, Prof. Armstrong pointed out that some parts of the UK would prefer to remain in the single market while others would prefer to leave, but managing such a differentiated Brexit will be very complicated. In his opinion, recent events showed how different parts of the United Kingdom have difficulty reaching a common position. If a post-Brexit UK were to join the EEA, the main difficulty will be eliminated, and this would be a basis for uniting different parts of the UK. We should start thinking about the transitional arrangement and what it would look like, considering that the legal issues will require much further clarification.

The panel discussion was continued by Ian Cooper (DCU Brexit Institute), whose research focuses on questions of democracy and constitutionalism in the EU, with a particular focus on the role of parliaments. He looked at Brexit from the point of view of the EU-27, asking whether their approach to the process was in their long-term interests. He wondered whether this approach might be a managerial triumph but also a strategic mistake. Whereas the EU has been smoothly competent throughout the process, the UK has been chaotic, reflecting the fact that the UK is still profoundly divided and negotiating with itself over what it wants. However, perhaps the EU’s managerial competence also serves to mask its own uncertainty about what kind of long-term relationship it wants with the UK. Dr. Cooper stressed that the EU was right to insist on a fair settlement of two of the issues in the Phase 1 talks – the Irish border and citizens’ rights – as they directly affect the lives of people. The financial settlement is less important than the other two.

Looking ahead, thinking about different possible future models which are foreseen for UK-EU relations, he stressed that there is no such thing as a generic “associate” membership status for the EU. Every existing model, such as that of Norway or Switzerland, is a product of a particular set of historical circumstances, and is constantly being re-negotiated. Furthermore, the UK has always been a special case in the EU. Therefore, any EU-UK deal will be a “bespoke” deal.

Dr Cooper also talked about the possible outcomes, pointing out that the best outcome for the EU would be the UK staying in the Union. The next best outcome for the EU would be having a soft Brexit, followed by a hard Brexit as a worse option. The worst outcome for the EU, in his opinion, would be UK crashing out of the EU, since this will be an option that will be bad for all actors involved in the negotiations. Therefore, the EU has to think of ways of how to avoid the latter option at all costs.

Dr Cooper concluded his speech with some advice to the negotiators from the EU side. He pointed out that the UK is not a rational actor, since it is divided. He also advised not to second-guess the public opinion in the UK, i.e. not to think, for instance, that taking a hard stance from the EU side would cause the United Kingdom to want to reverse the whole Brexit process. He also noted that the EU should not be worrying about giving away too much, as well as about setting out an example (whether positive or negative) for other prospective withdrawing Member States.

The debate was followed by a discussion with the audience on issues of upcoming elections in EU Member States, the nature of the regulation alignment, the future UK-Ireland relationship and the avoidance of a hard border.

Concluding keynote speech by Alojz Peterle (former Prime Minister of Slovenia and current Member of the European Parliament)

Alojz Peterle started his free-form address by playing Beethoven’s ‘Ode to Joy’ on the harmonica and thereby effectively gaining the attention of the audience. In his address he told of how war broke out in Slovenia after the proclamation of independence. The idea to centralize was a good solution, but it is not the solution to everything. We are in a Union unfortunately no longer in a community. We have seen much political entertainment – including fake news, unfounded claims and pure populism.

The EU was not prepared for Brexit, and that is why it took so long for the Brexit strategy to be prepared. However, and more optimistically, it revealed the complexity of the problem. People now have a better understanding of the Union and what it means to leave. There is, however, the question of Northern Ireland and whether it should get a special status. Also, the Union is comprised of 27 member states, which shows the complexity of the system. Moreover, the discussion of the bill is given too much attention: this should not be a discussion but a matter of accounting. Of course, the agreement will have to be endorsed by the European Parliament, which adds to the complexity of the matter.

Mr. Peterle then stated he does not believe in Brexit. It will happen and it will be costly. A second referendum should however be called for. This would give people a chance to vote on something that is clear. Before the Brexit-referendum there was no clear picture and thus no real choice. No one sees a good future after Brexit except the British.

This keynote address concluded the Brexit event and left us with new questions to answer. What should the EU learn from Brexit? And, more importantly, should the UK have another referendum with the possibility of cancelling Brexit?