Triggering Article 50: the task that lies ahead

On March 29, the Prime Minister will trigger Article 50, starting the official Brexit process. As a result, unless all parties agree to an extension, the UK will officially leave the European Union on 29 March 2019.

The task ahead in these two years is colossal. It is clearly in the interests of both the UK and the European Union (and its 27 remaining member states) that Brexit is orderly. In other words, that to the extent possible, arrangements are made to ensure that agreement is reached in relation to major areas, such as trade, data sharing and data protection, and travel. The UK’s relationship with some particular member states, such as Ireland, will also require special attention, not least to try to find a way to ensure that the Common Travel Area that is so important to the two countries’ continuing relationships of politics, history, trade, friendship and kin can be sustained. All of the remaining EU27 will have an interest in making sure that their citizens, who reside in the UK, are protected and continue to enjoy security in their lives in this country, and of course the same is true for UK citizens living in other EU states.

The reality is that it is in everyone’s interest for the next two years of negotiations to be collaborative, positive and focused on resolving any disputes that may arise. Talk of the EU ‘punishing’ the UK thus seems misplaced. There is nothing to be gained by attempting to mete out punishment, or by creating a political and media storm that leads people to expect such punishment and thus means the UK enters negotiations defensively. This does not mean that Brexit will be cost-free; of course, that will not be the case. One cannot be outside of the EU, ‘unshackled’ (as some might have it) from its laws, court and bureaucracy, but still enjoy all of the privileges of membership. While the Brexit agreement may be favourable to the UK, it will not and cannot be the same as membership without the obligations that come with it. That would be counter-productive, and counter-intuitive.

Similarly, one cannot expect to be able to acquire the immense benefits of, for example, membership of the EU’s internal market without taking on some of the obligations that come with that membership, including some, such as freedom of movement, that are central tenets of the European Union. The EU will have some red lines, and we should reasonably expect that to be one, just as it is with Switzerland and Norway. The UK will have its own red lines, of course, but its negotiating position in achieving these is simply not as powerful as the EU’s. Nor is it as powerful as it was when the UK was securing ‘opt outs’ in recent Treaty negotiations. In that case, the UK held a potential veto over the whole reform; in this, the UK leaves the EU. With or without a deal.

Thus, while ‘tough talk’ might play well to UK domestic constituencies, and indeed to some in Brussels, there will be a common, tacit understanding that this is little more than bluster. Everyone around the negotiating table will want the same thing: the least disruptive, most orderly withdrawal of the UK possible, while still ensuring that the value of being within the EU is clear. Oppositional talk is counter-productive to achieving this common aim. What that will take is hard work, collaboration, frankness, and excellent negotiation. The time for bravado is over; now, the real work must begin.

Professor Fiona de Londras

Professor of Global Legal Studies, Deputy Head of Birmingham Law School