What’s the Alternative to a Hard Brexit?

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In the absence of a real alternative to a hard Brexit, the UK is on auto pilot heading toward a cliff. Former Irish Prime Minister John Bruton explains.

I believe conditions can be created in which British voters could decide not to leave the European Union (EU) at all. Ireland should work to create those conditions.

The terms for Brexit set out by British Prime Minister Theresa May will do incalculable damage to this island—politically, emotionally and economically. We cannot simply wait for this to happen. While seeking to mitigate the effects of May’s chosen hard Brexit, we must also do everything we can to ensure there is no Brexit.

Apart from a few open questions, the prime minister has said what she wants: to be out of the single market, out of the customs union and “control” over immigration.

The open questions she has avoided so far are about the financial terms of the divorce, the status of EU citizens living in the United Kingdom and vice versa, and two aspects of a future trade agreement (if there ever is one): namely arbitrating disputes and third-country imports getting into the EU via the UK.

THE NEGOTIATING POSITION

It is unlikely that the Article 50 letter, which Prime Minister May is expected to send to European Council President Donald Tusk later this month, will us tell much more about the UK’s negotiating position than the Lancaster House speech did. So, it is time to start thinking about how the EU will respond to May’s letter.

On the present schedule, the European Council would meet in April to agree the orientation it would give to EU negotiators for discussions with the UK, which would start in June. These details would be agreed by consensus, so every EU head of government would have to be satisfied. For Ireland, the European Council meeting is potentially the most important EU gathering a Taoiseach will ever attend.

In working out the orientation to be given to negotiators, the crucial thing is for the European Council to work out what would be its “best alternative to a negotiated agreement” (BATNA). It is important to have an alternative ready, because there is every possibility that no agreement will be reached within the two-year timeframe for negotiation and ratification of a withdrawal agreement.

The British prime minister said that, for her, no deal at all is preferable to a bad deal. Her BATNA, so to speak, is no deal at all.

donate to nonprofit media organizations“No deal” would mean the UK simply crashing out of the EU overnight, sometime before the end of March 2019. This “no deal” scenario would mean a sudden halt to flights, trade and commerce. There would be immediate, massive currency instability.

From the point of view of pure negotiating tactics, maybe it’s not surprising that May would threaten a “no deal” scenario. But, to do so, in the absence of a well-crafted fallback position is something the UK cannot really afford. It vindicates former Prime Minister Tony Blair’s description of the UK government as “not driving the [Brexit] bus,” but rather “being driven” by partisan and ideological forces it has not tried to control. In the absence of a real alternative to a hard Brexit, the UK is on auto pilot heading toward a cliff.

The EU member that would be worst affected by the UK crashing out of the EU with no deal is Ireland. So, Ireland must use all its imagination and ingenuity to see if a creative way out for the UK and the EU can be found.

SHOULD THE EU OFFER UK VOTERS ANOTHER OPTION?

If the UK government is unable or unwilling—because of domestic politics—to work out a responsible “best available alternative to a negotiated agreement,” then the EU side should do so for it. It should adopt this alongside its line-by-line response to the UK’s demands.

Having a BATNA would also strengthen the EU’s negotiating position. It would provide something with which an emerging deal could be compared. It would also provide a basis on which the UK could reconsider its decision of June 23, 2016, if it wants to do so.

As Blair said, British voters have a “right to change their minds.” After all, politicians are allowed to change their minds, so why not voters? If UK voters, in a referendum, sent their government on a mission toward Brexit, it would be reasonable that the same voters—rather than Parliament—should adjudicate on what will have been achieved (or not) by their delegates.

If voters ever change their minds about Brexit, it will happen slowly and incrementally. Parts of the Brexit scenario, obscured during the EU referendum, will become clearer during the negotiation process. The unavoidable interconnections between EU freedoms and rules will emerge. For this to happen, it will be in the European Union’s interest to ensure there is maximum public understanding of the unfolding talks. Transparency will work in the EU’s favor. A running commentary is exactly what is needed in the interest of public education.

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If the alternative to EU rules is no rules at all, citizens of both EU countries and the UK may come to see European Union membership in a different light. They may, for the first time in many cases, see the EU as something that simplifies their lives rather than the opposite.

The “best available alternative to a negotiated agreement” that the EU should adopt is an offer of continuing UK membership of the union broadly on the basis that the UK was a member in 2015, before former Prime Minister David Cameron’s ill-fated “renegotiation.”

The 2015 terms were generous to the UK. They allowed it to opt out of the euro, of the Schengen region, of justice and policing cooperation, of the Stability and Growth Pact, and of the justiciability in the UK of the European Convention. Furthermore, the UK itself had also decided, without Brexit, that it would have a referendum over any new EU powers. In that sense, the UK was already having its cake and eating it before voters ever decided on Brexit. These 2015 terms should be left on the table by the EU side, but without the unjustifiable UK budget rebate.

Of course, at this stage, the UK would reject such an offer out of hand. But, as the inevitable consequences of Brexit become clearer, public opinion might begin to see merit in it—particularly when compared with the costs of simply crashing out of the EU overnight with no deal at all, which is Prime Minister May’s fallback negotiating scenario.

BUT NOT THAT EASY…

The resistance to keeping such an offer on the table is more likely to come from an existing EU member state. Some members will point to the UK’s insatiable demands—when it was a member—for opt-outs, rebates and exceptions. Arlene Foster’s analogy about feeding crocodiles may come to mind. They will recall Charles de Gaulle’s original veto of UK membership, and his foresight that Britain would never settle in as a member. They might also argue that offering the UK a way back, after it has triggered Article 50, might encourage others to try leaving too.

But if member states sit back and think about it, they will likely conclude that a UK inside the EU is better for the union than a UK outside the EU. This will be so even if a trade deal is eventually concluded with the United Kingdom. Keeping the offer of resumed UK membership on the table would be good politics and good economics for the EU.

The terms of the Lisbon Treaty, however, create some difficulty for this approach.

Article 50 (3) says a country that has sought to leave the EU under that article will be automatically excluded from the union two years after it has triggered Article 50, unless the EU side “unanimously decides to extend the period.”

Article 50 (5) says if a state that has withdrawn for the EU asks to rejoin, it has to do so under Article 49, where the application would have to be ratified by all existing members.

Others may argue that the UK cannot withdraw its Article 50 letter once it has submitted it. This is a matter for the European Court of Justice to decide, but Article 6.8 of the Vienna Convention on treaties explicitly allows revocation of a notice of intention to withdraw from a treaty.

These problems are real but not insurmountable. A political declaration by EU heads of government in April in favor of facilitating an eventual UK resumption of EU membership—on its 2015 terms minus the budget rebate—would create a realistic basis for comparison in the debate about Brexit that, in a sense, is only now starting in the UK.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

Photo Credit: Beeldbewerking

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