The Brexit Negotiations and the May Government Special Issue

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Catalogue no.: QM-AZ-19-026-EN-N

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Guest Editor’s Introduction

The Brexit Negotiations and the May Government

By: Federico Fabbrini

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General Articles

The Negotiations: Hampered by the UK’s Weak Strategy

By: Emily Jones

Brexit negotiations were always going to be incredibly tough given the complexity of issues and the deep political divides among UK citizens in the wake of the EU referendum. Theresa May’s government compounded these challenges with a poorly executed negotiation strategy: the UK government embarked on negotiations with other EU countries without a clear set of negotiating objectives; it was unable to represent itself as a unified negotiating team; it often found itself on the back foot, responding to EU proposals on both sequencing and content; and UK politicians pursued an ill-judged strategy that did not reflect the nature of the underlying negotiating problem or the UK’s relative power position. These weaknesses were the result of ongoing political divides within the UK cabinet, the wider Conservative Party, and UK Parliament. Domestic divisions impeded negotiations with the EU and ultimately led to the rejection of the Withdrawal Agreement by the UK Parliament. The Brexit negotiations are a powerful illustration of how failure by a government to effectively navigate domestic politics can derail international negotiations.

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After EU Membership: The United Kingdom in Transition

By: Kenneth A Armstrong

One of the fundamental risks of a ‘No Deal’ Brexit would be the loss of a transition period between the United Kingdom’s (UK) departure from the European Union (EU) and the entry into force of subsequent agreements establishing the future relationship between the UK and the EU. The idea of a transitional period of legal and economic continuity and certainty was suggested by the UK Government at the outset of the Article 50 TEU negotiations and accepted (with qualifications) by the EU. However, the early consensus around creating a ‘safety net’ against the parties falling over the cliff-edge of a disorderly departure and a ‘bridge’ to a future relationship changed after the negotiations were concluded. For those opposed to the negotiated Withdrawal Agreement, the transition period – like the Irish ‘backstop’ – seemed more like a ‘trap’ or a ‘trampoline’ to maintain alignment with the EU post-Brexit. The first aim of this article is to analyse what the UK and the EU sought to achieve in the negotiations by agreeing a transition period. The second aim is to consider whether – in combination with other factors – the outcome of the negotiations on a transition period contributed to the failure of the UK to exit the EU as intended on 29 March 2019. The article concludes that the Article 50 negotiation process underestimates the way in which the momentous nature of a decision to leave the EU unleashes political forces that inhibit a smooth and orderly exit and transition.

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The Extension of UK Membership in the EU: Causes and Consequences

By: Federico Fabbrini and Rebecca Schmidt

Article 50(3) TEU foresees that a Member State which has notified its intention to withdraw from the EU will leave the EU two years after the notification, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. In March and April 2019, based on a request by the UK Government, the European Council twice granted an extension under Article 50(3) TEU, postponing Brexit. This article offers a comprehensive analysis of the legal, political and institutional aspects of the most recent extension of the Brexit withdrawal period. For this purpose, it first provides an overview of the law of extension and in particular the relationship between extension, transition and revocation. Subsequently, it analyzes the politics of extension, explaining the reasons that pushed the UK to request it in spring 2019, and the conditions that the European Council attached to its decision allowing extension. Finally, the articles discusses the consequences of an extension on EU institutions, particularly the European Parliament, as well as on the functioning of the EU.

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Brexit and Citizens’ Rights

By: Catherine Barnard and Emilija Leinarte

Immigration was a major point of debate and disagreement in the United Kingdom (UK) during the 2016 Brexit referendum. Following three years of negotiations, the European Union (EU) and the UK came to an agreement – though not yet in force – on the protection of citizens’ rights post-Brexit. This, however, covers only those EU nationals who come to the UK (and vice versa) before the UK’s withdrawal from the EU. The future mobility framework is yet to be determined. This article discusses the citizens’ rights negotiated by the parties and the possible mobility regimes for the future EU-UK relationship. It suggests that whatever future policy is chosen, it will, as the UK government insists, be far removed from the free movement notion under EU law. This is particularly the case in a no-deal Brexit scenario.

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Brexit and the Irish Border

By: Eileen Connolly and John Doyle

The question of the Irish land border was the most problematic aspect of the negotiations on the United Kingdom’s (UK) withdrawal from the European Union (EU). The Irish border aspects of the Brexit negotiations have demonstrated that the border and the maintenance of the Good Friday Agreement is not just an issue for British-Irish relations, but one that now has a strong EU dimension. This article analyses the political impact of alternative proposals tabled during the Brexit negotiations on Northern Ireland and the question of the Irish Border. It places this discussion in the post-conflict context and in the highly politicised nature of the Brexit referendum debate in Northern Ireland. It examines how the issue was framed, following a tortuous negotiation process, in the draft Withdrawal Agreement of 2018 and the ultimate failure of the UK government to ratify that agreement in Parliament. It evaluates the political impacts of the crisis in British politics caused by Brexit and the way in which Brexit has undermined the political stability created by the Good Friday Agreement and at the same time changed the discourse on Irish unity. It argues that failure of the British Government to accurately assess the EU27 position is at the heart of their failure to negotiate a Withdrawal Agreement, for which they could build UK parliamentary support. It is this failure of political judgement that has led to the rejection of the negotiated Withdrawal Agreement and continued to block agreement on a way forward, in the period prior to the October 2019 deadline.

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Brexit and Trade Issues

By: Paola Mariani and Giorgio Sacerdoti

This article explores the post-Brexit EU-UK trade relations as they can be anticipated on the eve of the approaching exit day on 31 October 2019. A key piece of the Brexit negotiation concerned the issue of future trade relations between the UK and the EU after the withdrawal. The first part of the article discusses the framework of EU-UK future trade relationship as it emerges through the stand taken by the parties during the negotiations and in the final acts, the Withdrawal Agreement and the Political Declaration. In its second part, the article focuses on WTO constraints to the UK post-Brexit international trade with third countries, including those with which the EU currently has trade agreements in place, which will become inapplicable to the UK upon its exit from the EU. The analysis shows that taking back control over the trade policy will not be an easy task for the UK, leaving the EU with or without a deal.

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Brexit and Security

By: Ben Tonra

The article opens with a brief review of the UK’s central place in European security and defence but highlights its ambivalent position towards security and defence cooperation within the EU. It tracks the impact of Brexit on EU debates and the catalytic effect that this appears to have had on a substantive acceleration in EU defence cooperation over the last three years. After highlighting the need for a continued security and defence partnership, the article goes on to identify – first from an EU and then from a UK perspective – the possible scenarios for such cooperation. It notes the very limited intersection of these scenarios and sets out the likely horizon for future negotiations. It concludes by suggesting that both partners – while suffering a net loss as a result of Brexit – nonetheless have vital strategic interests in crafting a new bilateral partnership.

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The Future of the United Kingdom

By: Sionaidh Douglas-Scott

The article examines the impact of Brexit on the UK’s constitutional settlement, most particularly within the field of devolution. The focus of this article is on devolution, as it argues that the voices of the three devolved nations have been too much ignored in Brexit manoeuvres, especially given that Scotland and Northern Ireland voted to remain in the EU Referendum. This article questions whether, in leaving one union (the EU), Britain may in fact destroy its own union (the UK). Does the UK have the constitutional materials to safeguard against this?

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The Future of UK-Irish Relations

By: Etain Tannam

This article examines the impact of Brexit on the British-Irish intergovernmental relationship and places the assessment in the context of the contemporary history of the relationship. In particular it highlights the importance of the intergovernmental relationship since 1985 and its role in the peace process and the Belfast/Good Friday Agreement. First, the importance of the British-Irish relationship and the EU in achieving a peace process in Northern Ireland is examined and the implications of Brexit are assessed. The challenges of Brexit are then outlined, before Brexit’s impact to date is evaluated. Finally, in conclusion, potential methods of managing the relationship between the UK and Ireland after Brexit are outlined and it is argued that stronger use of the British-Irish Intergovernmental Conference is necessary to ensure future cooperation, as well as developing stronger institutional links across a range of policy areas.

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The Future of the EU27

By: Federico Fabbrini

This article examines the future of the European Union (EU) beyond Brexit, contrasting the unity of the EU27 in the Brexit negotiations with the disunity that emerged among the EU27 in the management of the euro-crisis, migration crisis and rule of law crisis. The article overviews the efforts to restore a European consensus that have been made in the context of the debate on the future of Europe, but underlines how the emergence of strong regional alliances – and the political polarization resulting from the recent European Parliament elections – have challenged this rhetorical exercise. As such, the article considers alternative scenarios for the future of the EU27 and suggests that, while the strength of path dependency cannot be underestimated, the EU may be moving towards greater differentiation, if not outright decoupling among its Member States.

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