The notification of Britain's intention to withdraw from  the European Union is the start of a process that takes policy-makers into new and unknown territory.  For the British government and the legislature, it will be a tricky if not perilous path with an unpredictable outcome. Theresa May says she wants a 'global Britain'.  Many others fear that fear that Britain is heading over a cliff.


This article analyses three key timings for that process.

 

The process is complex even for those who know how European policy operates. It probably isn't surprising that there is a lot of confusion and much uncertainty. For example, when will the negotiations begin? BBC Radio 4 is running a 'guide to Brexit' where they advised listeners that negotiations do not start immediately after Wednesday, and the Financial Times predicted that, following Mrs May's letter to Brussels on Wednesday, the actual talks could start in May or June.

The government wants to negotiate a trade deal at the same time as agreeing withdrawal terms, but EU officials say the terms must be agreed first. And then there is the question of when the deal must be sealed. Reports are now suggesting October 2018, in order to give the European Parliament time to vote, and cutting 6 months off the time-frame. Much of this probably does not tally with public expectation.

So how should we understand the Brexit process and are there previous experiences that we can draw on to help us? Indeed there are.

In this article, I draw on my experience of researching EU legislation and trade agreements. Specifically, I will draw on my experience tracking the Anti-counterfeiting Trade Agreement (ACTA) from 2008-2012, and more recently, the Trans-atlantic Trade and Investment Partnership (TTIP) to seek possible paths and timings. I will consider these three questions:

A/ Is the Financial Times correct that negotatiations could start in late May or June?
B/ Sequential or parallel - what should be the process for a trade deal?
C/ How do we get the 6 month cut-off for in the European Parliament?

A/ Is the Financial Times correct that negotatiations could start in late May or June?

There is a good chance that it is correct. If it is wrong, the only option is for a later start rather than an earlier one. I am going to put a date on it, and say that the first opportunity to commence Brexit negotiations will be after the 16 May. If that does not happen, the next opportunity will be after 20 June.

Although Theresa May will write to the EU this week with a formal notification of Britain's intention to exit, it is not Mrs May who will kick off the negotations. The kick off is determined by the European Union - and it is decided not by an individual, but by their process. Rather like in a football match, there are rules about how the game starts – and so there are here.

The EU cannot launch negotiations immediately because it first of all has to decide on its negotiating position. It does this by a well-established process. This process is governed by Aarticle 218 of the Lisbon Treaty, and is mandated by Article 50.

First of all the Council of Ministers adopts Guidelines. These will set out the broad political direction and framework that the Council would like the Commission to follow. The Council will draft these Guidelines at a special meeting on 29 April, as announced by the President of European Council, Donald Tusk.

However, the Guidelines do not signal a start. Next the European Commission has to prepare a Recommendation which goes to the Council. This will include a draft mandate, with details of the content of the negotations, and the how the Commission should handle them. Technically, it is a Recommendation for a Council Decision and in the title it will say something like : " authorising the opening of negotiations between the European Union and the United Kingdom[...]. Inside the square brackets it will say what the negotiation is to do and it may be something along the lines of 'on an agreeement to set out the terms of the United Kingom's withdrawal from the Union'. This Recommendation will state the context for the negotiations, the nature and scope of the negotiations and the procedures. Annexed to it will be the detailed directions for the Commission's negotiating team – also known as the directives from the Council.

This Recommendation is to be adopted by the General Affairs Council, which has two meetings scheduled between April 29 and the summer on 16 May or 20 June. If it's not done by 20 June, there could be a problem, as also highlighted by the Institute for Government .

How likely is it that this schedule could be met? Let's look at TTIP. There was a leaked draft of the mandate – the Commission's Recommendation - dated 14 March 2013 and the directives were adopted by the Council on 14 June 2013. At that Council meeting, TTIP was a 'B' point meaning that it was the subject of political debate, and the mandate was amended. It's worth noting that work on TTIP had begun in November 2011, so both sides had quite a lot longer to prepare.

Although there has been preparatory work in Brussels on Brexit, it is a much shorter timescale. On that basis, the 20 June may be the one to pencil in the diary.

After the Council gives the go-ahead, when could negotiations actually begin. If we look at ACTA, the mandate was adopted by the Council on 14 April 2008 and negotiations began on 3 June 2008. With ACTA, a US-Japan initiative, the European Commission was not in the driving seat, but with Brexit, it will be. In absence of any other data, we could take the 6-7 weeks timeframe as a rough guide, that would put the start of negotiations into late July – which will be tight, if Brussels takes its usual summer holiday.

However, the Institute for Government has suggested that there will need to be a summit with the UK and EU 27 to agree to how to run the negoatiations, before the Commission can finalise its Recommendation. If so, negotiations will almost certainly not begin before the autumn.

B/ Sequential or parallel - what should be the process for a trade deal?
Article 50 calls for the agreement to set out the arrangements for withdrawal, taking account of its framework for the future relationship with the EU. The agreement on withdrawal from the Union will only concern the terms of departure. It will address matters such as how much the EU owes in outstanding fees, rights of the EU citizens in the UK and UK citizens in EU Member States, and the nature of a future trade agreement. It will state what type of agreement – and maybe what some refer to as the modalities of the agreement – but my interpretation of the Lisbon Treaty and the EU processes suggests that an agreement delving into the detail of the future trading relationship will require a separate process.

EU trade negotiations are governed by Article 207 of the Lisbon Treaty, which deals with common commercial policy. Negotiations conducted under Article 207 must also follow the process established by Article 218. That means that trade negotiations also need Guidelines, and a mandate from the Council to the Commission, but the Trade Policy Committee, which is responsible for the EU's common commercial policy will have to scrutinise the mandate before it is authorised.

This process difference suggests that the future trade relationship between Britain and the EU will have to be done within the context of a separate trade agreement. It also suggests that the trade negotiations cannot begin until there is agreement on the principles of the kind of relationship that the two would like to agree, because without that agreement, the negotiating directives cannot be drafted.

Going back to TTIP, the idea to have an 'ambitious' agreement that would boost trans-Atlantic trade was initiated at a meeting in November 2011 between the then head of the European Commission, Jose Manuel Barroso and the former US President Barack Obama. In the next 18 months, work was done by a High Level Group to report and make recommendations on the possible areas that such an agreement could cover and the anticipated benefits. The Commission carried out an impact assessment to evaluate a number of trade policy options. Armed with such detailed information, the Commission was able to recommend to the Council to proceed.

With ACTA, the Commission was first approached by the US authorities on the idea of such a agreement in January 2007, and the negotiating mandate was adopted in April 2008 – around 15 months.

These timeframes would suggest that there is considerable preparation needed for a trade negotiation and it would be usual for both parties – EU and UK – to make their own impact assessments of the options before entering the negotiation room.

On that basis, there will be two sets of negotiations, each one with its own timtetable.

C/How do we get the 6 month cut-off for in the European Parliament?
It has been widely reported that the European Parliament will need 6 months to ratify, meaning that the exit negotations have to be completed by October 2018. Based on ACTA, 6 months seems a fair assessment. ACTA was adopted by the Council of Ministers as an 'A' point ( no discussion) on 15 December 2011, and forwarded to the European Parliament under the consent procedure. The vote was on 4 July 2012.

Some reports suggest that the European Parliament will simply consent to whatever is agreed. This is not correct.

The Withdrawal Agreement for the UK to leave the Union will be forwarded to the European Parliament under the consent procedure. It may seem like a technicality, but it isn't. It means that the European Parliament has two options – either to accept or reject, but it may not amend. The Parliament is under no obligation to consent, and the ACTA outcome - it was rejected by a majority of 478 to 39 with 165 abstentions. It illustrates how the European Parliament may choose to reject an agreement. If that were to happen with Brexit, there would be much higher stakes.

I will write further on the European Parliament process in another post.

Preliminary conclusions

The adoption of the mandate from the Council to the Commission by 20 June is optimistic, but if it is not adopted by then, nothing will happen on the negotiation till the autumn.

Process dictates that there will be two sequential processes for divorce and trade.

Ratifcation by the European Parliament is dependent on the deal being sealed by October 2018, and this timing does not allow for the ratification by the governments of the 27 Member States – hence the chance of Britain falling off the proverbial cliff looks realistic.

* If you want more information on the EU institutions and their processes, I recommend you start with the book by the LSE's Simon Hix 'The Political System of the European Union'.

If you would like to read about ACTA, it is written up in full in my book A Copyright Masquerade.

You can find my work in the other sections of Iptegrity.com. I undertake consultancy and training assignments. You will find my contact details on the 'contact' page.

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Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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