Theresa May was only a little girl when Neil Sedaka’s plangent song “Breaking up is hard to do / Now I know / I know that it’s true” was a Number One hit.
Britain has announced it wants to break up with Europe, but it is turning out to be a harder to do than anyone was told during the Brexit campaign.
The new Ministry for Brexit, with its Orwellian title, is advertising for press officers, but the real winners in the next period will be lawyers, as the divorce settlement between Britain and Europe is going to take far longer than the most protracted High Court divorce battle ever seen.
What is beyond doubt is that the UK is legally bound to follow its Treaty obligations and negotiate its withdrawal under Article 50 of the EU Treaty. That is a matter of law, and the UK respects the legal obligations under any Treaty it has signed. So far, Prime Minister May has not invoked this article.
Article 50 talks are, in the first instance, about how Brits working among the 33,000 Commission officials, or those already retired, are treated in terms of pensions and moving the EU Medicines Agency and European Banking Authority out of London. This produces a so-called withdrawal treaty.
The talks are meant to finish in two years, and much depends on whether the withdrawal treaty goes further and seeks to define in legal terms the basis on which the UK does business with the EU on trade, residence, work and travel rights of the more than 2m Brits who live in Europe, or the 350,000 French who live in Britain, as well as access to the Single Market and passporting rights for City firms.
Xavier Rolet, boss of the London Stock Exchange, boldly claimed in the Financial Times that the City could not be deprived of its lucrative business in trading and clearing euros without a change in the EU Treaty. But once Britain is outside the EU, the City’s euro traders and clearing businesses can no longer look to the European Court of Justice or a British Prime Minister defending City interests in the European Council.
Jean-Claude Piris, the EU’s former legal chief, notes that: “the two-year time period for the withdrawal negotiation leaves the UK at a big disadvantage. When the UK becomes a third state vis-à-vis the EU – two years after triggering Article 50 if there is no agreed withdrawal treaty – it loses the benefit of the EU Single Market and that of the many trade agreements concluded by the EU with other states. It would therefore face EU external tariffs, which are on average only about 3-5 per cent, but are higher for some products.
His colleague professor Marise Cremona, co-director of the Academy of European Law, agrees that nothing can happen until Article 50 is invoked, and she thinks time should be allowed for the British government to undertake the massive reorganisation of Whitehall needed to start the work of extricating the UK from the EU.
Until Article 50 negotiations are finished, Cremona says much “depends on the UK taking a constructive stance and recognising its continuing responsibilities as a Member State, not seeking to go it alone before leaving the EU. If the UK simply tries to see how much it can get away with, it will leave in a significantly worse position.”
Chancellor Philip Hammond has said concluding deals that do not disadvantage the UK can take up to six years once the initial Article 50 withdrawal treaty is in place, and Jean-Claude Piris estimates a five to 10 year period.
The period between Britain first applying to join the then EEC in 1961 and accession in 1973 was 12 years. The process of leaving may not be much shorter.