As expected, the Supreme Court has told the Prime Minister that she needs to get the authority of Parliament before moving forward to remove the rights of EU citizenship from the British people in line with the referendum result.
She should have done this from day one. Even the most devoted of Theresa May’s fans agree she has a tin ear for handling Parliament as she ploughs on with the hardest of hard Brexits.
No-one knows what will be in the Article 50 negotiations until the UK government sends a letter saying what it wants. But disconnecting from Europe is going to take time, lots of time, with the Supreme Court now making it all take a bit longer.
Once her letter arrives in Brussels it goes to the EU27, who will decide what mandate to give the EU Commission negotiator Michel Barnier when heads of government meet at their June Council meeting.
It is not just Barnier. The EU Council has its own negotiator, the experienced Belgian EU official Didier Seeuws. And then there is the man David Davis called “Satan” in the House of Commons, the European Parliament’s Brexit negotiator Guy Verhofstadt, who is never backward in coming forward.
Then we have the summer break and German elections (24 September). Once there is a new German government and a new French President, they will obviously have a major say on how the EU27 handle this rupture in European history.
The first round of negotiations will be about what can be negotiated. As Boris Johnson rightly says, the UK can only start trade talks with America and any other country after Britain has made its political exit from the EU by April 2019. So do not assume there will be a trade component to Article 50 talks.
The negotiations have to finish by October 2018 to allow the EU27 six months to examine the withdrawal treaty and agree whether to ratify it. The European Parliament and of course the Westminster Parliament also have to accept or reject what has been negotiated.
So there is really only one year – October 2017 to October 2018 – for Article 50 negotiations. They will be devoted to technical arrangements on who pays UK liabilities (pledged EU budget commitments, pensions for Brits who were EU employees, redundancy for all Brits who will lose their jobs, and the relocation of the European Medicines Agency and European Banking Authority and their staffs from London to a city in the EU).
Brussels certainly has said it expects the UK to honour its budgetary commitment for the financial period up to 2020, with figures of €60bn being mentioned. This will be very controversial for May, the anti-Europeans in the Tory Party, and the anti-EU press. The Prime Minister repeated again on the BBC on Sunday that there were some areas of EU cooperation – Europol, security, maybe the Unified Patent Court – where she expected Britain to continue to be part of EU arrangements but that implies paying part of the costs.
Moreover, the ultimate arbitration tribunal for any dispute within the EU, between governments and EU agencies, firms who don’t like a Commission decision, or between governments unhappy with an EU ruling is the European Court of Justice (ECJ). As US firms or Gazprom will confirm, the ECJ can fine companies that operate within the EU even if they are headquartered far from Europe. Thus British firms that plan to keep doing business in Europe will still be subject to EU law and ultimately the ECJ.
Yet Mrs May has repudiated any role for the ECJ. So there may be complex arguments within the Article 50 withdrawal talks about how the UK can stay linked with any EU agencies or do business in Europe without accepting the authority of the ECJ.
The UK has to decide whether it wants to quit the Customs Union and whether the government wants to bring in a visa or work-residence permit scheme that will discriminate against Europeans hoping to come and work in Britain freely.
These are British decisions, but if unilaterally announced before the end of the Article 50 talks, they will colour the response of the EU27. The British government can unilaterally confirm that existing EU citizens in the UK can stay living and working here, but Brussels cannot dictate what new rules France, Spain or other member states should bring in to cover British expats coming to live, work or retire in the sun.
In reality, Barnier’s mandate expires by October 2018 when the draft withdrawal treaty goes to the 27 member governments and parliaments to ratify. It also has to be ratified in Westminster.
Then we have to wait for the new 2019-2024 Commission, Parliament and Council to agree how to start trade talks with the UK. It will be the trade commissioner after May 2019 who will decide.
The hoped for UK-US trade deal will begin its negotiating process later in 2019 and then into the election year in both countries in 2020. A top priority for the US is to prise open the NHS so that US medical firms get a slice of the UK health market, and to export hormone-stuffed meat and chlorine-washed chickens. Whether Mrs May will want to fight an election campaign in 2020 on dismantling the NHS and forcing Brits to eat what tabloids love to call “Frankenstein” food is an open question.
So we are just at the beginning of the beginning of writing the next chapter in Britain’s ever-changing relationship with Europe. A political exit from the EU in 2019 is likely, but it will be many years and at least one if not two general elections before the full separation is achieved.