Former ECJ judge: Both sides share responsibility for this Brexit mess

We have entered the age of instantaneous soundbite politics, and long-term vision has disappeared. It shows in many things, Brexit included. As the March deadline draws nearer, both parties in the negotiations fight to deny their responsibilities. They could however have done much better.

Since June 2016, the UK government has repeatedly proclaimed its will to create a very deep economic relationship with very light institutional constraints. One can call this vision a “unicorn,” “cakeism,” “cockooland,” but the basic fact remains: such a system cannot exist. Incredibly, this reality is not widely accepted yet. Worse, both main parties in the UK have refused to recognise this, and more than two years were lost. This constitutes an extremely bad basis from which to ask for any postponement of the Article 50 deadline, especially when it risks creating new political and economic problems.

Meanwhile, the EU has repeatedly proclaimed that Article 50 imposes a hard separation between the settlement of the past relationship and the definition of the future one. Unfortunately, it very quickly added elements of the future to the negotiation about the past. This is apparent on the Northern Ireland “backstop,” and rules over geographical indications on goods. The most savvy EU negotiators know they have been inconsistent, and that’s why they have tried to camouflage as much as possible these elements as transitory in the latest version of the Withdrawal Agreement. However, transitory provisions, even stretched to the utmost, cannot remain in force for all eternity, and this is precisely what the provisions on the backstop and geographical indications seek to do. They remain as long as there is not something else agreed by both parties. Furthermore, as long as the transition phase applies, these provisions are not necessary. If this sounds confusing that’s because it is.

Both London and Brussels tend to underestimate the costs of their incoherence, which are huge. What could have been a rational negotiation, with very limited costs, has become largely nonsensical and extremely damaging. Due to huge uncertainty, millions of people face instability in their daily life. Economic damage is spreading, not only in the UK but also on the continent. And political damage, already evident in the UK, is now threatening the upcoming European parliament elections.

A “technical” postponement of the Brexit deadline, going to three months, is easy. Going beyond that opens huge legal uncertainties about the election (or not) of UK MEPs, the majority threshold inside the European parliament, the constitution of political groups within in, and so on. A European election in the UK could quicken the political destabilisation. Brexit will become an election topic in other countries. It will thus interefere with other issues on the agenda of the European Council. On top of all this, the economic uncertainty for business will remain. Any substantial postponement thus requires that Britain actually faces up to its options and takes a decision, though a general election or a second referendum. There must be a clear exit strategy if Britain is to leave, and serious commitments with deadlines. Otherwise, Article 50 extension just offers a new opportunity to kick the Brexit can further down the road.

It is striking how many people tend to criticise Article 50 without taking into consideration its main objectives. In 2002, the negotiators of the Lisbon Treaty felt that any member state’s withdrawal would be profoundly destabilising for the EU. They thus required strict negotiating guidelines and a hard deadline of two years. They also felt that the exit negotiations should be clearly separated from the future relationship. We can now see that both anticipations were quite right. Difficulties arise when these principles are abandoned.

Yet both parties to the negotiations have disregarded these objectives. The UK has wasted an incredible amount of time, and damaged citizens and enterprises. The EU has destabilised the framework of the negotiations, because it has imposed a legally dubious and biased structure. Both approaches increase the risk of an accident.

The UK should show more realism, and the EU more flexibility. Their combined mistakes could easily lead to a toxic no-deal or a toxic Remain. In any case this is not the end, but only the end of the beginning. None of us will like what lies ahead, which will be endless recriminations and fights at all levels about what comes next. Now, a never ending Brexit civil war, that would really be a very special place in Hell, wouldn’t it?