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Where did it all go so horribly wrong? The UK’s Conservative government planned to launch into the Brexit negotiations on 19 June with an enhanced parliamentary majority, scoop a plum trade deal and retire to barricade their borders. Instead, the 8 June election left Theresa May fighting for her political life. The Conservatives now depend on parliamentary support from the ultra-conservative Democratic Unionist Party (DUP) of Northern Ireland to bolster a deeply conflicted minority government.

May and her team had assured their EU counterparts that the snap election would not divert attention from the Brexit negotiations. This proved to be a hollow promise. Worse, the election campaign and outcome exposed extraordinary lapses of judgement within the UK government and raised questions of competence that have left European leaders doubting the authority of the UK government to make and uphold negotiation compromises. These shock developments have subtly shifted the power relationship in the Brexit negotiations in favour of the EU negotiating team.

Moreover, within the UK, May’s narrow interpretation of Brexit is facing growing scepticism. This in turn has the potential to bring about a more structural shift in the power balance between the UK and EU. As long as the EU was set on a deal but the UK was prepared to ‘walk away’, the UK enjoyed the upper hand.

It takes two to cooperate, but only one to walk away. However, the focus of attention in the UK has now moved from May’s Brexit agenda of ‘taking back control’ to the practical implications of Brexit for business and for the stability of the Good Friday Agreement. Confidence in her ‘no deal is better than a bad deal’ stance faltered with media discussion of just how bad the ‘no deal’ option might be. In a scenario where the UK needs a deal as badly – if not more – than the EU, the UK loses some of its leverage in the negotiations.

The launch of the second round of Brexit negotiations on 17 July only confirmed the concerns of May’s critics at home and in Europe. There was still a great deal of uncertainty over the UK’s ‘red lines’ and over which issues might be open to compromise. The EU had tabled numerous position papers on key issues, but less than a week before the second round began, the UK government had responded only to one: the rights of EU citizens in the UK.

On July, three further UK position papers were hurriedly published. All are relatively underdeveloped and raise more questions than they answer. Possibly in a move to save face, both sides are representing the second round as about ‘deepening understanding’ rather than striking deals.

For Shadow Brexit secretary Sir Keir Starmer, all this points to a government in disarray.  ‘There is no agreed Cabinet position on vital Brexit issues [and] the negotiating team is not prepared.’ Vince Cable, leader of the Liberal Democrats, has warned that the talks could collapse simply because the government has failed to get to grips with the process. Labour leader Jeremy Corbyn openly mocked the government with a reference to the TV comedy Blackadder with his jibe ‘our cunning plan is to have no plan’.

For EU negotiator Michel Barnier, the ongoing lack of clarity is no laughing matter. He warned that ‘trust’ would need to be built as a foundation for an ongoing relationship.

A chaotic British presence on the opening day of the second round can only have added to mounting European consternation. The EU contingent were armed with well-ordered documents; the UK delegation sat virtually empty-handed.

This round of negotiations is led by three negotiating groups covering citizens’ rights, the UK’s financial settlement and other separation issues.

The question of citizens’ rights ought to be the easiest to resolve, but there are key differences in the position papers issued by the EU and UK respectively. The EU wants UK citizens living in the EU to retain all of their current social, employment and residency rights. However, the UK isn’t offering full reciprocity. Under the British proposal, EU citizens would lose some of those rights, including the right to bring in spouses or elderly relatives.  The UK proposal also offers no guarantees on reciprocal healthcare arrangements for pensioners, or protection for the estimated 45,000 Britons who commute to Europe or travel to the EU for short-term contracts.

The potential storm provoked by UK Foreign Secretary Boris Johnson with his ‘go whistle’ comment on the ‘Brexit Bill’ was averted at the last minute with a government statement recognising in principle the UK’s financial obligations to the EU on withdrawal.  Although the UK has not put forward a proposal of its own on this issue, the EU negotiating team has faced intensive questioning on its position paper ‘Essential Principles on Financial Settlement’.

Of all the matters tabled for the July round, it is the Irish/Northern Irish border issue that has the greatest potential to derail the talks. UK government wants to withdraw from the Single European Market and customs union but to simultaneously avoid re-establishing a hard border between Ireland and Northern Ireland.  However, this ‘hard’ version of Brexit will inevitably create a ‘visible’ border between Ireland and Northern Ireland where the EU’s freedoms of movement of people, goods, services and capital stop and UK barriers begin.

To reconcile a ‘hard Brexit’ with a ‘frictionless’ border, the territory of Northern Ireland or Ireland would have to be invested with a different status to the UK and the EU respectively, or the EU would have to make concessions on freedom of movement and the integrity of its legal order. None of these options is politically viable. The EU is firmly committed to defending the Good Friday Agreement and upholding Ireland’s interests in maintaining an open border.

Moreover, May has engaged in potentially dangerous coalition politics in enlisting the DUP to uphold her minority government. With this she has undermined any credibility of the UK government as an unbiased agent in Northern Irish matters. As Sinn Fein noted, this is a breach of the Good Friday Agreement and has effectively re-opened the UK/Irish constitutional question.

An overarching question on the governance of withdrawal is how the package of agreements could be enforced.  The UK rejects oversight by the European Court of Justice but to date has not proposed any alternative body for dispute resolution.

By Patricia Hogwood, Reader in European Politics at the University of Westminster.


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