It seems possible that, if the necessary conditions are created, British voters could decide not to leave the European Union at all
And Ireland should work to create those conditions. The terms for Brexit set out by Theresa May will do incalculable damage to the island of Ireland – politically, emotionally and economically. We cannot simply wait for this to happen. While seeking to mitigate the effects of ‘hard’ Brexit, we must also do everything we can to ensure that there is no Brexit.
May has outlined the future she wants for Britain: out of the single market, out of the customs union, and ’control‘ over immigration. But she has avoided a few questions that remain open: the financial terms of the divorce; the status of EU citizens living in the United Kingdom, and vice versa; and two aspects of a future EU-UK trade agreement (if there ever is one), namely arbitrating disputes and addressing the issue of third-country imports getting into the EU via the UK.
It is unlikely that the Article 50 letter that May will send to the European Council President this month will tell us much more about the UK’s negotiating position than January’s Lancaster House speech did. So it is time to start thinking how the EU is going to respond.
The European Council is supposed to meet in April to agree on the guidance it will give to EU negotiators for discussions with the UK, which are scheduled to start in June. Every EU head of government needs to accept the orientation. For Ireland this April meeting is potentially the most important European meeting a Taoiseach (Irish prime minister) will ever attend.
The crucial thing for the European Council is to work out is what negotiators call the ‘BATNA’ – the best alternative to a negotiated agreement. It is important to have an alternative ready because there is every possibility that no agreement will be reached within the two-year timeframe.
Mrs May has said that, for her, no deal at all is preferable to a bad deal. Her BATNA is no deal at all.
‘No deal’ would mean that the UK simply crashes out of the EU overnight, sometime before the end of March 2019. This scenario would mean an overnight halt to flights, to trade and to commerce. There would be immediate, massive currency instability.
From the perspective of pure negotiating tactics, May could be simply voicing threats. But to do so without a well-crafted fallback plan is something the UK cannot really afford. It vindicates former prime minister Tony Blair’s description of the UK government as “not driving the (Brexit) bus”, but rather “being driven” by partisan and ideological forces it has not tried to control. Without a real alternative to a hard Brexit, the government is on autopilot, heading towards a cliff.
The EU country worst affected by the UK crashing out of the EU with no deal is, of course, Ireland. So Ireland must use its imagination and ingenuity to find out a way out for the UK and the EU.
However, it is reasonable to ask whether the EU should offer UK voters another option.
If the UK government is unable or unwilling, because of domestic politics, to work out a responsible BATNA, the EU should do it on the government’s behalf. The 27 remaining member states should adopt it alongside their line-by-line response to the UK’s negotiating demands.
Having a BATNA would also strengthen EU’s own negotiating position. It would provide something with which an emerging deal could be compared. It would also provide a basis on which the UK could reconsider its decision of 23 June 2016, if it wants to do that. As Blair said, British voters have a ”right to change their minds”. After all, politicians can change their minds – so why not voters?
If British voters do ever change their minds about Brexit, it will happen slowly and incrementally. Parts of the Brexit scenario, obscured during the referendum campaign, will become clearer during the negotiations. The unavoidable interconnections between the EU’s freedoms and rules will emerge. It will be in the EU’s side of interest to ensure that there is maximum public understanding of the unfolding negotiations. Transparency will benefit the EU.
If the alternative to EU rules is no rules at all, citizens in both the EU countries and the UK may come to see the EU membership in a different light. They may, for the first time, see the EU as something that simplifies – not complicates – their lives.
In my view, the EU’s BATNA is an offer to continue the UK’s EU membership under the same terms as in 2015.
And these terms were generous. They allowed the UK to opt out of the euro, of Schengen, of police and judicial cooperation, of the Stability and Growth Pact, and of the Charter of Fundamental Rights. The UK itself had also decided that it would have a referendum on any new EU powers. In that sense the UK was already having its cake while eating it, before even deciding opting for Brexit. These terms should be left on the table by the EU – but without the unjustifiable UK budget rebate.
At this stage the UK would reject such an offer. But, as the inevitable consequences of Brexit become clearer, British public opinion might begin to see merit in it, particularly when the offer is compared with the costs of simply crashing out of the EU overnight.
Resistance to such an offer is more likely to come from some EU member states. Some members will point to the UK’s insatiable demands when it was a member, for opt-outs, rebates and exceptions. They will recall former French president Charles de Gaulle’s original veto of British membership, and his foresight that the UK would never settle in as a member. They may also argue that offering the UK a way back, after it has triggered Article 50, could encourage others to try the same approach.
But if these members sit back and think about it they will, I believe, conclude that an EU with the UK is better than one without, even if a trade deal were to be eventually concluded. Keeping the offer of resumed British membership on the table would be good politics and good economics for the EU.
The terms of the Lisbon Treaty do create some problems for this approach. But they are not insurmountable.
Article 50 (3) says a country that has sought to leave the EU under that article will be automatically excluded from the EU two years after it has triggered Article 50 unless the EU side “unanimously decides to extend the period”.
Article 50 (5) says that if a state that has withdrawn from the EU asks to re-join, it has to do so under Article 49. This means the application would have to be ratified by all existing members.
Others may argue that the UK cannot withdraw its Article 50 letter once it has sent it. This is a matter for the European Court of Justice to decide, but Article 6.8 of the Vienna Convention on treaties explicitly allows revocation of a notice of intention to withdraw from a treaty.
These problems are real but manageable. A political declaration by the European Council in April would create a realistic basis.
The real debate about Brexit – and whether it will really happen – has barely begun.
*Prime minister of Ireland (1994 - 1997), EU ambassador to the United States (2004 - 2009) and trustee of Friends of Europe
**First published in europesworld.org