The next stage of the Brexit negotiations hinges upon two words: “sufficient progress”.
At the European Council meeting on October 19 and 20, leaders of the EU27 will review developments in the Brexit negotiations and establish whether they believe enough progress has been made in the first phase of talks to move on to the second phase. That would allow discussions to begin on the future relationship between the UK and the EU.
The term “sufficient progress” is embedded within the European Council’s negotiating guidelines for Article 50 – the part of the EU treaty which governs how a state leaves the bloc. It is born out of the EU’s phased approach to the Brexit negotiations, which was later confirmed by both the EU and the UK in June 2017.
The ongoing first phase of Brexit negotiations is focused on finding solutions to three key issues: the status of UK citizens in the EU and EU citizens in the UK, the border between the Republic of Ireland and Northern Ireland, and the settlement of the UK’s financial obligations.
Agreeing whether there has been been sufficient progress means solving these three key problems. What the agreed solution ought to look like, however, is more elusive.
After a meeting with the British prime minister, Theresa May, on September 26, Donald Tusk, president of the European Council said there is no “sufficient progress yet. But we will work on it”. The European Parliament, which will have to agree to the final Brexit deal, approved a resolution on October 3 confirming that sufficient progress had not yet been made on the negotiations. On October 12, at the end of five rounds of Brexit negotiations, Michel Barnier, the EU’s chief negotiator, said he was not in a position to recommend that the European Council open discussions on the future relationship between the UK and the EU27.
From the EU’s perspective, the Brexit clock is ticking and delaying the process is not to its advantage. The earliest the UK can expect the EU27’s green light to move to the second phase of the negotiations is December 2017, after the next European Council meeting.
Some reports suggest that at the end of the October Brussels summit, the EU27 may conclude that while sufficient progress has not yet been made, work can nevertheless start on the EU side to prepare for the second phase. Under this scenario, the EU27 would begin talks among themselves about a transition period and future trade agreement, but not start talks with the UK about it yet.
Finding a way through
The challenge for the EU is how and when to agree that there has been sufficient progress without crossing its own red lines on citizens rights, the island of Ireland and the UK’s financial obligations. This means not offering too many concessions to the UK government but enough to avoid weakening May’s position further. The goal is an orderly British withdrawal on March 30, 2019.
The challenge for the UK is how to convincingly show the EU27 that sufficient progress has been achieved on the three key issues in order to start negotiating a post-Brexit trade deal with the EU – but without alienating Brexit supporters at home.
For the EU, the phased approach stems from a desire to avoid uncertainty and build trust so that any unresolved issues from phase one are not used as bargaining chips in phase two and a final agreement is achieved at the end of the process. The EU’s commitment to the principle that “nothing is agreed until everything is agreed” leaves the door open to that possibility.
There is not a clear-cut definition of what sufficient progress ought to look like. This absence of a defined template affords the EU some flexibility in moving forward, as long as the deadlock on the UK’s financial settlement and Ireland can be overcome and the solutions are built on clarity and trust.
Clock ticking on a trade deal
For the UK government, the phased approach is an obstacle to its key priority: negotiating its future trade relationship with the EU. It sees the EU’s refusal to agree that sufficient progress has been made as a delaying tactic.
The decision to agree that sufficient progress has been reached is the EU27’s prerogative, which illustrates the asymmetry of power built into the Article 50 process. The article was designed not to facilitate a country’s exit from the EU.
May’s conciliatory Florence speech on September 22 and her latest diplomatic offensive – which included a dinner with Tusk, Barnier and Jean-Claude Juncker, the EU Commission’s president – illustrate the UK’s current predicament.
Some progress has been achieved in citizens’ rights and Northern Ireland, but the financial settlement is at a deadlock and the EU27 are united in ensuring that the UK meets its financial obligations. This means that clarity and detail on the British financial liabilities, continued progress on citizens’ rights and Northern Ireland and trust upon which to build a post-Brexit relationship, is what sufficient progress probably means at the moment. This is the hurdle that the UK government must successfully jump.
With domestic public opinion more open to compromise and less willing to accept a “no deal scenario”, the British government has a window of opportunity to justify why meeting the requirements of sufficient progress is a more reasonable exercise than jumping off a Brexit cliff. Whether the prime minister’s own divided party would follow this narrative is difficult to predict.