A guide to Brexit, part 3: Who’ll run the negotiations?

By on 30/06/2016
A guide to Brexit, part 3: Who’ll run the negotiations?

This is part 3 of our guide to Brexit. In this section, we explore who’ll become the next UK prime minister, how they’ll manage events, and the prospects of a general election; and we set out how both sides are building teams of officials to manage this delicate and controversial process.

Part 1 asks: how did the UK get here? In part 2, we explain the system for negotiating Britain’s exit from the EU.  Part 4 examines whether Brexit could be averted; and in the final section, part 5, we explore the potential outcomes and offer some concluding thoughts.

The EU position…

Let’s start where there are the least moving parts: the EU side. The bloc’s goals here are pretty straightforward: minimise the depth and length of uncertainty and instability; preserve the EU’s core principles; and deter others from heading for the exit.

After decades of British recalcitrance and obstructiveness, the referendum result was immediately accepted as final by many leaders: “A little bit of them must be thinking: ‘Thank God we’ve finally got rid of this troublesome child who always wants more’,” comments Sir Paul Jenkins, who was Treasury Solicitor and the government’s chief legal adviser between 2006 and 2014. Hence the desire to move on rapidly to Article 50 talks – but long before these negotiations begin, EU leaders have already set out their red lines on freedom of movement.

Donald Tusk, president of the European Council

Donald Tusk, president of the European Council

Yesterday Donald Tusk, president of the European Council – the national leaders’ forum – insisted that Britain would only win access to the single market if it conceded freedom of movement for people, goods, capital and services. And Merkel and French president Francois Hollande backed him up, Hollande adding that the UK would also have to pay contributions – suggesting a set-up similar to Norway’s arrangement. The statements followed a meeting between the EU’s 27 remaining national leaders, and the EC is now pulling together a set of negotiating positions and assembling a team of officials.

…and why they really mean it

EU leaders have pressing reasons for sticking to these principles. Anti-establishment, right-wing parties are on the rise across Europe – and many are as hostile to the EU as Farage’s UKIP. Both Germany and France face general elections next year, and Hollande in particular is threatened by Marine le Pen’s post-Fascist Front National: le Pen’s father made it to the presidential run-off in 2002, and Marine – having worked hard to detoxify the brand – is polling better than Hollande. With research showing 60% of French voters hostile to the EU, comments Jenkins, “they’ll be desperate to stop Marine le Pen from becoming president, because if she does she’ll have a referendum [on leaving the EU] and it’s game over.”

Facing these insurgent, anti-EU populists, established leaders need to demonstrate that countries making a break for it can’t improve the terms of the relationship with the union. They might not wish to punish Britain themselves, but they have hard political interests in showing that leaving the EU is a painful and fruitless process.

After austerity, a new test for the UK civil service

On the British side, civil servants are gearing up for a job of almost unprecedented scale. “It’s not just about the divorce: the unravelling from Europe, and what that means in terms of legislation,” explains Dave Penman, general secretary of civil service managers’ union the FDA. “We’re also going to have to rewrite a whole raft of [UK] policies and their accompanying legislation, and get into new areas of work such as trade negotiations. It’s such a fundamental challenge to the government and the civil service that it’s hard to think of anything that’s comparable.”

The British government is now bringing together a team of officials to get stuck into this mammoth mission. And they’ll have to face in several directions at once – disentangling political, regulatory and legislative systems in Article 50 talks, whilst working on a future trade relationship and planning how to repatriate policy areas managed by the EU. Some of these will land with Westminster but some, presumably, will be distributed to the devolved administrations – so the Scottish, Welsh and Northern Ireland authorities will be involved.

Having subcontracted trade talks to the EU for 40 years, says Dr Catherine Haddon – a fellow at think tank the Institute for Government – the UK lacks the “detailed legal and trade expertise that we’ll be looking for”, so the new team is pulling in experts from its EU delegation, the foreign office (FCO), home departments and the private sector.

This task, notes Jenkins, will be made harder by the fact that British representation among European Commission staff has declined sharply over the years. “We used to have a great track record of getting people in there, but in recent years you’d have to be bonkers to go and work in an institution that’s constantly under attack,” he comments. “People feared that one day they might not have a job. And they were right.”

Meanwhile, UK departments are beginning to comb through their legislation, regulations and public services – identifying positions to feed into the central talks team, planning new legislation to replace EU law, and working out how to replace delegated EU services such as the Common Agricultural Policy. “It’s hard to imagine a department that won’t be affected,” says Penman. “It’s security, economy, borders, science, the university sector, research, as well as the obvious ones such as business, agriculture and environment.”

Ready to go – where?

The emerging team will be led by Oliver Robbins, currently the second permanent secretary at the Home Office, and initially report to Oliver Letwin – a minister in the Cabinet Office. But Letwin is set to move on with Cameron, making way for a new lead minister appointed by the winner of the forthcoming Conservative leadership election.

Until the Tories choose that new leader, though, the team will essentially be in scoping and consulting mode. “Options must be worked up, but what do ministers want? That requires strong political direction, and we’re not going to see that until we have a new prime minister,” says Penman.

Oliver Robbins, now heading up the Brexit unit in the Cabinet Office, moved to the Home Office last year, from his previous role as the UK's DG for civil service reform in the Cabinet Office

Oliver Robbins, now heading up the Brexit unit in the Cabinet Office, moved to the Home Office last year, from his previous role as the UK’s DG for civil service reform

What is clear is that this huge work programme will demand immense resources – and that the civil service, which has shrunk by a fifth under the austerity agenda, will struggle to find the capacity. Already, former head of the civil service Lord Kerslake and former FCO perm sec Simon Fraser have called for extra funds, and Penman adds his voice. “It’s a no-brainer that we’ll need extra capacity and capability; how that’s resourced is a matter for the next government,” he says. “There’s no fat in the system, so if you draw people in from other parts of government you’ll be losing capacity elsewhere.”

Britain’s next prime minister

Now, to the biggest unknown of all: the UK’s next government. Nominations close for the Tory leadership today, and MPs will whittle away the candidates until two remain – with the final winner selected by the wider membership. Following Gove’s entry to the contest, Johnson pulled out: “Boris has played his part as the wrecking ball of our country, and has left everyone else to try and salvage something from the rubble”, comments one ex-mandarin. This leaves justice secretary Gove as the most prominent Leave campaigner to stand. But in Tory politics he who wields the dagger has rarely worn the crown, and Gove could face strong opposition from Conservative moderates angry at his treatment of David Cameron.

The second most prominent candidate is home secretary Theresa May, who’s played a canny game – backing Remain but leaving her options pointedly open. Then there’s work and pensions secretary Stephen Crabb – nominally a Remainer, but almost invisible during the campaign – plus the neo-liberal Brexiteer and former defence secretary Liam Fox, and articulate Leave campaigner and junior minister Andrea Leadsom.

So two of the five candidates backed Remain. Yet the winner will have to promise to carry through Brexit – both in recognition of the Leave camp’s referendum mandate, and to win the backing of the party’s overwhelmingly Eurosceptic membership.

They’ll also have to paint a picture of a post-EU world; and here too, their positions will be constrained. “There were two Leave campaigns,” explains Lord Turnbull, the UK’s cabinet secretary between 2002 and 2005. “One was very inward-looking, backward-looking, nostalgic. The other was about trading around the world, being global, taking decisions much faster – and in my view the only way to make a success of Brexit is to follow the second line.” Gove and Johnson are close to the neo-liberal end of that scale; but as Turnbull notes, they won the referendum “thanks to the political success of the first group, so it’s quite hard for Boris [Johnson] to open up markets, reopen the Social Chapter, rethink workers’ rights.”

The prospects of an early election

Whoever wins the leadership, then, will have pledged to lead a Brexit – and the race will create strong pressure to make promises on controlling migration, constricting their freedom of manoeuvre in the negotiations to come. On taking the job, they’ll find both the EU and Britain’s victorious Brexiteers demanding an Article 50 notification; at that point it would take a dramatic shift in public opinion to relax the impetus towards exit.

They might be tempted to call an election – but they need not. After winning the party leadership mid-term in 1976, explains Catherine Haddon, Labour PM James Callaghan “went for three years. John Major had a general election after two years; Gordon Brown waited three. Four years [until the scheduled 2020 election] would be longer, but it’s not the case that all new PMs elected within the term seek a mandate.”

The might nonetheless call a snap election in the autumn or spring, hoping to increase the Tories’ 16-strong Commons majority and, perhaps, win a mandate for their vision of Brexit. But since the introduction of fixed-term parliaments in 2011, the PM can no longer go to the country by Royal Prerogative: they must now either win a two-thirds majority vote, lose a vote of no confidence, or embark on the distracting chore of repealing the act.

Repeal would raise a fresh problem, explains Haddon: “There are different views on whether you can revert to a Prerogative power once you’ve codified it.” And reaching a two thirds majority, she adds, “would involve Labour and the Conservatives joining forces.” The vote of no confidence option looks most viable, but such an act of governmental suicide would appear bizarre to the electorate. “It would require Conservative MPs to vote against the government – and then Corbyn could be asked [by the Queen] to form a government,” says Haddon.

Labour’s woes – and UKIP’s threat

Despite these complexities, it’s possible – as Lord Turnbull explains – that “the government might say: ‘This is our chance to wipe Labour out’.” For Britain’s Opposition is in the midst of its worst crisis in decades.

Following Jeremy Corbyn’s Remain campaign performance – which sat somewhere between half-hearted and deliberate sabotage – Labour MPs have risen up in open revolt, seizing their opportunity to unseat an unreconstructed socialist leader they view as electoral poison. This week two thirds of his shadow cabinet resigned, and 80% of his MPs voted against him in a motion of no confidence. Yet unlike the Tories’ leaders, Labour’s are elected by the wider membership, which overwhelmingly backed Corbyn just last year; and the Labour leader has vowed to see off the leadership challenge expected from former shadow business secretary Angela Eagle today.

With Labour in turmoil, a fast election might look attractive to the new PM. But British politicians only recently observed the Scottish referendum, after which – despite losing the poll itself – the Scottish National Party (SNP) demolished the Liberal Democrats and Labour in the 2015 general election. Having won its own referendum campaign, UKIP could be transformed at the next general election into a far more dangerous adversary than the strife-wracked and declining Labour. “Someone’s got to win those seats, and it might be UKIP – then you’ve made things a lot worse,” comments Turnbull.

“We’re only into the first few days of the fallout,” cautions Haddon. “If there’s consensus from both parties that we need to go back to the nation, then amending the Fixed Term Parliaments Act or a two-thirds majority could provide a way forward. But at the moment, no election seems immediately likely.”

With so many uncertainties, the course of British politics has rarely been harder to predict. But the Leave camp’s democratic mandate and the Tory membership’s long-held Europhobia look set to bring the UK a new government committed to the Brexit path. And despite Labour’s weakness, the chances of an imminent election will be squeezed by the UKIP threat, the complexities of the Fixed Term Parliaments Act and the new leader’s opportunity for a four-year run at governance. The outlook, at this point, is of a Brexiteer piloting their slender majority towards an exit from the EU – and into uncharted waters.

In part 4, we consider whether Brexit might yet be averted; and part 5 explores the potential outcomes of EU departure talks, and the likely implications for Scotland.

 

For up to date government news and international best practice follow us on Twitter @globegov

See also:

A guide to Brexit, part 1: how Britain voted to leave the EU

A guide to Brexit, part 2: What’s the process for negotiating a British exit from the EU?

Is the EU referendum result a wake-up call for employers?

Olly Robbins appointed head of government’s new Brexit unit

Oliver Letwin ‘completely unsuitable’ to lead Brexit unit, says former cabinet secretary

Brexit will be ‘largest legal, legislative and bureaucratic project in British history’, says former UK Treasury Solicitor

Clash over civil service advice in EU referendum

Bank of England’s independence under threat in EU referendum row

EU issues Poland with official warning over constitutional court changes

Sir Paul Jenkins, former UK Treasury Solicitor: EU Referendum interview

Managing the EU Migration Crisis

European Parliament orders Poland’s government to reverse changes to country’s top court

A family reunification dilemma for the EU

About Matt Ross

Matt is a journalist and editor specialising in public services, policymaking, government and management. He was the editor of trade title Civil Service World from 2008 to 2014, serving an audience of senior UK officials; and the features editor of weekly news magazine Regeneration & Renewal between 2002 and 2008, covering urban regeneration, economic growth and community development. He has also been a motoring and travel journalist, and now combines his role as editorial director of Global Government Forum with writing for other publications including The Guardian and Planning magazine.

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