As the government triggered Article 50, the count down for the UK's exit from the EU has started. The EU, which so far has stuck to its line of 'no notification, no negotiation', will now start to formally prepare for the upcoming negotiations, setting out its red lines and adopting a negotiating mandate for the European Commission, which negotiates on behalf of the EU. Once the Commission opens negotiations with the UK, what can we expect in terms of negotiating dynamics?
On the UK side, the government has managed to obtain a maximum level of flexibility for when it enters into the negotiations, as both Houses rejected the proposed amendment about giving Parliament a 'meaningful vote' on the Brexit deal. As a result, the government will not 'have its hands tied', as explained by Brexit Secretary David Davis. It is not legally obliged to obtain Parliament's approval at the end of the negotiation process, other than possibly asking it to accept or reject the final deal.
Asking a legislature to simply approve or reject an international agreement is not unusual. It is for example the norm in most international trade negotiations. However, the Brexit negotiations differ significantly from most of these negotiations, in that a rejection of the agreement would not simply imply the continuation of the status quo. Instead a rejection of the agreement would mean that the UK leaves the EU with no deal at all.
In addition, the government is not constrained by a ratification requirement by the devolved administration, although calls for a second Scottish independence referendum will no doubt put some pressure on the government.
So will this hard-fought-for flexibility benefit the government in its negotiations with the EU, making EU leaders more likely to offer a good deal, as suggested by Mr Davis?
Having a domestic ratification constraint, such as 'having one's hands tied' by a necessary Parliamentary approval, usually provides a government with a bargaining advantage. It allows the government to demonstrate to its negotiating partners that it has a firm and well supported position, making it unable to give in to undesired demands presented to it. In contrast, the more flexibility a government has, the more likely it is to have to make concessions in the face of a more constrained negotiating partner.
To compare, the Commission negotiating team, led by Michel Barnier, will be significantly constrained by its domestic constituents. First, any agreement reached will have to be ratified by a qualified majority of the 27 member states in the Council. In addition, the European Parliament has to give its consent to the agreement by a simple majority. Mr Barnier thus have to report back to, and consult with, the Council and the European Parliament throughout the Brexit talks to avoid ratification failure at the end. Given the importance of Brexit, both the Council and the European Parliament are expected to pay close attention to every move of Mr Barnier and his team, which will reduce their flexibility. Even if they are willing to meet certain demands raised by the UK government, they cannot agree to them unless the qualified majority of the 27 and the European Parliament agree as well. And at the moment there is a strong consensus within the Council and the European Parliament that the main priority is the unity of the EU.
The UK government will thus face a rigid and inflexible negotiator, unlikely to be able to agree to any far reaching concessions. It is clear that the flexibility obtained by the government through the rejection of the amendment on giving Parliament a 'meaningful vote' might not necessarily translate into negotiating power over the EU.
And this is just the Brexit - or the withdrawal - negotiations. In terms of the negotiations of the future UK-EU free trade agreement, this rigidity and inflexibility are only expected to increase further, as such an agreement is likely to also require ratification by all the national - and sometimes regional - parliaments across the 27 member states.