Lord Kerr, who helped draft EU legislation, says uncertainty over who will lead negotiations for UK is ‘very real problem’

Uncertainty about who will lead Brexit divorce talks for Britain is a “very real problem”, the diplomat who helped draft article 50 has said, as he warned the UK faces a 45% chance of crashing out of the EU with no deal.

John Kerr, a crossbench peer who served as the UK’s ambassador to the EU, said there was “a very real problem in the United Kingdom ... that it is not clear who the negotiators are going to be”.



He was speaking before the Brexit secretary, David Davis, asserted that he would be the principal facing the EU’s chief negotiator, Michel Barnier. But on the day Barnier published a draft of the detailed negotiating text, senior sources in Brussels could not say who the Frenchman’s opposite number would be. “There are elections coming up,” said a senior EU official. “We are not speculating about who our interlocutor is.”

Kerr said it was clear Davis was going to play a role in the talks, unlike Boris Johnson, but raised questions about his room for manoeuvre from No 10.



“It seems clear that the foreign secretary is not going to play any role in this negotiation,” he said. “It seems clear that Mr Davis is, but to what extent he is an independent operator I don’t know.”

Kerr, who worked for Davis during John Major’s government, went on to describe the Brexit secretary as a clever man, who was “nice, straightforward, honest [but] not particularly experienced in this sort of dossier”.

According to sources in Brussels, May told Jean-Claude Juncker she would be chief Brexit negotiator, a prospect senior EU officials regard as completely unrealistic. The EU expects to hold intense week-long negotiating sessions in Brussels every month for the 14- or 15-month duration of the peak Brexit talks – an impossible job for a prime minister.

The talks will be conducted in French and English with interpretation, as Barnier wants the right to speak in his native language.



Talking to a small Brussels audience at the European Policy Centre, Kerr said the British government had made “a very large negotiating mistake” by not making the EU an early offer of the closest possible cooperation on foreign policy, counter-terrorism and intelligence sharing.

He added that a “small circle” around May was controlling Brexit, with the Foreign Office, most officials and ministers cut out of the debate.

He also did not hide his view that May “seems to be in full cherry-picking mode” in her attempt to keep hold of the parts of the EU she likes best, an approach the EU has vetoed.

How much does Britain owe the EU? Somewhere between zero and €100bn (£84bn) is probably the only accurate answer at the moment. The former is what some British ministers still argue for, drawing succour from an influential House of Lords report that suggests any liability arising on leaving the EU is not legally enforceable because the UK will have left.

This so-called golf club argument is vigorously contested by most other EU governments, who insist all financial obligations must be met before they will agree to any future trade deal. The figure of €100bn is the latest in a series of back-of-the-envelope estimates by journalists and thinktanks who have attempted to tot up those obligations. Previously the consensus among the same experts was €60bn.

But he criticised the EU for the strict negotiating timetable that means the Brexit bill must be agreed before discussing future trade. The article 50 text, which Kerr played a role in drafting, states that the divorce deal shall take “account of the framework for [the departing state’s] future relationship with the Union”.

He said the EU had made a legal and political mistake, arguing that such a strict division “could have a price, by meaning the British will settle for a much smaller sum”. You can calculate the bill by reference to the past, but you must present it as the price of the future.”

EU officials rejected this thesis, but some think the atmosphere was poisoned by May’s attempt to link security cooperation with a good Brexit deal, suggesting the pre-negotiation build up could have been different.