First, apologies for my fairly lengthy radio silence in the blogosphere. I have been focused on my new strategic IP and digital media consultancy which I launched at the beginning of the year. More on that to follow when I launch my new site shortly.
Meanwhile, like fellow Remainers, I'm rapidly moving through the five stages of Brexit grief - denial, anger (mostly) and now moving to bargaining. Which brings me to Article 50 of the Lisbon Treaty which, as I'm sure you know, requires the UK as the departing member state to trigger the procedure by giving notice to the European Council.
I can't help thinking that whoever drafted that Article probably thought it was the last treaty provision ever to be scrutinised. Any decent termination clause in a commercial contract would build in some provisions for consultation etc. prior to formal termination. There's already a lot out there in the blogosphere about this but it's worth reiterating a few points about Article as it provides context for upcoming UK/EU exit negotiations:-
- Whilst Article 50.2 provides that the EU shall negotiate an exit agreement following notification by the departing state, the effect of Article 50.3 is that the departing member state leaves the EU within two years of notification if no withdrawal agreement is negotiated before that period expires.
- So the UK's bargaining position starts to erode from the moment it serves the exit notice, as the UK's negotiators would sit at the negotiating table watching the clock tick towards exit, with their EU counterparts telling them that if they don't like the ideal on offer, they can have no deal. Sure, there are motivations on the continuing EU side to do a deal of some sort, but they will want to drive a hard bargain.
- Hence the reluctance on the part of the PM, Johnson et al to rush into giving a notice.
- Even if the current PM or his successor was minded to do so, in response perhaps to the EU's current stance of 'no negotiations until you give us notice', there are domestic constitutional arguments that no PM has the authority to give a notice without first being authorised to do so by authority of Parliament. See the excellent post here from Adam Tucker for the UK Constitutional Law Association which argues that without such authority in the form of a Statutory Instrument or primary legislation, there may have to be a General Election.
So with so much at stake, and with such legal complexity, we have a Mexican standoff between the UK and the EU. Who will blink first? As the EU as well as UK Remainers move into the third stage of grief and start to focus on bargaining, logic - OK, so when did logic, evidence-based decision making or the like ever come into Brexit? - suggests that some outside event or agency makes possible some a resolution of the standoff. Sounds like a good job for a mediator (Hey, I'm a mediator and I'm available!).
But seriously, with so much at stake for both sides in social, economic, political and legal terms, some facilitation is needed here.
That takes us to the kind of relationship that both parties can agree or, as a mediator might put it, is the least worst outcome which both parties will accept having regard to the alternatives to a negotiated deal. Much has been written and will be written about the known options, including UK membership of EFTA or a bilateral agreement of the kind Switzerland and Canada have each negotiated.
The first principle of negotiation I learned was 'you don't ask, you don't get. The UK creative industries need to take a lead here. We have amongst our midst some of the most creative and innovative minds in the world. We need to start with a vision, which reflects the borderless, global, services-orientated, interconnected world in which we work and live. We need to ask ourselves the big questions about what we want, both with the EU and beyond and make sure that our voice is heard. Let's get cracking.
Have a good week,