Why Article 50 has set up the Brexit talks to fail and how they can be saved

The EU Brexit negotiator Michel Barnier was right when he said just a few weeks ago that he wanted the Brexit negotiations to be an opportunity to educate the British people. However, he will find that it is a far different lesson the British populace takes away then the one he hoped to impart.

Of course, in undertaking some of the most complex negotiations in the history of international diplomacy the current deadlock is only to be expected. However, the rigid framework of Article 50 itself and the ideological entrenchment of the European Commission make the failure of Brexit talks likely.

Looking at the chaos unleashed in the aftermath of an unnecessary and largely inconclusive election in Britain, the EU negotiators could be forgiven for taking a rigid and inflexible negotiating stance. After all, the EU Commission is unelected and insulated from any electoral concerns or requirement to ensure a mandate for its negotiating position.

Naturally, it is in the long-term interest of the European Union’s institutions to make leaving so painful and convoluted that no member state would dare consider the option. However, this approach is untenable and counter-intuitive to any successful conclusion of Brexit talks.

As the negotiations continue to meander and stall, the British populace is becoming more educated and increasingly aware of how deeply flawed the Article 50 process for exiting the European Union is. Lord Kerr, one the architects of Article 50, concedes that it was never meant to be used by a democracy wishing to leave. Instead it was fashioned as a way of punishing and ejecting a member state whose government had been taken over by “fascists” who refused to follow EU rules.  Under the imagined scenario little regard would have been needed to be given over the financial and political damage incurred to the ejected state. It would not be so much a negotiation as a dictat from the EU, who would have much to gain from the member state’s removal.

It is clear that the motivation for creating Article 50 as a mechanism for ejection is alien to the reality of Britain’s exit from the European Union. The inherent restrictions on negotiating time, the need for votes in every member state’s national parliament (including devolved parliaments where functioning, and the European Parliament), and the designated role of the EU Commission, will impede a productive and satisfying exit for both parties. This will result most likely in no deal, which is why the Government has been consistently laying the groundwork to prepare the British public for such an eventuality.

The early stages of Brexit negotiations have already shown signs of stalling and run the risk of further delay and failure as they are constrained by the rigid mechanisms of Article 50. The tension and occasional outright hostility between the Commission and Britain will only rise. The solution for an agreement lies elsewhere.

Up until now, European leaders distracted by domestic concerns, have been happy to distance themselves from Brexit and outsource it to the Commission. While Chancellor Merkel has been campaigning for re-election, President Macron has been attempting to balance the French budget. The respective governments of Italy and Greece continue to attempt to manage their debt crises, while the Government of Poland has been rocked by internal strife over its attempt to undermine the judiciary and the Spanish Government has faced the burden of the migrant crisis shifting to its shores, together with the heartache from fresh terrorist attacks by ISIL and another contentious referendum on Catalonian independence set for October.

This situation must change if there is to be any hope of a reaching an agreement. After all, the European Union is not a country, even if President Junker and the Commission would wish it so. Instead it remains a collective of 28 countries whose economies are inextricably bound together. The elected leaders of the member states have a solemn responsibility to ensure the well-being and interests of their citizens to whom they are directly accountable to at the ballot box.

For rational heads to prevail it will require the kind of mature leadership among EU heads of government that has been found wanting since Britain voted to leave the European Union. It will require personal diplomacy at a summitry level; Twenty-eight leaders re-engaging and effectively communicating with each other in the hope of haggling out their differences and finding an amicable agreement for the benefit of all of Europe.

Reaching an acceptable deal does not have to be impractical or the failure of the negotiations inevitable. It doesn’t require the leaders of EU countries and the British Government to like each other, or to like the circumstances under which they should meet. All it requires is an understanding of what is at stake and a willingness to engage and talk.

The views expressed in this article are those of the author and do not reflect the views of the BFPG. The BFPG is an independent not for profit organisation that encourages constructive, informed and considered opinions without taking an institutional position on any issue.