- Article 50 contains a two-year deadline after which Britain will be ejected from the EU.
- Britain will be ejected even if no deal is reached.
- The EU need do nothing to “win” the negotiation.
- Two years isn’t long enough to structure a new UK-EU trade deal.
Theresa May is about to find out whether she has made a huge strategic error by triggering Article 50 so quickly. That’s because the
negotiation deadline in Article 50 is more important than the
substance of the talks themselves.
Article 50, obviously, contains a two-year deadline. That two-year clock controls the entire negotiation: Any member of the 28-nation bloc that triggers Article 50 is automatically ejected from the EU with or without a deal after two years. It can only avoid the two-year deadline if it agrees to a humiliating reversal or obtains a highly unlikely extension to the negotiation period. (The law is currently unclear on whether Article 50 is irrevocable.)
It is to the EU’s advantage to just let the clock run out
The most important thing is that the EU has no interest in giving Britain a good deal. Quite the opposite: The EU is incentivised to demonstrate that leaving the EU leaves you in a worse position than staying inside it. So it is actually to the EU’s advantage to not negotiate at all, and just let the UK flop out of the EU into the wilderness of WTO status. It would demonstrate that leaving the EU contains only punishments, not advantages.
Once Article 50 is triggered, the EU can filibuster the talks, running out the two-year clock, until Britain is ejected in a “hard Brexit” without any of its demands or requests being met.
Given all that, May’s best strategy would have been to try her hardest to start informal negotiations and get an exit agreement in principal before pulling the trigger, making the Article 50 trigger itself a mere formality.
That would have been difficult to do. The EU flat-out refuses to talk to the UK until after the trigger is pulled. Jens Spahn, Germany’s deputy finance minister, said a few weeks ago, “I honestly can’t imagine any prenegotiations on substance.”
But not impossible. The “no prenegotiations” stance is a principle and not law. There is nothing in the text of Article 50 that prevents negotiations from beginning, or even in large part concluding, before Article 50 is triggered. The law says nothing about when talks should take place. May could have delayed the trigger while her troops buttonholed EU officials into some sort of preliminary agreement. Instead, she is going into the negotiations blind.
Britain can’t stop the clock
The EU knows that once the trigger is pulled that two-year clock will begin ticking loudly. The two-year period can be extended, but only by unanimous agreement. The UK cannot unilaterally extend the deadline.
All the advantages lie with the EU in any negotiation that takes place after the trigger is pulled. This is why the EU insists it “cannot” talk to Britain before Article 50 is invoked.
Conservative MP Anna Soubry gets this. In a conversation with Business Insider, she used a golf club analogy to sum it all up:
“We do not hold the cards in this … Imagine if you belonged to a golf club, and you were to say, ‘I’m leaving, but I’d like to still play at your golf club for free with none of your rules’ — it’s bonkers. They’re in denial.”
A deal can’t be reached in 2 years
The EU negotiations are so big and so complicated that there is no way the UK will have a deal in place before the end of the two-year period. It might be doable in seven years. More likely 10. But not two.
So May will enter Article 50 with the odds against her: She has no informal agreement going in, she faces an opponent that needs do nothing to win, and the time is too short for her to get the best deal for the UK.
Let’s hope she has something up her sleeve we don’t know about. Because right now, triggering Article 50 at this early stage looks like a strategic error.
This is an opinion column. The thoughts expressed are those of the author.
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