Brexit - Triggering Article 50

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There is a simple rule before embarking on any medium to large project; ensure that you know where you intend to end up prior to committing to a completion date. This is critical to the success of any reasonably complex project and was an absolute must for Brexit, which is one of the most complex projects of modern times. The number of parties with a stake in the outcome ensures that extreme care should have been applied prior to Article 50 being triggered.

For any project to be a success there are things that must be agreed in advance, whether the other parties involved are willing or not. So for example if the party you are negotiating with is unwilling to negotiate a starting point or terms of engagement suitable to your aims, then it is imperative that you clearly document all your aims, timings and ways of working prior to committing to the project. With these tools at your disposal you can, as much as is possible, drive the outcome that best suits you.

Prior to triggering article 50 the following documents should, as a minimum, have been in place and discussed with the European Union:

Statement of Work (SOW)

This is an agreement between two parties that details the activities to take place. In this case it should have been a document created by the UK government and agreed between UK parliament and the European Union prior to article 50 being triggered.

Purpose

Regardless of views on whether there is any purpose to Brexit, it does not take away from the fact that a purpose should be understood and agreed prior to setting out to deliver. This needs to be detailed to such an extent that both parties can understand the expectations of the UK Parliament. The key message in this section of the SOW is 'why is this work going ahead?' Government serves us (or should) and as stakeholders we should be privy to this information. “Brexit means Brexit” does not meet the requirements of this section.

Scope of Work

In the case of Brexit this required a high level of detail prior to article 50 being triggered due to the level of complexity and in particular because this process was not two parties necessarily agreeing an amicable outcome. It does not serve the EU well to give the UK all that it wants, so it was imperative to gain formal agreement at the start about what both parties would agree to during negotiation. Both parties (UK & EU) have much to lose if the process fails to be carried out successfully. This section should have included every agency impacted and the description of those impacts.

This section was one of the most important to go out for consultation with all impacted agencies, whether that be Gibraltar, Northern Ireland or such agencies / agreements such as the European Arrest Warrant or Fisheries Policy. This was key to understanding the level of work required and so ensure that reasonable timescales were planned for.

Location of Work

Where people will meet to do the work. Not only negotiators, but the UK team. This focuses the mind on the complexity of putting a working team in place.

Timescale

On a project of this nature, where once article 50 was triggered there is a final date that must be met, it is imperative not to start until it is clear that deliverables can be met. An example of the government's ineptitude in this area is that having triggered article 50, they then introduced the idea of an Implementation Period (based on the Labour policy of a Transition Period). Having not agreed an implementation period in a SOW has means that the government is reliant on the EU agreeing to it at the 11th hour. This has handed the whip hand to the EU. If the SOW work had been carried out in advance, the government could have set a realistic date for triggering article 50 and faced down EU protestations at the delay.

Deliverables Schedule

This section should have included a high level project plan, with:

  • What is due and when
  • Main tasks and their start and end date
  • Overlapping tasks
  • Interdependencies
  • Who is responsible for delivery

Normally a SOW would only need a high level plan in the early stages, but due to the difficulties that Brexit presents and due to the drop dead date written into article 50, the SOW should have included a very detailed delivery plan. This would have been a separate document, but would have formed part of the SOW sign off.

This section should also include the following table:

  • Who is accountable for delivery
  • Who is a consult on delivery (UK Parliament, Business, Unions, Public Service Organisations & EU Parliament for example)
  • Who should be informed (UK & EU public)

In addition to the above documents, there should have been a communication plan. This would detail the methods of communicating, who will be communicated with and what level of detail will be provided. This would also detail what the intended result (deliverable) of that communication should be.

Legal Framework

Many demands raised by the UK government have fallen foul of the EU legal framework.[1] In short, the demand cannot be met as it contravenes EU law. This should have been covered in an SOW and where EU law needed to be changed to meet the demand, a likelihood of success and timescale should have been detailed.

Also, this section should have included a clear procedure for dispute handling during the negotiation process. This would have avoided the shotgun style media show boating that has been a feature of this negotiation. When a group of politicians expressed their view on a particular aspect of the targeted outcome, it would be irrelevant to the overall agreed process.

Further to the above, and of far more importance, are the issues around the legality of triggering article 50. Nearly 18 months into the process there is still a case pending on whether the whole process is legal.

Acceptance Criteria

This should have detailed the exact process of sign off for all the activity and any testing that would be required in advance of the UK leaving the EU. It seems not to have occurred to either party in these negotiations that testing the outcome of a given decision should be considered in advance.

Payment Schedule

Being as the government was insistent that there would be no exit bill to be paid and then had to face the reality that they are legally bound to meet previous commitments,[2] it was important to have agreed these prior to triggering article 50. Even to this day it is not being made clear to the public what we will eventually end up paying and we are open to the EU adding new demands at the last minute.


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References

  1. European Parliament: Brexit and the European Union: General Institutional and Legal Considerations http://www.europarl.europa.eu/RegData/etudes/STUD/2017/571404/IPOL_STU(2017)571404_EN.pdf
  2. Leaving the EU: Payments to be made to meet agreed commitments https://www.politico.eu/article/britains-brexit-bill-revealed-37-1-billion-over-45-years/