Sunday 10 December 2017

How not to negotiate


Jean-Claude, don't do that.
Michael Gove set the weekend off with a proud declaration in the Telegraph that "The British people will be in control. If the British people dislike the agreement that we have negotiated with the EU, the agreement will allow a future government to diverge".

His boss (who he had praised loyaleaginously [my neologism, sorry] only the day before) had come home from a press conference with a piece of paper saying that the Brexit negotiations could move on to phase 2, and you might think that a cabinet minister's job was to tell the world, and most especially the rest of the EU, that her word could be trusted.

After all, the EU27 want to be sure she has the backing of her cabinet (we'll come back to this later) and she now has to get stuck in to the big stuff about transition (to what?), trade and security (that grouping from her March letter that brought charges of blackmail), and the framework for a future relationship from which could eventually come the most wonderful trade deal the world has ever seen.

But now Gove says we might not like it and we might just change it. At the next election (which is supposed to be 2022, beyond the end of what the CBI might call a transition period and his boss does call an implementation period). Some even take it as a demand for a "second referendum". Gove's article looks like the action of one of those damned saboteurs, but someone with a finger on the Tory pulse claims it was approved at the top.



Is it really a good idea, when you're in the middle of negotiating the UK's biggest change since the second world war, to reassure people that we could change it all in a couple of years' time? Those cuddly people at Westmonster seem to like it.



So, on to some rules of negotiation.

1. Select a laughable cabinet

Theresa May averts her gaze as David Davis adjusts his
trousers in readiness for being hugged by Jean-Claude Juncker.
Did the EU Commission select Michel Barnier as lead negotiator because he knows David Davis? They were both Europe ministers in the 1990s but Reuters' profile of the Frenchman doesn't include any opinions from the honourable member for Haltemprice and Howden.

In the Brexit context Davis is better known for simply not appearing to know how the EU works. Before the referendum vote, as he still proudly tells us on his own website: "the first calling point of the UK’s negotiator in the time immediately after Brexit will not be Brussels, it will be Berlin, to strike the deal: absolute access for German cars and industrial goods, in exchange for a sensible deal on everything else. Similar deals would be reached with other key EU nations". Then only three weeks ago he was in Berlin, telling a business audience that "We should be trying to maintain what we already have" and "Putting politics above prosperity is never a smart choice". They laughed.

Liam Fox, or "discredited former Minister Dr Liam Fox" as I'm reminded to call him every other time I use his name, was a prize-winner in 2009 as the largest over-claimer in the House of Commons expenses scandal, then had to resign after 17 months as Defence Secretary when he was discovered to have given a friend inappropriate access to ministerial offices and business trips. He also exhibits what you might call the standard Brexiter over-optimism, telling Radio 4 that "a post-Brexit free trade deal between Britain and the European Union will be 'one of the easiest in human history' to negotiate" and echoing Davis that the only thing which would stop it would be if "politics gets in the way of economics".

When it comes to Boris Johnson, I could enumerate his lies and infidelities but I really only need to quote a Daily Mail headline: "US in shock as wildly eccentric politician Boris Johnson is made Britain's top diplomat prompting giggles from State Department official while media calls him 'sexist' (and even Cher is outraged)". 

And now there's Gove, but we've already looked at him...

2. Take everything off the table

May's conference speech last October caused a second Brexit-related drop in sterling, but all she said was:

"It is, of course, too early to say exactly what agreement we will reach with the EU. It’s going to be a tough negotiation, it will require some give and take. And while there will always be pressure to give a running commentary, it will not be in our national interest to do so. But let me be clear about the agreement we seek. I want it to reflect the strong and mature relationships we enjoy with our European friends. I want it to include cooperation on law enforcement and counter-terrorism work. I want it to involve free trade, in goods and services. I want it to give British companies the maximum freedom to trade with and operate within the Single Market – and let European businesses do the same here. But let’s state one thing loud and clear: we are not leaving the European Union only to give up control of immigration all over again. And we are not leaving only to return to the jurisdiction of the European Court of Justice. That’s not going to happen. We are leaving to become, once more, a fully sovereign and independent country – and the deal is going to have to work for Britain."

By January, at Lancaster House, May was telling us exactly what she didn't want. She wanted to be out of the EU internal market (commonly known as the single market) and the EU customs union. She wanted to be free from the jurisdiction of the Court of Justice of the European Union. And that's been about it as a statement of government policy since then, and Brexiters have started to tell us that "everybody always knew" that was what Brexit means. Not true, but apparently it must not now be questioned.

So she took everything off the table, apparently with the intention of getting as much of it as possible back in negotiation. She also promised to "provide certainty wherever we can" and to "strengthen the precious union between the 4 nations of the United Kingdom" but we all need a laugh.

3. Kick off the process before you know what you want

Why did May send her Article 50 letter to Donald Tusk on 29 March 2017? Because it was about as long as she thought she could get away with. She gave the impression that she would have a detailed plan by then, and some of us almost believed her.   


4. Hold an election

As Reuters reported: "Theresa May called on Tuesday for an early election on June 8, saying she needed to strengthen her hand in divorce talks with the European Union by bolstering support for her Brexit plan". 

That went well didn't it? She now has fewer MPs, faces a revitalised Labour Party, and is at the beck and call of the Democratic Unionist Party.

5. Intervene in the wrong forum at the wrong time

In June, after David Davis had had to go to the first round of Brexit negotiations before there was actually a government as such, and abandon his "row of the summer" by accepting the sequencing of talks proposed by the EU (something to do with an election in which the Tories came first, but didn't really win) May turned up at the scheduled EU council meeting with a proposal for how she wanted to deal with EU expats.

She had been told from the start that the member states would not engage in negotiation, that it all has to be done through Michel Barnier's team, so she was given a short slot to say her piece and there was little discussion. Then the press conference was hijacked by questions about Brexit. The position paper then went on to the second round of talks in July. Could she really not have had it ready for Davis to take into round 1 a few days before?

May's Florence speech also stirred up the negotiating schedule by forcing the postponement of the fourth round of talks. Was her position simply not known until then? Did she think she would be noticed more if she rebelled against the timetable she had signed up to?

6  Fail at the October summit

In the wake of the December EU council summit, it might be forgotten that some in government thought they might pass the "sufficient progress" test two months earlier. That was of course one of the purposes of the Florence speech which led Michel Barnier to hail a "new dynamic" in the negotiations but to tell the waiting press after the postponed September round that "We will need several weeks, even several months, to be able to see 'sufficient progress' on the principles of this orderly departure". And having seen the amount of work that had to be crammed into the few days before the December summit, you have to wonder where the October optimism came from.

When 26 British MEPs backed a motion in the EU parliament on 3 October to the effect that there had not yet been sufficient progress in talks to allow phase 2 to begin, they were accused of voting against the British interest and labelled "Brexit betrayers" (I could easily have found much worse names but that will do). This was a supposed British interest in optimism and positive attitude rather than anything else.

7. Do no work at the last scheduled round of talks 

Despite there being no other scheduled talks before the December summit, the UK and EU negotiating teams had no more than 24 hours together at the November round. David Davis described it as a "stock-take". It's always been assumed that work would be carrying on between these meetings, but you also have to assume there's some purpose to the get-togethers (the British team is reported to be up to 100 strong) over and above the painful press conferences.

8. Pretend to work out the effects of your intended actions

Parliamentary drama turned to farce as the Labour party enlisted the monarch to compel David Davis to hand over his elusive impact assessments, which didn't exist as such and had to be compiled and written over a period of three weeks, only to be greeted as inadequate and not living up to the billing that Davis had given them.

This morning, Davis told Andrew Marr that nobody should have expected anything different, and Peter Bone - billed as a "senior Brexiter", resplendent in Grassroots Out tie (of which he probably still has a garage-full) and spouting rubbish about the "deal" reached on Friday, observed that it would be ridiculous to bother with impact assessments. The media management message seems to be that enough of the right work is being done, what has been handed to the DExEU select committee is all they should expect, because after all, the pre-vote Brexit forecasts were all wrong (despite most of them being for the period following Brexit, so we can't know that yet).

9. Give the impression of doing no work until it's far too late

At the November press conference Barnier surprised some people by agreeing with a journalist that the UK had to produce serious proposals within a fortnight.  That day passed and nothing happened. Then Donald Tusk set a new deadline of Monday 4 December but May wasn't having any of it. "We have always said we are working towards the European Council, which is December 14," May’s spokesman James Slack told reporters.

She was due to lunch with Jean-Claude Juncker on that day (I wonder when that was organised) and this became the moment she would present her final case. Yet all along the word in Westminster was that the only date that matters is 14 December.

European Union wheels tend to grind slow. A Council summit requires a lot of preparation, and all but the final detail is supposed to be ready beforehand. This was shown in the calendar produced by Barnier in advance of the November talks - draft Council conclusions were to be worked on as early as 29 November. Yet, as I'm often reminded, negotiations have a habit of going to the wire, and it wouldn't surprise me if this drafting job started on time, with Commission officials leaving a Brexit-shaped gap.

Elsewhere there were many interviews with Irish government ministers concerned about the border, and keen Brexiters telling us how "technology" would make it all simple. They prayed in aid former Taoiseach Bertie Ahern who had the same story:

"Our economy is relatively small, a huge amount of the trade is multinationals; it should be possible, I think, to do that by technology," he told BBC Radio 4’s Today programme. "But of course, when you come down to agriculture and smaller items, I don’t think technology would work. One thing we do not want, can’t have, is back to a physical border.”

He added: "Theresa May, take her at her word, she’s confidently said she doesn't want a physical border, the EU don’t want a physical border, the Irish Government don’t. So you’re left down with the one alternative — to make technology work in most cases and to throw a blind eye to those areas that can’t come in within technology".

But they ignored another former Taoiseach, John Bruton, and current Irish ministers who are not convinced by the technological solution (or indeed commentators who wonder how large a fraction of the economy and border activity you would have to "throw a blind eye to").

Meanwhile the UK government kept a straight face, assuring us we won't have a hard border but we can't fix it until the end of trade talks

Of course there was work going on the background, as we discovered later in the week, but what part of the arrangements for Northern Ireland couldn't have been done much earlier?

10. Forget to consult the woman you depend on

If anything, the DUP have said even less than the UK government about the Irish border, and certainly less about other aspects of the negotiations. What they said on Monday 4 December however, was, first, "No", and then that the text came as a "big shock... Once we saw the text, we knew it was not going to be acceptable". More taken from the Irish News:

Former first minister Arlene Foster said that the DUP had made its position "quite clear" throughout negotiations with Mrs May that they would reject any deal which treated Northern Ireland differently from the rest of the UK. She now told the Prime Minister that it "could have been dealt with differently" and that she will not support Brexit legislation in Westminster unless the deal due to be agreed on Monday was changed.

The DUP's deputy leader, North Belfast MP Nigel Dodds, had earlier also said that the party only received draft proposals on Monday morning: "Despite several briefings over the course of the last few weeks, we only received written text late yesterday morning. We understand this was due in part to delays caused by the Irish Government and the EU negotiating team. So the DUP does stand strong for the union and we also issue a warning to the Dublin government - that by continuing its aggressive stance they are in danger of delivering for themselves the very outcomes that they said they want to avoid." Mr Dodds said there could be regulatory alignment in certain areas, but added "not in relation to following the rules of the single market or the customs union for Northern Ireland as a generality."

11. Capitulate

That's the way some of the hard, hard, hard leavers see it. UKIP Leader Henry Bolton has dubbed today’s Brexit deal announcement "a total surrender to the European Commission". Westmonster continues:

He said: "I would say 80-90% of it was actually drafted in Brussels, we don’t know that but it’s my guess. I recognise the style of the document. If there is no agreement we stay under full alignment, meaning we’re tied to the customs union, single market and ECJ". People aren't happy with Theresa May’s capitulation. Agreeing to allow the ECJ to hold sway for eight years is a particularly large sell-out, whilst there is no end to open borders in sight.

And Remainers can fall in with them: 





David Allen Green, legal commentator for the Financial Times perhaps spoke more in sorrow than anger:




12. Proclaim victory.

At the second attempt maybe, but...



13. Then be "confusing" about what you've agreed 

David Davis told Andrew Marr on Sunday morning "we want to protect the peace process and we also want to protect Ireland from the impact of Brexit for them... this was a statement of intent more than anything else. It was much more a statement of intent than it was a legally enforceable thing".

The Irish government in turn said it assumed the British government would honour its word, and that it would hold the British government to the agreement. It relied on paragraph 46 of Friday's joint report: "The commitments and principles... are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and the United Kingdom.”

In response to reports that some hardline Brexiters had been assured by the British government that the term full alignment (cause of much argument) was "meaningless", Dublin responded strongly, stating that the deal was "binding". A comment to the Zelo Street blog suggested "The way the Three Brexiteers have spent the weekend repudiating Friday's agreement, I wouldn't be surprised if the EU 27 decided that insufficient progress had been made to start trade talks".

One of several legal evaluations I've seen of Friday's document is from Dr Katy Hayward of Queen’s University Belfast, printed in the Irish Times. She observes that May's government "had worked hard to downplay the deep complexity of the Northern Ireland/Ireland issue... it had stated that it had no intention of putting a “hard border” across the island of Ireland and that, quite frankly, it did not see the need for such a border to exist in the first place. This, of course, was part of the problem". It continues:

"The inevitability - nay, the unavoidability - of a hard border if the UK (and with it Northern Ireland) leaves the single market and has no customs union with the EU has really never properly been countenanced by the British government.

If the UK wishes to have a different, more “liberated”, relationship with the EU in the future then difficult choices have to be made about how to manage the consequences of that for Northern Ireland. This joint report manages to put off the making of those difficult choices for now and instead sets some fortified boundaries to limit the damage that those choices could cause.

The joint report is not, therefore, an exercise in “constructive ambiguity”; it is entirely unambiguous in many respects. Where it gives the impression of haziness is in the fact that the report allows for three quite different scenarios."

Read the piece to see how "putting off the making of difficult choices" is really what has been achieved.

14. Fail to agree objectives with your cabinet

It has long been rumoured that May hadn't allowed her entire cabinet to discuss what they hoped to get out of Brexit. Then Tom Newton-Dunn told Sun readers "Theresa May has delayed a crunch Cabinet debate over an EU trade deal until next year over fears it will spark major resignations. The PM will not ask her top table to agree what conditions Britain is prepared to accept from Brussels in exchange for it until the EU has first laid out its own terms".

He quoted "one cabinet minister" as saying "We haven’t grasped the nettle on the trade deal yet, and we really have to soon. Theresa’s fear is the moment we do, half of us walk out. We just don’t know which half will yet" and the rumours persisted. Then Philip Hammond appeared before the Treasury Select Committee two days after the DUP debacle.

The chair, Nicky Morgan, asked him "I  have one last  question.  In your  remarks, you mentioned the phrase “end  state”. Has the  Cabinet discussed openly, in a free discussion, the end state of where the UK Government want to get to by March 2019 and beyond?"

Hammond answered "The Cabinet has had general discussions about our Brexit negotiations, but we have not had a specific mandating of an end-state position. That is something that will be done first in the sub-committee that has been constituted to deal with this issue. Logically, that will happen once we have confirmation that we have reached sufficient progress and we are going to begin the phase-two negotiations with the EU 27. We are not yet at that stage, and it would have been premature to have that discussion until we reached that stage". It might not make sense to "mandate an end-state position" before then perhaps, but this suggests that no discussion has taken place.

The BBC's Laura Kuenssberg commented "Hammond confirms publicly what everyone in SW1 knew privately - cabinet is still to have THE big discussion about the kind of Brexit they ultimately think we should have - DUP row has hugely ramped up the pressure for it to happen" 

and

"Cabinet ministers believe they were promised that discussion by Christmas - on the face of it it's impossible to believe they still have't worked out what their big picture vision is" 

and again

"As and when the PM actually tries to get the Cabinet to agree what the world should look like after 2021, after Brexit, and after the transition period, all hell might break loose because she has no majority and simply, members of govt want different things".

And, though it seems to come as a surprise to May every day, these things happen in public. Every other EU member state's head of state/government, Michel Barnier's whole negotiating team and everybody in the EU Commission knows what we know (and more - I discovered the legal analysis quoted above in a tweet from Michel Barnier's deputy Sabine Weyand). Accordingly, as the Guardian reports "While May was lauded by her ministers for striking an agreement in the early hours of Friday morning to move the Brexit talks on to the future relationship, a statement was being drafted in Brussels for agreement by EU leaders next week in which they will call on the UK to offer urgent clarity over their vision for the future".

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