The Brexit Negotiations: The weigh-in before the match

by Aurélien Colson , 15.02.17
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Aurélien Colson, Professor of Political Science at ESSEC Business School and Director of the ESSEC Centre of Excellence IRENE (Institute for Research and Education on Negotiation - Paris, Singapore, Brussels), author of the MOOC ‘Negotiation Fundamentals’, looks at the challenges facing the Brexit negotiators in the run-up to the talks

With the triggering of Article 50 of the Lisbon Treaty, likely at the end of March 2017, the UK and the EU enter the preparation phase for what many see as one of the most complex and toughest negotiations of modern times. In many aspects, the preparation phase seems on the verge of turning into a heavyweight boxing weigh in – the legendary Mohammed Ali vs. Joe Frazier, or in more modern times Mike Tyson and Lennox Lewis are striking examples that come to mind – with public officials and media both sides of the Channel each vying to impress the other with their show of pre-negotiation bravado and provocative hard-line stances. For instance, an editor of pro-Brexit tabloid The Sun wrote on 27 July 2016 that the appointment of Michel Barnier as the European Commission chief negotiator for Brexit would be no less than “a declaration of war”, the latter being pictured as “an anti-British figure”.

Negotiation is always about people, too

Whatever the problem at stake, an important dimension of any negotiation is about People – interpersonal relationships between negotiators, psychological profiles, egos, emotions, different rationalities rooted in cultural values, etc. Research demonstrates – and practitioners confirm, or vice-versa – that the opposite negotiator is more likely to accept your offer if s/he trusts you, and if the existing relationship is at least a working, respectful, one. The up-coming Brexit negotiation is no exception to this golden rule. Somebody should have told the UK’s Foreign Secretary Boris Johnson whose eccentric and provocative style rapidly alienated most of his continental opposite numbers.

Indeed, it is not simply “states”, “governments”, or “powers” that meet around such a negotiation table. It is people. No matter what The Sun and others could pretend about Michel Barnier, there is no denying that he knows his business inside out – as a former EU Commissioner and, before that, France’s minister of European Affairs and then minister of Foreign Affairs. By contrast, it is a pity for the UK that “their man in Brussels”, Sir Ivan Rogers, UK’s Ambassador to the European Union, decided to quit. Highly respected both by his peers at the Foreign Office and by his counterparts within European institutions, he would have been the UK’s central piece on the chess set. Yet, fed up with what he termed “ill-founded arguments and muddled thinking (…) of those in power” in his resignation letter, he preferred to exit the Brexit negotiations.

Beyond individual people, what matters in the run-up to a negotiation like this is the utmost need for internal alignment. There is indeed a strong correlation between internal cohesiveness and effectiveness in the negotiation “across the table”. This has not always been a forte of the European Union: a gathering of 28 member States which do not always share the same perspectives and motivations, the EU usually finds it difficult to identify a unified and sharp position. This lends extra power to the European Commission at the expense of Member States [1].

However, the challenge of internal consensus before the external negotiation proves puzzling for the UK, too. One still wonders where the common strategy is, if any, between Prime Minister Theresa May, her Foreign Affair Minister, and their Brexit Secretary, David Davis. Add to this the growing concerns of Scotland and Northern Ireland – both devolved regions having voted “remain” by a large majority. Although British courts have denied Scotland any say in the upcoming negotiations, Scottish First Minister Nicola Sturgeon and the Scottish Parliament have voiced their strong opposition to the upcoming scenario.

As to the substantial part of the negotiation, the weigh-in has firmly drawn lines on such crucial matters as custom union and single market, the flow of workers intra-Europe, free trade agreement rules, etc., with a seemingly clear message of “we won’t budge” on both sides of the forthcoming negotiation table. In a recent interview in The Independent, Guy Verhofstadt (representing the European Parliament in the negotiation process) stated that he would not let the “UK leave the Union only to cherry pick its way back into our common market”. Michel Barnier also added spice to the pre-negotiation phase by stoking up some of the old rivalry between Britain and France – he wants officials meeting and preparing papers during the talks to work in French rather than English. The remark sparked a plethora of indignant articles in the UK press and a hurried attempt from Brussels to calm the affair stressing that there was no language regime for the negotiations.

Shaping the future: how to avoid the “lose-lose” scenario?

These negotiations, which look set to begin over the spring period, certainly have the potential to change the shape, perhaps even the destiny, of the UK and, to a lesser extent, of the EU over the coming years. While it remains unclear (to reasonable observers at least) which positive outcome either side could gain from the deal, it is becoming increasingly obvious that negative consequences could stem from a poor deal. It is therefore crucial that both sides go into the talks without the assumption that negotiation is only, and always, pure competition – what I win, you lose. Indeed it is perfectly possible that both sides lose a lot in the end, with no clear winner and a mutual knock-out – for the perverse pleasure of by-standers, in Moscow… or Washington.

This points to a need for a “win-win” mindset – positive in itself but also more realist: in negotiation, nobody likes being beaten by the other side. To draw a parallel with high-level tennis, in the 2016 final of the Roland Garros tournament in Paris when Andy Murray realized that he was about to lose the match, he could not tell Djokovic: “well actually, I’m leaving the tennis court right now and maybe we’ll meet next year for another try, so let’s say there’s no deal, no loser no winner, right?” No – he had no choice but to lose. Negotiation is different: the side who is under the impression that the deal is not going to be good enough is able to leave the table and say: “No deal”.

As a result, a key issue in such a negotiation is: who can afford to leave the table with no deal, at a lesser cost for his side than for the other side. Put another way: who has the best solution away from the negotiation table? What could each side do, on its own, should the negotiation collapse? This is not an unlikely scenario. As far as the Brexit negotiations are concerned, Article 50 of the Lisbon Treaty states that, once the UK has triggered the start of the negotiations through a “notification”, the existing links between the UK and the EU “shall cease to apply (…) from the date of entry into force of the withdrawal agreement” resulting from the negotiation or, “failing that, two years after the notification”. This 2-year deadline is binding, “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” Put in plain language: the UK is going to negotiate under a deadline pressure. This opens the door, if need be, for brinkmanship: either the UK accepts a package put on the table at the last minute – or there is no deal, as it is unlikely that all the 27 Member States will unanimously agree to reopen talks.

And no deal would, honestly, mean a giant mess for the UK. Thousands of pieces of EU legislation, now fully integrated in UK’s law, would have to be repealed and then replaced. Dozens of regulatory agencies – from food to health to safety norms of all kind –, now managed at EU level for the sake of effectiveness, would have to be created at UK level. The UK would be at once ejected from tens of trade agreements negotiated with the rest of the world by the European Commission on behalf of its member states. As long as it is a member state, the UK is not allowed to negotiate trade deals on her own. Proper negotiations may start only when the UK is no longer within the EU – and such trade negotiations usually take years. Keeping in mind, as Sir Roger Davis bluntly stated, that “serious multilateral negotiating experience is in short supply in Whitehall” (which is the UK’s government). In the meantime, the UK would default to trade based on World Trade Organization tariffs, which are far less favourable to the UK than those under EU trade agreements. One should remember that, from a trade point of view, the UK’s leverage in these negotiations is weak compared to the EU: it sends 44% of its exports to the EU, while the EU only sends 8% to the UK.

However, no deal could prove painful for the EU, too. The British Chancellor of the Exchequer, Philip Hammond, has suggested that the UK could transform its economic model into that of a “corporate tax haven” if the UK fails to secure an agreement on access to the EU’s single market. This fiscal dumping could prove very dangerous to European neighbours. Although the City of London could lose 30,000 jobs, according to Bruegel, a think-tank based in Brussels, consequences could also be negative to business across the continent, unless a coordinated financial system is established to substitute the City.

All tensed up, but there’s empathy too

Both the UK and her European partners know each other well, can reasonably say they are reliable and have a shared and common interest in ensuring the wealth, health and status of their respective countries and people. They should therefore be aiming to secure a long-term horizon, packed with opportunities, which should not be lost because of short-term temptations or pressures from various lobbying stakeholders at home.

Let’s end with an example that may constitute an inkling of how, despite the pre-match weigh in, the negotiators will wish to demonstrate empathy, clarity and a mutual gains approach. Let us return to Guy Verhofstadt, the European Parliament representative during the Brexit negotiations. While communicating a seemingly hard stance on not letting the UK cherry pick its way back into the single market, he was also capable of looking at things from the UK perspective and understanding the dilemma on other major stakes, notably that of Britons already living and working in the EU and also those Britons in the UK wishing to continue to work and travel freely throughout the 27 member states. He recently let it be known that British people should be offered the chance to individually opt-in and remain EU citizens, something he heralded as “a very important proposal” that would “capture the imagination and hopes” of many British people. In this he showed both an understanding of the issue from both sides of the coin as well as empathy, and brainstormed a possible integrative solution.

Perhaps this is a sign that the pre-negotiation Brexit weigh-in is much like the boxing world’s real thing: a lot of staring, a provocative display of muscle-flexing, the odd thrown punch of a cutting word – and then the match. Not a wild brawl, but played to a set of rules which usually manage to keep the punches above the belt; and with, finally, a commonly observed aftermath to the fray.

[1] Cf. Vivet Emmanuel & Colson Aurélien (2015), « TISA, TTIP : comment négocier au nom de l’Europe », Politique étrangère, numéro 2015/3, pp. 123-134.