Smoke and mirrors

25 August 2017

Whitehall’s energy is a welcome surprise: five position-papers this week, bringing the tally to eight in August including a joint note with Brussels. It is not clear if we have a full set, but we have enough for some insights, best seen through the lens of the process of negotiation itself, resuming this Bank Holiday Monday.

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Agreeing the stance
There are always distinct internal constituencies to hear from. Think of a household buying a car: in a happy family, husband and wife, parents and kids all get to sound off. Similarly, when one company buys another, head office and divisions, marketing and production must all first be brought on board.

Turning to Brexit, HMG must align England with the devolved regions, get consumers and competitors of imported labour to reconcile and wrangle much else besides. How much tougher for the EU, corralling a hydra-headed superstructure and two dozen plus nations? Brussels has made a virtue of necessity by publishing its twelve position-papers, laboriously engineered with reference to its innumerable moving parts. So far these have made for unity, but they place Barnier at a disadvantage as “first to speak”. Their ventilation is also at odds with normal diplomacy and a hostage to fortune and continued media tractability. The UK’s paper on data protection may similarly be seen as constituency-building: a sop to business interests, exercised on the topic but set to be disappointed on labour mobility.

Pressure
The preliminary to negotiation is softening the other side up: trying for a split, setting deadlines and orchestrating the agenda. Each side has toyed with splitting the other. At home, we remain mesmerised by Leavers vs Remainers, but the EU27 has its own fissures - budget contributors vs consumers, exporters of goods vs exporters of labour. Meanwhile, the Article 50 timetable ticks on and Barnier has succeeded in pressing his sequencing, with Davis so far unable to counter. Let’s see what happens when they sit down on Monday.

Think of Brussels’ position-papers as though the steering-wheel thrown out of the car by fifties dragsters playing “Chicken”. Then again, London is able to exploit sixty years of EU shakedowns along these lines, leaving it unpopular with other international traders. The prospect of deals with third parties has rattled the EU, but places the UK uncomfortably in the hands of Trump.

Wrong-footing
Negotiators of a strategic temperament (and all make this claim) seek to put the other side in bad odour or otherwise trap them into weakness. So far in the current negotiations, this has largely meant appeals to public opinion. Brussels made early mileage with a snappy defence of citizens' rights, but trying similar tricks on Gibraltar and Northern Ireland risks looking mischievous. By contrast, Dublin has been responsible without going so far as to break ranks outright. What’s more, the EU has been shown up as extravagant with its demands for extraterritorial powers and exit money.

The UK has come back with a paper on confidentiality during negotiations. The EU can’t reasonably object to this, but its innate leakiness almost certainly means red faces down the road. The UK’s paper on dispute resolution is temperate but unyielding. It goes far to wrong-foot the EU with its subtle distinctions between jurisdiction and interpretation, so far lost on Fleet Street’s finest. And watch out for that final bill, destined to be exposed as rashly promising prizes for all.

Smoke and mirrors
Once negotiations kick in, it is time to push out some meaningless detail intended to distract the other side. The EU just loves this sort of malarkey, gleefully bamboozling and bullying the smaller countries with which it has struck trade deals. Its local cheerleaders purport to take its flimflam seriously; the rest of us need not. Ploys like this account for Brussels’ otherwise inexplicably repetitive “Essential Principles” on governance, functioning of agencies, administrative procedures and judicial co-operation. Whitehall has batted this guff aside with its own boilerplate responses on judicial co-operation and continuity of trade, addressing substantive matters elsewhere. Home-grown smoke and mirrors may be found in DExEU’s unduly extended options for dispute resolution, customs and Northern Ireland.
In the normal course of things, concessions might be found among these makeweights, but the message of the EU's position-papers is that Barnier's hands are tied. This could end up a two-edged sword.

Negotiations proper
Serious diplomacy is a bit like going bust or good sex: first very slow, then very fast. Right now, we’re in the slow stage: Barnier has insisted that negotiations be conducted in rounds - one week on, three weeks off. This is not so much to allow tempers to cool or staffers to prepare, as to get sign-off for past points and consultation for new ones from principals and bureaucrats. Another token of the EU’s fragility.

Negotiators follow tram-tracks. Stances are expressed in confidential equivalents of the position-papers which on this occasion have been fully aired. Then to tease out community and divergence of outlook , where possible bargaining the latter against each other, parking the most trying for eventual resolution between principals. Sometimes, when differences cannot be resolved in the room by reason, wiles or tantrums, both sides turn to an agreed authority. In this instance I see neither time nor inclination, so stand by for hissy fits and leaks. Finally to the hurry-up, with the EU relishing last minute alarms: thus its famous soft deadlines.

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The Brexit negotiations are singular for the way in which the EU paraded its stance at the outset. After some initial faltering, London seems to have found its game face, taking advantage of Brussels’ missteps and laying the ground to score off its weaknesses. I would make less of the formal bear-traps in wait for the EU by reason of its inevitable breaches of confidentiality, and more of its history of big-league failure and its central problem in staying together once the pitch gets heavy. Every negotiator knows that the real challenge is keeping the boss onside and selling the deal back home.