UK: With Hindsight...

Last Updated: 18 February 2019
Article by Felicity Steadman

The Withdrawal Agreement and Political Declaration on the future relationship between the UK and EU, as endorsed by leaders at a special meeting of the European Council on 25 November 2018, were put before the UK parliament for a vote on the 15 January 2019. They were rejected by 432 votes to 202. The negotiations which arrived at these proposals commenced in June 2017. It seems we are stuck, 20 months later.

The Withdrawal Agreement sets out the terms of the UK's smooth and orderly exit from the European Union, including provisions for an implementation period. The Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom. It provides instructions to negotiators that will deliver a future relationship by the end of 2020 covering an economic partnership, a security partnership and agreements on areas of shared interest.

Since the vote in Parliament in January, there have been extensive further conversations, arguments, discussions, consultations, negotiations and other engagements between the UK government and the EU. There are now fewer than 50 days until Brexit, with the possibility of no deal between the UK and the EU becoming an ever greater possibility.

As an relative outsider to this complex negotiation it is impossible to know all the details of the processes followed leading to the proposals made in November and to the vote in January, or of the current discussions between the UK and the EU, between the UK government and the many constituencies within the UK, or of the discussions within and between the EU movements.

As an experienced negotiator and mediator, a few things stand out to me, however, as lessons we might extract from this 20-month process for the next stage of negotiations. If, of course, we get to that stage.

At least two strong positions or 'red lines', as they have become known, were put by the Prime Minister at the start of the negotiation process. They were that Brexit meant leaving the single market and having no customs union and that the land border on the island of Ireland must remain invisible and unchanged. Putting such definite positions up front in a negotiation is rarely helpful. By doing this a negotiator then has to deliver on these red lines or lose face.

Instead, skilled negotiators identify the issues to be discussed (such as 'the customs union', 'the single market') and then they explore their respective interests and needs. This exploration process also involves considering a variety of options for settlement, ranging from leaving the single market and the customs union to not doing so. Now, in the last few weeks before Brexit, the cross-party  'Alternative Agreements Working Group' has been formed to investigate options in relation to the Northern Ireland backstop proposal. There are also some new ideas emerging on a customs union, for example, those from Jeremy Corbyn. 

Why are these ideas only emerging now? Is it because, as many are now saying, that Corbyn and Labour have been slow to take a strong stand on Brexit, or it is because the negotiation process has been led by the Prime Minister rather than by a cross-party negotiation team? Perhaps a bit of both. In any event, a lesson to learn from where we find ourselves now is that establishing task teams and working groups to generate ideas and options can assist the negotiation process. It would be even better if these teams and groups represented the interests of a wide range of stakeholders and not just those of the ruling political party. A broad consensus is likely to develop in the process of their deliberations: one which the main negotiation team would be more likely to accept.

As early as January 2017 Prime Minister May said: "no deal for Britain is better than a bad deal for Britain". Effective negotiators work hard in their preparation not only to identify their best and worst alternatives to a negotiated agreement but also to strengthen those alternatives. They should also consider, as they negotiate, how they could weaken the alternatives their negotiation partners (In this case the EU ) have, by for example concluding trade deals with other nations.

Have we done enough work on UK and EU alternatives to a deal for this stage of the negotiation process? We heard today from James Brokenshaw MP that there are now 10,000 civil servants working on the no deal alternative. Has enough been done to secure the services of the staff required for the social and health care services, not to mention border control? Is it too little too late? For example, do ships leaving UK harbours today for far-flung destinations have the correct customs papers they might require when they return to the UK on the 30th March 2019?

And finally, what of the use of facilitators and mediators in this complex negotiation process? Such skilled professionals are used to facilitate discussions on one side of the table as well as between the negotiating partners. I don't know if the Brexit negotiations had been assisted by skilled process facilitators, although I can think of a number of other complex multiparty negotiations that have benefited from the steady hand of a process expert, leaving the negotiators to focus on their relationships and the issues on the table.

Nobody ever thought the Brexit negotiations were going to be simple, so let's identify and learn some lessons from the process for the negotiations ahead.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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