Negotiating Brexit: Tips for Prime Minister Theresa May

 

Barrister Iain Christie on how basic mediation principles could help the UK after Brexit is triggered

The Government has announced that it will trigger Article 50 on 29 March 2017, thereby commencing the two year period for negotiating the terms of the UK’s exit from the European Union. On the eve of commencing what has been described as the most complex peacetime negotiations the UK has ever faced, this article considers some lessons to be learned from a basic mediation training.

Authority to Settle

It is a fundamental requirement when negotiating that those who conduct the negotiations have full authority to settle the dispute. That is to say, that those whose consent is required to agree to the terms of any proposed settlement actually participate throughout the process or have vested delegated powers in those conducting the negotiations to conclude the deal on their behalf. Trainee mediators are taught at the outset of the need to check that those attending the mediation have authority to settle and are warned of the dangers of proceeding without it, for example on the basis of an assurance that "all it will require is a quick phone call to the CEO to approve the terms before the deal can be sealed.” Often when that phone call is made late at night, after those round the table are exhausted after a lengthy negotiation, having gone the extra mile and well beyond their final, final offer, the absent CEO simply cannot understand why a particular position has been adopted and refuses to give his or her approval to the apparently inexplicable deal.

Amendment 2 to the European Union (Notification of Withdrawal) Act 2017 proposed by the House of Lords violated this basic principle by requiring the prior approval of Parliament before the UK could agree the terms of its exit from the EU or before it could leave the negotiations without an agreement. This would have effectively made Parliament the absent CEO, potentially telling the negotiators to return to the table with a report card saying "must do better.” This, logically, led to the requirement for regular updates to be given to Parliament on the progress of the negotiations, thereby attempting to make Parliament itself a party to the negotiations.

Putting to one side the impracticability of even identifying through a Parliamentary process what the specific desired changes would be to what will undoubtedly be an immensely complex set of proposals that may or may not be acceptable to the UK, there would have been no prospect whatsoever of the EU27 agreeing to anything further of any significance. Imagine being on their side of the table in the scenario described above, to be told at the thirteenth hour that some aspect of the deal on which you thought you had finally reached agreement was now no longer acceptable.

There is another reason why vesting authority to settle in the negotiators is so vital to the chances of a successful negotiation. If you know that your opponent does not have the final say on whether the terms of any settlement are accepted it creates an air of unreality about the whole process. All your effort could be wasted because of an extraneous circumstance beyond their control. Of course, in multilateral international treaty negotiations ratification of any new arrangement between the parties is always required, which may entail approval by national Parliaments. The Government has given an assurance that Parliament will have a say on any final deal. But that is specifically not required for withdrawal from the EU without a new agreement as the consequences of that scenario are already set out in Article 50 (3) and do not need approval by anyone.

Best Alternative to a Negotiated Agreement ("BATNA”)

At the reality-testing stage of a mediation, mediators often ask the parties to consider what is likely to happen if they do not reach an agreement in the negotiations. Each party is likely to have a very different view of what may happen in that scenario, usually favourable to themselves. But one thing is inevitable – uncertainty. That is why a negotiated settlement is always better than the alternative because it gives control to the parties to agree the outcome rather than to hand that decision over to a third party (usually a court).

However, the BATNA of the impending negotiations with the EU is not uncertain. It is set out in Article 50 (3) of the Lisbon Treaty. The certainty that the entire body of EU Treaty law shall cease to apply to the UK if a new arrangement is not entered into two years after triggering Article 50, allows both sides to make contingency plans on that eventuality occurring. It will be possible to make some assessment as to whether exiting on those terms is better or worse than the offer on the table at that stage.

Some concern was expressed during the debate on the Bill as to what would happen if Parliament did indeed refuse to approve any proposed deal or to allow the UK to withdraw from the negotiations. One suggestion is that it could have resulted in the UK remaining in the EU. Indeed there was some suspicion that that might even have been the ulterior purpose in proposing Amendment 2. Once again, that makes no sense in terms of negotiation dynamics. An analogy is often made between Brexit and a divorce. If a couple who have decided to get divorced are unable to agree the terms of any settlement, they do not as an alternative decide to remain married. They get on with living under a new arrangement which either or both consider to be unfair. The decision to end one form of relationship has to be distinguished from the details of what the new relationship will look like.

Time-limited negotiations

The existence of Article 50 (3) also effectively makes the Brexit negotiations a time-limited process at the end of which an outcome will be imposed if an alternative agreement is not reached. Time-limited negotiations differ in a fundamental respect from open-ended negotiations, such as peace processes which can drag on for years often reaching stalemate or apparent accord only to breakdown again. This explains why trade negotiations between the EU and non-member states have taken so long. There is simply an insufficiently compelling reason to find an alternative arrangement and people are naturally reluctant to make changes they feel unsure about. The pressure of time focuses the minds on achieving the best possible outcome in the time available. In addition, knowledge that a particular outcome will occur at the end of that time period allows the parties to continually assess progress against their BATNA as the deadline approaches.

However, experienced mediators will tell you that if an allotted time is given for a negotiation, the process will generally use up the entirety of that time – and possibly a little more. This is a variation of Parkinson’s law which states that "work expands so as to fill the time available for its completion." Human nature is such that it is hard for us to commit to anything before we have to and in negotiation this often results in deals being struck on the cusp of the deadline or on the steps of the court.

Those who are predicting that the broad shape of the exit deal will be clear within 18 months, because of the stated desire to put the proposal to the EU and national Parliaments in the autumn of 2018, would be well-advised to bear this in mind. Article 50 (3) allows two years for the process to be completed and it is likely to go to the wire. In addition, the possibility that that deadline could be extended by agreement of all member states, however unlikely that is, means that negotiations, as we have seen over and over again with other international summits, are likely to be going on till midnight and beyond on the final day. There is simply too much at stake to walk away before then or conclude a deal that might be bettered by further effort.

Besides, because the nature of negotiation is that nothing is binding until the complete package crystalises and is signed, any commitments given at any stage prior to the end of the process, including 18 months in, are liable to change. It would need to be a term of any agreement reached in less than 2 years that it was not open to any party to re-open negotiations in the remainder of the period if any deal struck early was to be regarded as binding.

Conclusion

The best overall strategy in my opinion would to set out at the first meeting after Article 50 has been triggered some broad statements of intent, mostly about the UK’s dedication to the process, and its overall desire to retain the best possible relationships with former member states, especially in the area of security cooperation, from its new position outside the EU. In so far as any further detail about specific UK objectives is required that is set out in the Government’s White Paper. The most important thing is to show up with an open-mind and a desire to maintain good relations.

That should be followed by expressing a willingness to receive any proposals which the EU27 wish to make as to how they would like our future relationship to look. Negotiators are always likely to achieve more by first listening to the needs and interests of the other parties, then tailor their own demands to meet those needs (which are often broadly the same). Unfortunately, the psychology of negotiating is that if I demand something from you, you are likely to refuse to give it to me, whether or not it is in your best interests, because of the false belief that if I want something it must be good for me and bad for you.

It stands to reason that it is going to be much harder for a group of 27 nations to agree a common position than one, especially given that some of the key players in the EU27 may change in the course of the next two years. The UK is fortunate in having a clear unfettered run at the negotiations and no election in prospect until the summer of 2020. It gives it the strongest negotiating position possible which must be in the interests of the country as a whole.

This proposal may seem unorthodox, but it tests the reality of the proposition that the EU27 need us as much as we need them. In addition, the other parties can be reminded of their own statements of principle if subsequent proposals appear to conflict with them. If the EU27 returned in a year or two’s time with a set of proposals to put to the UK, my own belief is that the vast majority of it would be acceptable to the UK and we could spend the remaining time focusing detailed negotiations on the other parts over which there were different views. It is very likely in these circumstances that it would be the EU27 that would be asking the UK for an extension to the two year time period which could be assessed against the alternative of exiting with no arrangement in the circumstances that existed at that time.

In the meantime Whitehall’s available resources would be best used by preparing potential new trade agreements with non-EU countries, devising a new immigration policy and the raft of other issues that need to be addressed as set out in the White Paper, so that these are ready to go at the end of March 2019.

Iain Christie is a barrister, mediator and former FCO legal adviser who has conducted negotiations on behalf of the UK at the Council of Europe, EU and United Nations. He is Secretary of the Civil Mediation Council and Vice-Chair of the Bar Council ADR Panel. The views expressed are his own.