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Negotiating Brexit

EU Customs Union
Written by Simon Blackford

MPs have had the clearest possible choice. They empower the Prime Minister and his negotiators, or they accept a rotten deal. It is dishonest to refuse to empower the Prime Minister and then to throw up their hands in horror and demand a second referendum. We finally have a Prime Minister who has some understanding of negotiating realities. But he has no apparent way of dealing with MPs who are determined to stop Brexit altogether.

Let’s start with Tony Blair talking in his Memoir A Journey about the European leaders’ attitude to dealing with Milosevic in 1999. They were 

“prepared to commit to the necessary expressions of disgust at what was happening and demand that it stop, but were insistent that any military threat should explicitly rule out the use of ground forces. This, naturally, was an utterly hopeless negotiating tactic with Milosevic. It signalled from the outset that there was a limit to our seriousness of intent, and that provided he could withstand an air campaign, he could survive. It is amazing that people constantly miss the importance of the fact that any threat made in international affairs must be credible. The absence of credibility actually increases the likelihood of confrontation.” 

Whatever you think of Tony Blair he did understand a bit about negotiation.  Brexit? The negotiations do not contemplate the use of force but the political economic and cultural stakes are sky high. Any negotiating team must have a complete understanding of what both sides have to fear and what both sides have to gain from the different possible outcomes. And with Brexit the only real threat we have is no deal. The massive commercial interaction between the UK and the other members of the EU faces only one serious threat and that is the withdrawal of the United Kingdom without a deal.

So how do you negotiate Brexit? As Tony Blair says, the threat has to be credible.  There is just one way to go about taking advantage of that threat so as to get the best deal from Europe.  

The first step is to make sure that the Prime Minister has the full power to bind the United Kingdom and to obtain the best result through his negotiators. You cannot have a Prime Minister whose moves are undermined by reports of a Parliament that will not accept no deal. The first step is to make sure that the Prime Minister has the power to bind the United Kingdom to whatever deal he deems to be in the best interest of the United Kingdom.  That is putting a lot of trust in the Prime Minister but that’s the way it has to be. It is not an alien concept in that the executive has traditionally made the decisions about the use of force. You have to employ the same tactic here. You have to empower a Prime Minister whom you believe to be fully committed to achieving the best interests of United Kingdom. Bear in mind that the historical standing and future career of the Prime Minister is likely to stand or fall with the results of the negotiations. 

The next step is to make no deal credible.  That involves investing substantial if not massive resources in exploring the possibilities and consequences of no deal. No deal has to be a reality – something that really might follow the negotiations if we don’t get a better alternative from Europe.  In can’t be half-hearted. It has to be full-on. It doesn’t matter that it’s the last thing you want. Sending in ground troops against Milosovic was the last thing any leader wanted. The only way to negotiate was to make sure that the use of ground troops was a real option and that the Milosevic understood that it was going to happen if he didn’t do what Blair et al wanted.  Failing to have no deal as part of your negotiating strategy emphasises the limit to our seriousness of intent.

If you don’t take these steps and you fail to make no deal a credible reality – credible to those you are negotiating with and everyone else – you are going to end up with a hopeless deal that nobody on our side wants.

Of course in many political scenarios, it would not be difficult to endow the Prime Minister with the power to negotiate as best he could. If the government had a substantial majority, there would be little difficulty about entrusting the Prime Minister to obtain the best deal he/she could. In the present situation, with a minimal government majority and a cohort of MPs who are determined to flout the will of the electorate by ensuring that we remain in Europe, there is no real way of getting the best available deal.

So, what has actually happened?  Firstly, we have not put nearly enough research, planning, publicity, consultation and all the rest of it into no deal. Secondly, Many Members of Parliament persist in saying that no deal cannot be countenanced. The message to Europe is crystal clear. When it comes to it, the UK will not be able to resort to no deal. Europe can to a large extent do what it likes.  European leaders may have given a few sops to Theresa May and now to Boris Johnson to make it look as if they are achieving something which can be sold to the British people. Nothing more than that.

Our leaders and our Parliament have had the clearest possible choice. They empower the Prime Minister and his negotiators, or they accept a rotten deal. In order to implement the result of the referendum they have to do one of those two things. What they can’t do is fail to empower a negotiator and then complain that the negotiator has brought back a bum deal. They chose the bum deal option. They have ensured that that is the only way the referendum can be implemented. It cannot be open to Members of Parliament to fail to empower the Prime Minister and then to throw up their hands in horror at the hopelessness of the deal and say that a second referendum is required.

The referendum result can only be interpreted in one way.  Since the referendum did not make available to the electorate any indication of what deal it wanted, it can only be interpreted to mean that the electorate was voting for the best deal that could be negotiated by the government.  The fact that “the electorate did not vote for no deal” as some politicians have pointed out gets us nowhere. The electorate certainly didn’t vote for Theresa May’s deal. 

After three years of Theresa May being in the ring – not with one arm tied behind her back but in a straitjacket – we finally have a Prime Minister who has some understanding of the negotiating realities of the situation.  But he has no apparent way of dealing with the vast cohort of MPs who are determined that the result of the referendum will be overborne.

Let’s end with Tony Blair. In a recent article entitled “A simple referendum will solve Brexit – not a chaotic general election” he asks the question whether a no deal Brexit was mandated by the referendum. He, perhaps more than any other politician, should understand the importance of no deal in negotiating Brexit, and, for the purposes of negotiation making it a reality without which there is the most obvious limit to our seriousness of intent. That someone of his intelligence and understanding of negotiation should be driven to the illogicality of contemplating a second referendum illustrates only the depth of feeling which this issue generates.

Simon Blackford is a barrister.  

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Simon Blackford