Can strategic negotiation principles point to the missed opportunity with Brexit? Could we have avoided our current impasse with the ‘right’ negotiation process? Hindsight is a wonderful thing, but there are examples of other countries using referendums as effective negotiating tools with the EU.
Denmark with the Maastricht treaty, and Ireland with the Lisbon treaty, applied a ‘referendum-rejection-renegotiation’ (3R) model - using the result of a first referendum and the prospect of a second referendum as leverage for renegotiation with the EU before a second vote. This gave popular legitimacy to the agreed changes, while crucially separating the political from the economic relationship with the EU.
It’s not traditionally been the British approach. Major negotiated opt-outs from the Euro, Schengen and social chapter of Maastricht, without offering a referendum. Blair prepared a referendum on the 2006 Constitution treaty but not for the Lisbon treaty that replaced it, following France and Holland’s referendum vetoes. In so doing, the UK lost both popular consent for the evolution to the political relationship with the EU and the negotiating power of the veto.
Cameron could still have used the non-binding referendum in 2016 as a legitimate platform for a substantial EU renegotiation followed using a 3R model. He instead opted for a short negotiation, with no real bargaining power, focussing neither on EU nor member interests. Not a masterclass in negotiation.
Could May have retrospectively done this? She voted to remain, so lacking legitimate authority to interpret Brexit for leavers. Her ‘Brexit means Brexit’ mantra underlined the lack of power she felt to manoeuvre. She was empowered only to deliver her interpretation of a hardline-enough Brexit deal.
A Brexiteer prime minister would have forced Brexiteers to negotiate amongst themselves what Brexit actually meant. An even more divisive EU and Parliamentary process perhaps, but making another referendum legitimate to break the deadlock.
They could have also used their legitimacy with leavers to run a 3R model retrospectively, even without breaking deadlock as the reason. So negotiate material exceptions on freedom of movement and sovereignty, then claim it as a new EU relationship, beyond the status quo. A second public vote, with an updated remain option on the ballot, could then be offered.
This would have effectively returned the 2016 referendum to being advisory, and used it as a basis for renegotiation. It might have appealed to a Johnson or Gove. They satisfy their quest for general popularity, consolidate future election chances, at the affordable cost of splitting from ERG members.
Invoking Article 50 may have put paid to this possibility; ironically, as initiated by a remainer appealing to the Supreme Court. We may have another referendum, to break the deadlock or to assent to a deal. This still misses the opportunity to renegotiate seriously the political and immigration aspects of EU membership.
You might point to a fundamental flaw in all this: the assumption that the EU would ever agree exceptions to freedom of movement. Jean Monnet’s legacy looms large. His EU vision, including the four freedoms, is ardently protected. But unprecedented doesn’t mean impossible, especially if you have negotiation power. The fundamental interest of the EU institutions is peace – and the price of peace is surrendering some control and showing flexibility.
Indeed, Macron hinted at this flexibility when he mentioned ‘concentric circles’, a far more elegant solution than the 1990s ‘twin-track’ concept, to describe EU membership without commitment to all its ideals.
If the greatest threat to peace is far right nationalism, then the fuel is immigration narratives spanning economic, security and identity issues. Immigration control is perhaps the greatest single area of common ground between leavers and many remainers (a New Economics Foundation poll in November 2016 found 56 per cent of them favouring caps). Recognising this fundamental concern would have been in the EU’s interest. It would also help immigration control move to mainstream politics, and out of the hands of ultra-nationalists.
Sometimes in negotiations it helps to return the other side to their fundamental interest. The 3R model might have done that. Faced with the choice of Britain exiting or making an exception on the single market for one country, they may well have accommodated the latter. Any single tenet is dispensable for EU survival and progress.
Now they are left with Britain exiting, or remaining after a second referendum that further reduces the legitimacy of the EU for leavers. They may expect the UK’s departure, even with a deal, to bring it a short-term economic shock followed by a slower growing economy. Perhaps the UK will rejoin in a decade or two, chastened and less likely to seek exceptions.
The EU will also fundamentally want to deter other countries from having referendums, an interest shared with the member states’ leadership themselves, so they will tread carefully to avoid a ‘not in my name’ response to punitive treatment of Britain. Otherwise there will be an increasing desire to exit an illegitimate EU, with people willing to pay a price for it.
That’s all reasonable, but the EU has been weakened by the Brexit saga. If further referendums were to happen, then another country could choose a 3R negotiation to move the EU towards a ‘concentric’ model. If so, in the long run the Brexit pain will not have been in vain. The EU could be returned to its fundamental interest, and offer a roadmap for Britain to return more quickly. Crucially it would be with the legitimate support of the vast majority of its people.
Paul Alexander runs a strategic negotiation practice www.alexandassoc.com @Negoziate
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