WHITEHALL'S ENERGY is a welcome surprise: five position papers last 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.
Agreeing the position
There are always distinct internal constituencies. Think of a household buying a car: in a happy family, husband and wife, parents and kids get to weigh in. Similarly, when one company buys another, head office and divisions, marketing and production get on board first.
Turning to Brexit, HMG must align England with the devolved regions, get consumers and competitors of imported labour to reconcile and do 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 wrangled with its sundry elements. So far these have made for unity, but they place Barnier at a disadvantage as “first to speak”, with their airing at odds with normal diplomacy and a hostage to fortune and continued press tractability. The UK’s paper on data protection may also be seen in this light: a sop to the business constituency exercised on the topic but set to be disappointed on labour mobility.
The preliminary to negotiation is softening the other side up: trying for a split, setting deadlines and orchestrating the agenda. Both sides have 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 pressed his sequencing, with Davis so far unable to counter.
Think of Brussels’ position-papers as though the steering-wheel thrown out of the car by fifties dragsters playing “Chicken”. Then again, the UK is able to exploit sixty years of EU shakedowns, leaving it unpopular with other international traders. The prospect of deals with third parties has Brussels rattled, but places the UK uncomfortably in the hands of Trump.
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 meant appeals to public opinion. The EU has done well to make much of citizen’s rights, but has been mischievous in trying the same trick on Northern Ireland. Dublin has been more responsible without going so far as to break ranks outright. What’s more, the EU has pretty much reversed any advantage from its stagey defence of rights, with extravagant 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 constitutional leakiness is bound to embarrass it. The UK’s paper on dispute resolution is temperate but unyielding. It goes far to wrong-foot the EU with deft distinctions between jurisdiction and interpretation, largely lost on initial UK comment. And watch out for that final bill, destined to be exposed as essential glue for the EU27, rashly promising prizes for all.
Smoke and mirrors
Once negotiations kick in, it is time for meaningless detail intended to distract the other side. The EU is constitutionally well-suited to this sort of malarkey, 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. This gambit accounts for Brussels’ otherwise inexplicably repetitive “Essential Principles” on governance, functioning of agencies, administrative procedures and judicial co-operation. Whitehall has batted this bunkum aside with its own boilerplate responses on judicial co-operation and continuity of trade, covering substantive matters elsewhere. Home-grown smoke and mirrors may be found in protracted options for dispute resolution and customs.
Serious diplomacy is like good sex: first very slow, then very fast. The mechanics are simple. Stances are stated in confidential equivalents of the position papers which on this occasion have been ventilated. Negotiators then tease out community and divergence of outlook, parking the most trying of the latter for eventual resolution by principals. Sometimes, where differences on facts cannot be resolved in the room by 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. Note also that Barnier has insisted that for the time being, these 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 fragility of the EU’s unity.
Brexit is singular for the way in which the EU has paraded its stance. After some initial surprise, the UK has found its game face, taking advantage of the EU’s 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 failure with tough counterparties and its fundamental problem keeping together once the going gets heavy. Every negotiator knows that the real challenge is keeping the boss onside and selling the deal back home.