It was interesting to listen to Theresa May’s speech last week. Yes, it did contain plenty of the usual platitudes – deep and special, strong, cohesive, bespoke, take back control, imaginative, ambitious, etc. (see below) – yet there was something more here. The speech noted for the first time that compromise is needed on both sides of this deal. And by that I suspect she means both between the UK and the EU27, as well as the warring sides of the Conservative party.
Full disclosure - I voted to remain and I would rather that Brexit didn’t happen. But if it is going ahead, then there have been some unforgivable mistakes made by this government. From my background as a corporate lawyer, there are positions and discussions that it is ESSENTIAL to hold before any negotiation. Without those I would not go into a negotiation with a client, and yet Theresa May, David Davis et al seem to have sailed in regardless.
1. Know your position
We all know this one. I can’t start a negotiation if I don’t have a desired or achievable outcome. The problem for Theresa May is that – using the corporate analogy again - her executive team is in complete disagreement. In a company, the CEO would fire remove disloyal executives from the deal team. May doesn’t have that option, thanks to her lack of authority. A CEO who may be ousted at any time will never negotiate a good deal.
2. Don’t set deadlines
“If you don’t give me what I want by a fixed date, I will leave the negotiating table and the deal is off. It will damage me but I don’t care – it’s a point of principle.” said no negotiator ever. All deals miss their deadline to a greater or lesser degree, and it’s impossible to set a timeline at the beginning of the deal. There are always points where negotiations stall, even in simpler deals. And Brexit is not a simple deal.
3. Be ready to compromise
At last we are seeing some of that, but in the meantime we have wasted 12 months of a fixed two-year timetable.
4. Be a leader
See above. May’s strategic error of calling an election in June 2017 has destroyed her on this point. She has that unenviable position of being head of the negotiating team but with no authority over her own side. Each visible dissent from the Government’s position strengthens the hand of the EU.
5. Be able to walk away
Most, if not all, complex negotiations involve a moment when one side leaves the table. Often it’s the indication of a true red line rather than a negotiating ploy. May’s problem is that walking away means a hard Brexit and, whatever the Brexit-ultras might think, the pain that would cause may well be electoral suicide. There is no option to walk away in such a case.
So where does that leave us? May’s speech represented progress, but it has come very late in the game. It seems that the EU27 has already decided on a number of positions, evident from their first draft of the withdrawal agreement, because there was no counter position from the UK. The UK has also ceded control of the drafting, which is also an error. The less successful the negotiation, the higher the risk that the UK government falls, which may in turn leave us with no time for any other outcome that a hard Brexit. It is unlikely that the EU will grant some special, unique deferral in that case.
Big potholes remain, Ireland being the biggest, but also the rights of EU citizens. And remember that the EU has no obligation to offer any transition deal if it does not like the terms offered. As the details start to form, May may find that neither Brexiteer or Remainer will support her final position. And let’s be clear (as the PM might say), we have done NO real negotiation with the EU; rather all negotiation has been between the factions in the UK while the Europeans look on bemused.
“So let’s get on with it” were the final words of Theresa May’s speech this week. They would have been so much better if they were the final words of this speech had it been given in March 2017, not March 2018.