Could the right negotiation process have brought the EU and Britain closer, not torn them apart? Paul Alexander looks at how a different negotiating approach, and a different Prime Minister, might have handled Brexit in a more consensual way.
Hindsight is a wonderful thing. But other countries have managed to maintain the EU’s legitimacy by timing referendums to coincide with Maastricht or Lisbon treaties. John Major chose instead to negotiate opt-outs from the Euro, Schengen and Social Chapter. Tony Blair considered a referendum on the 2006 Constitution Treaty but, following France and Holland’s referendum vetoes, didn’t when he replaced Lisbon. So popular consent for an evolution of the political relationship, and the negotiating power of the veto, were both lost.
Denmark with Maastricht, and Ireland with Lisbon, essentially used a ‘referendum-rejection-renegotiation’ model to get both opt-outs and popular consent with a second vote. This ‘3R’ approach risks rejection in a second referendum, but gave legitimacy to changes in the EU relationship. Crucially, it also separated out the political and economic relationship.
David Cameron could still have used a non-binding referendum as a legitimate platform for a substantial EU renegotiation and second vote, and thereby created a ‘3R’ model opportunity, without a treaty to pass. He instead opted for a short negotiation, with no real power, focussing neither on EU or member interests. Not a masterclass in negotiating either with Europe or the British people.
Could May have done this? She voted to Remain, so many Leavers felt she lacked the legitimate authority to interpret Brexit. 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 about what Brexit actually meant. That would, perhaps, have meant an even more divisive EU and parliamentary process, but it would have legitimised the use of another referendum to break the deadlock.
That Brexiteer PM could have also used their legitimacy with Leavers to retrospectively run a ‘3R model’, even without invoking the need to break the deadlock as justification. They could thereby have negotiated material exceptions on freedom of movement and sovereignty, and claimed it as a new EU relationship, beyond the status quo, before offering a second public vote with an updated Remain option.
This would have effectively returned the 2016 referendum to advisory, and used it as a basis for renegotiation. It might have appealed to Boris Johnson or Michael Gove. They could have satisfied their desire for general popularity and consolidated their future election chances at the affordable cost of splitting from ERG members.
Invoking Article 50 may have put paid to this possibility. We may now have another referendum, to break the deadlock or to assent to a deal. This has missed an opportunity to seriously renegotiate the political and immigration aspects of EU membership.
But surely the EU would never agree exceptions to freedom of movement? Perhaps, but just because something is unprecedented doesn’t mean it is impossible, especially if you have negotiation power. The fundamental interest of EU institutions is peace. The recent summit between Angela Merkel and Emmanuel Macron meeting combined a replica of the Compiègne train wagon where the First World War armistice was signed with references to the EU’s origins in steel and coal co-operation. The price of peace is surrendering some control. It is also flexibility.
If the greatest threat to peace is nationalism, immigration narratives are the fuel for the far right. A recent Migration Advisory Committee Report found that EU citizens working here paid more in tax than they withdrew in benefits, helped create new jobs and did not drain public services. Yet many hold the opposite view. Immigration control is perhaps the greatest single area of common ground that Leavers shared with many Remainers (a New Economics Foundation poll November 2016 found 56% of them favoured caps). Recognising this fundamental concern, and the interest in meeting it, would have been in the EU’s interest. It would also have helped immigration policy move into mainstream politics, and out of the hands of ultra-nationalists.
Macron hinted at such flexibility when he mentioned ‘concentric circles’. This is far more elegant than the 1990s ‘twin-track’ concept, and describes EU membership without commitment to all its ideals. Recognising, and acting upon, this fundamental interest would be difficult enough without Jean Monnet’s legacy, which protects the four freedoms. Unfortunately, legacy-seeking can be subsumed into special interests, or mistaken for the ultimate interest.
Sometimes in negotiations it helps to force the other side to return to their fundamental interest. The 3R model might have done that. Faced with the choice of Britain leaving, or making an exception for one country, they may well have accommodated the UK’s preference. Any single tenet is dispensable in the interests of EU survival and progress. Monnet might have rather liked the idea of concentric circles.
Now the bloc is left with either Brexit or Britain remaining after a second referendum that further reduces the EU’s legitimacy for Leavers. They can expect the UK’s departure, even with a deal, to cause 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. As in the film Cool Hand Luke there was a failure in communication, and an extended time in the cooler, but the UK got it in the end.
The EU will also want to avoid any other country calling a referendum, and that sentiment is shared with the countries’ own leaders. So they will tread carefully to avoid a ‘not in my name’ response if Britain is treated punitively. Otherwise there will be an increasing desire to leave an illegitimate EU, with people willing to pay a price for it.
The EU has been weakened by the Brexit saga. If further referendums were to happen, then another country could opt for a 3R negotiation to move the EU towards a ‘concentric’ model. If they did then in the long run the Brexit pain has not 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.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Paul Alexander runs a strategic negotiation practice @Negoziate.
“David Cameron could still have used a non-binding referendum as a legitimate platform for a substantial EU renegotiation and second vote, and thereby created a ‘3R’ model opportunity, without a treaty to pass.” I can see the charm of this, but I don’t think it would necessarily have made things better. Effectively the first referendum would have widely been perceived to be on the question “Do you want me to try to get a better deal with Brussels” and would probably have passed with a large majority. The UK would then have been in the position it was in in January 2016, only a year later.
I think though that the author is right that the whole situation would have been helped by a Brexiteer prime minister, who would have been forced to make the kind of hard choices Theresa May has made. As it is, Theresa May can’t avoid being accused of wanting BRINO, whatever she does.
Thank you very much for reading the article, and your thoughts. I appreciate your argument, but the article assumed that the PM would set 2 – 3 questions / options on the first referendum to indicate positions on the economic, sovereignty and immigration aspects of membership. This would give the PM a clear mandate, so create power, in their negotiations with the EU. It would also make clear to the EU that if they didn’t show flexibility in the areas of most concern, the second referendum would result in the UK exiting. This would most likely lead to a much more material renegotiation. Best Paul
” the article assumed that the PM would set 2 – 3 questions / options on the first referendum to indicate positions on the economic, sovereignty and immigration aspects of membership. ” What would they have been? I can imagine the referendum getting large majorities for a. yes, we want more economic sovereignty, b. yes, we want more control over immigration. c. we want free trade with the rest of the EU. But I really am not convinced that this would have helped David Cameron get much more from Angela Merkel.
Let me make an alternative proposal. This is that in referendums of this kind, where the decision is whether or not to change the status quo, the proposal should be rejected if voted for by = 60%. If a number between 50 and 60% vote for the status quo to be changed, the referendum is repeated in 12 months time, and then the proposal will be acted on if and only if it attains > 50% of the vote.
This has the advantage that a. in Referendum Number 1, people will be cautious about just voting to change the status quo to get a better deal (because they risk going over 60%) b. There will be 12 months time for the supporters of the status quo to gather support for it. c. Nevertheless, if a simple majority persist in wanting a change, they will get it.
I think it is (far) too late to change the rules of the 2016 referendum, but I suggest this model for the next Scottish Independence referendum, which I fear may well be coming, where I think a narrow vote for independence will have many of the same problems as the narrow vote for Brexit.
Thanks for further reply. On the questions – if it did establish, for example, that the majority were pro the economic relationship, but with a wish to change the political and freedom of movement aspects then that would have given us both a framework and mandate with which to renegotiate. We are missing both a model, and mandate, now. That is not to say Merkel, and the EU, would have assented to changes but it would have given a higher probability. It would also have crucially been seen as legitimate by the majority of the British people. On your 60% point, there’s no reason why you can’t have that too and agree it would be sensible.
At every turn, the right of Leavers to vote leave is questioned, de-legitimised and attempts made to undo the result in order to favour Remain partly or wholly, preferably wholly. Many people have not understood that this delegitimises parliamentary democracy in this instance, and that it is taken for granted that the EU should override national electorates. Many people, almost all who support the EU federalisation project, understand the implications of seeking to overturn the Brexit referendum result, despite Cameron’s assurances, despite May adding her assurances and promises, despite Parliament honouring the result and voting through the requisite legislation. For Europhiles, the federalisation of Europe means everything. Anything can be tried to sabotage Brexit as far as these people is concerned. When the boot is one the other foot, they will complain loudly. Where will this end? There are no rules anymore. May and her Remoaners make it up as they go.
Well spoken Jacob Jonker. Letting a Remainer be PM and run Brexit is almost as dumb as letting a Leaver lead HMG’s Opposition to be nominally against Brexit. All the Europhiles are doing is screaming about how leaving is a bad idea. Well, give the British public a reason, a vested interest to stay in the EU then! The UK went through the worst of the global financial crisis of 2008/09 whilst being an EU member state. Deindustrialisation of the North and the heartlands in favour of concentrating everything on the finance market in London happened in the 80s and 90s with the UK being a full member of the EU. The EU has done NOTHING to benefit the UK whatsoever, and arguably EU membership has proven to be nothing more than a fig leaf to provide cover for the increasingly detached political establishment in the UK from its own voting populace. Without EU membership Parliament is now shown up to be the decrepit useless collection of politicians out of touch and out for themselves with nothing to hide behind as an excuse. You can’t reform British politics and restore it with the UK still in the EU.
What could have been so different for the UK’s Brexit negotiations with the EU was if Theresa May’s government had been serious and ready to prepare for No Deal from the very outset, as well as been frank with the domestic population about what potential changes and losses in their daily and national life/economy they will have to endure in order for May’s red lines to work. In all due fairness her red lines did make sense. The problem is the spoilt British public and spoilt politicians in Parliament who whine and scream about the sky falling down with No Deal when the vote for Brexit has already been cast and effort should be made at making the best of it. Not trying to frustrate the implementation at every turn of the process. Until Brexit actually happens, ANY CONSEQUENCES ARE JUST CONJECTURE.
Fully appreciate the concept and reality of the 3R approach, but the really important fact here is that the 2016 referendum was only ‘Advisory’. The ‘interested groups’ used the result to corrupt this advisory nature into, as is so often now quoted, an indicative people vote. The people did not vote on what Brexit might mean because they did not know what it meant. Now that more, hopefully, understand, the negotiations with Brussels should be restarted anew.
“The EU has been weakened by the Brexit saga”. This opinion might not be shared by the continental political leaders. Opinion polls on the continent show an increase of support for the EU among voters, and nationalist political parties have removed or postponed indefinitely Dexit, Frexit or Italixit from their political platforms.
My original version did actually say ‘may have been’, and further edits made it sound more definitive than meant. So take your point. However, if Brexit happens there will be a pathway out and an assumption that the UK drama will not need to be repeated to follow them. They will have learnt hard lessons on the referendum process and implementation. So I was looking longer term, five or ten years. Even if the UK has a slower economy, it may harden the resolve of those who argue it is a price worth paying.
The EU negotiation strategy was formidable and perfectly implemented. They faced the challenge of holding together 27 different countries, each with veto power, and they succeeded to push the UK into a corner which created a powerful popular movement in favor of the EU and is threatening to break apart both traditional parties and five rise to a French style centrist party.
Now all they have to do is to tie the screws. If the UK doesn’t conform to the new world order, not only both Tories and Labour will be lost, but they will lose territory, Scotland, Northern Ireland and Gibraltar in the process and they will lose control of the financial sector.
Sovereigns used to fight wars for this sort of wins and now they are having it for very cheap.
Is your point that you could have negotiated your way against this formidable opponent? Please think again.
Thanks Nikita. Yes the EU are formidable negotiators and holding the 27 countries together is an extraordinary accomplishment (in my view). That doesn’t mean they are not open to compromise, and modifying individual relationships, especially if faced with a country negotiating with a clear popular mandate behind it. The Denmark and Irish examples in the article demonstrate this, as does Switzerland, all countries arguably much less influential than Britain.