paul alexanderCould 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.

donald tusk theresa may

Theresa May and Donald Tusk at a bilateral meeting in December 2018. Photo: Number 10 via a CC-BY-NC 2.0 licence

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.

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