22 May 2017

The UK’s current approach to secrecy in the Brexit negotiations is especially counterproductive in the face of increasing EU transparency, says Oliver Ilott.

The European Council has published its “transparency regime” for the Brexit negotiations, committing the EU to a far greater degree of transparency than anything that we have seen in the UK. It sets out the ten classes of documents that could be issued by the Council, the Commission and member states, along with a default level of public disclosure for each.

We already know more about the EU’s negotiating mandate and negotiating team than the UK counterparts, but this new transparency regime goes further, committing the EU to publishing:

  • European Chief Negotiator Michel Barnier’s negotiating documents (defined as “Agendas for negotiating rounds / EU position papers / non-papers / EU text proposals etc.”)
  • the Council of member states “directions to the negotiator” on a case-by-case basis
  • UK “positions, draft proposals, non-papers, etc.”, again on a case-by-case basis and subject to “prior consultation”.

And yet, on the other side of the negotiating table, British politicians remain stubbornly wedded to the idea that there will be “no running commentary”.

That is a mistake.

The EU’s commitment to transparency in these talks is not born of naivety. It is a negotiating strategy calculated to increase its bargaining power. It is also a recognition that much of this material would leak anyway.

The EU wants to be able to control the public narrative around Brexit. Two weeks ago, the EU published its draft negotiating mandate. Its proposals on the prerogative of the European Court of Justice, the rights of EU citizens in the UK and the sequencing of the negotiations were in all the UK papers. Having taken a self-imposed vow of secrecy, Prime Minister Theresa May was unable to respond to any of the issues of substance.

The European Council also realises that a degree of transparency will strengthen its hand by reducing room for manoeuvre. Politicians are bound by what they say in public. Every time the EU publishes a position on a given issue, it creates a political pressure to maintain that position.

Transparency reduces the ability to compromise. I expect that the “case-by-case” approach to publishing instructions from member states to Michel Barnier will be used to box him in on the most contentious issues.

The EU is thinking of transparency as a tool – useful in some places, less useful in others.

A degree of secrecy is necessary to allow negotiators the space to think innovatively, to propose and weigh potential compromises. So, the EU stops short of a commitment to total transparency. It wants talks to be open, but not wide open.

The UK on the other hand wants to run as much of the negotiations behind closed doors as possible. That may just be the preferred operating style of this government or it may be a conscious decision. Whatever the reason, it will play right into the EU’s hands.

Comments

My personal negotiating position would be to say to UK businesses that the normal business contracts with other EU businesses remain as pre Brexit. If the businesses say they cannot, tell the EU businesses to take the matter up with their own government. If their own government say they can't do anything because of EU regulations, point out that their government has abdicated their own responsibility and given it to the EU.

Just for fun read Adults in the Room before jumping to conclusions about negotiating with Brussels. It may be well over the top but there are some interesting lessons for us all there.

Where was this same lofty concern for transparency during the Greek debt crisis negotiations with Greek finance minister Yanis Varoufakis? Transparency à la carte is no transparency at all.

No, it's not. It's a tool and a tactic, enabling (amongst other things) the EU to claim more democratic consent for its positions than the UK government can for its own. As has been said, this is not a card game, nor is it analogous to a business deal. It is politics and power and Brussels is embarrassingly better at the former as well as enjoying much more of the latter.

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