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Shadow Boxing: A commentary on the Brexit negotiations so far

Miles Saltiel, September 2017

The sequence of Brexit negotiation papers shows the emergence of a strategy of ‘snares and lures’ on the part of the UK, together with a policy of delay and the lack of a money offer. Some see this as rectifying the gradual start for which the UK has been roundly criticised. Maybe so. In any event, it is certainly intended to overcome the EU’s restrictive timetabling. Such guile has borne scant fruit so far, save to take the two sides to deadlock – possibly its intention. This would be despite the widespread view that the timetable benefits the EU, with evidence accumulating that the UK has been choosing to temporise for at least a month. This could be the slow-burn equivalent of the ‘row of the summer’ promised by David Davis; or to herald May’s Florence speech on 22 September; or to undermine Barnier’s report to his principals in October; or to await Merkel’s expected re-election; or (should this last fail to animate an outbreak of sweet reason) to foreshadow the announcement of a ‘Plan B’ to grab the attention of the EU’s principals.

  • The paper trail left by the two sides offers almost everything needed to understand the Brexit deadlock. Instead it has been neglected. The European press isn’t sufficiently interested to go beyond its official sources; while Britain’s discord has reduced once serious journalism to partisan hyperbole, with releases of negotiation paperwork shoehorned into incendiary headlines and the house line. Thus this note.
  • The UK’s papers generally follow May’s Lancaster House speech in January and their accumulation goes far to rectify any early lack of preparedness.[1] Much appearing as current domestic controversy, eg, transitional arrangements, was prefigured in early remarks by both sides.
  • Stickiness about the ECJ is less about a fusty concern for sovereignty and more about pragmatic economics. The UK’s dynamic service sector doesn’t trust the European court and can’t afford to place its future in hands it regards as unreliable.
  • Some things are simply missing: the EU’s sequencing excludes any but indirect references to future trade in goods and services. So far, the UK has said nothing about financial services and neither side has issued dedicated paperwork on transition. In addition, the EU is almost entirely silent on its ‘flanking policies’, which include agriculture, fishing, environmental protections and company law.
  • The EU’s objectives show up as largely transparent: first, to preserve the integrity of its own institutions and budget; then order, aligned with a mercantilism that at this stage is generally defensive. The UK’s objectives also appear as order, plus continuity aligned with mercantilism of a more aggressive character.
  • The EU’s tactics embrace legalities, its trademark sequencing, and deployment of the tame European media. Although Brussels apparently seized the agenda at the outset, in some senses Barnier was not the first to speak. Indeed, notwithstanding partisans’ faith in the EU’s superpowers, the paperwork shows that Brexit caught Brussels on the back foot.
  • The UK has made hay of late, pointing out that the EU’s legalisms are not invariably compelling. As might be expected, its own positions are more given to pragmatics. There is uncertain evidence of a change in approach after the June election: in any event since mid-July, papers show increasing guile, trying to make covert mileage on the agenda and to overcome the EU’s sequencing, in particular with its six ‘Future Partnership Papers’. Less than game-changers, they have left the other side frustrated and testy.

Historians of the early stages of the Brexit talks will be unusually well-served. Both sides have aired their thinking publicly on the Internet, in what diplomats call ‘non-papers’. These may be ignored in battle but may be useful in buying time or to mollify local interests. Unfortunately, the lay public may reasonably be disappointed with the seriousness of any attention to the paper-trail in our own time. With the exception of the odd summary analysis (see here for a good example from Hugh Bennet of Brexit Central), no-one has looked at the negotiation documents in the round, that is with respect to each other, as to their place in the diplomatic process, and as signals to domestic constituencies and third parties.

In the UK at least, the papers have been seen through lenses so partisan as to detract from their real meaning. The purpose of this note is to correct this, with a view to adding to our understanding of the part played in the Brexit negotiations of

  • agreeing the stance internally and maintaining unity thereafter;
  • putting pressure on and wrong-footing the other side; and
  • throwing up makeweight issues to distract the other side or as eventual give-aways.

Note that we may not be able to enjoy these insights indefinitely. If the talks get over the hump of the next month or two, both sides could find it serves their purposes to abandon the unprecedented project of ventilating their positions in this way.

Throughout this note, documents are characterised by length, expressed as number of pages. This is always an imperfect gauge, worse still in this instance as both sides pad out their paperwork. All EU documents have a cover page, so its ‘Position paper’ ponderously entitled ‘Essential principles on ongoing union judicial and administrative procedures‘ offers readers a total of two pages out of its nominal three. Some of the UK’s position papers have not just a cover sheet but also a blank inside front cover: its position paper on Privileges and Immunities has less than 1½ pages of text out of a nominal count of four pages. Why does this matter? First, it contributes to the shadow-boxing theme of this note’s title. Second, it impedes a measure of the negotiators’ priorities with a count of their text. Nonetheless, the appendices make an attempt to do so.

It is impossible to tell how the UK’s election affected the sequences we describe. From July onwards, the UK may be observed to develop a number of negotiating strands, reasonably to be seen as guileful. These include the six ‘Future partnership papers’, which seek to draw the EU team beyond their self-inflicted restrictions; a steadfast failure to offer any cash; and temporising paperwork bound to slow things down. It is beyond any outsider to know how this might have played out had the election gone otherwise.

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