Tuesday, 22 November 2016

Revealing what?

One of the main arguments being used by the UK Government for wanting to use the royal prerogative to trigger Article 50 rather than hold a parliamentary debate is that debating the matter in parliament would reveal the government’s hand and its negotiating stance.  It’s an argument which at first sight appears to be a statement of the obvious - until one starts to question what it actually means.
In this case, what is it that the government doesn’t actually want to reveal in advance?  What mysterious cards does it have in its hand which it doesn’t want to show the other side?  And to what extent would a parliamentary debate really reveal anything at all?
I’ve been involved in commercial negotiations in the past, and I know that there are two key things that anyone entering into a commercial negotiation will never want to reveal.  They are:
·         What is our minimum acceptable end-point?, and
·         What are we prepared to concede to reach an agreement?
Now, if that was what May and her team were trying to keep quiet, I could understand it.  I’m not sure that I’d believe it – I don’t think they have a clue on either question – but I could at least understand it.  But the one thing that anyone entering a commercial negotiation has no choice but to reveal at the outset is ‘what is our initial starting point for what we want?’.  It’s impossible to negotiate anything without a starting point.  In some cases, of course, it’s reasonable to wait for the other side to say what it wants, but when the other side is entirely happy with the current situation, and you’re the one who wants to change it, that’s a hopelessly unrealistic expectation.  The initial pitch has to come from those who want change.
The problem with holding a parliamentary debate isn’t that it would reveal the government’s end-point - it is that it would force the government to reveal its starting point.  And since it doesn’t have one, I can understand why they’re putting so much legal effort into avoiding revealing the fact.


Democritus said...

By March they have to decide something because as you say the Commission will invite and expect them to make a starting proposal and it will then take soundings from each of the 27 governments before identifying those areas where there seems to be a degree of consensus and those where serious divisions exist between the UK's position and those of the bulk of the 27 remaining member states.
I don't think the Cabinet has even begun to reach it's own settled view on the central question of the customs union or common tariff area yet, but whichever way that goes i'd anticipate resignations. Politically the first order problem is what opening position will be most effective in preserving government and Tory unity. There's a lot of testing the waters going on currently with different approaches being briefed as much to gauge reaction as anything. I expect the lowest common denominator will eventually lead to us asking ever so nicely, probably via some sort of green paper for a fantasy 'full English' Brexit of full single market access inc. passporting, but no financial contribution or ECJ oversight or common foreign & security policy concurrence plus the right to introduce selective immigration controls and allow the govt to ban EU citizens (as is occasionally done to American citizens) from entry. Even that may not be enough to stop Liam Fox and the headbangers accusing them of betraying Brexit, but since some Tories will rebel either way, the real key is to keep the opposition parties from combining and specifically to keep the DUP effectively on the government's side. Of course the other 27 will blow us a unanimous raspberry amid much tut tutting, eyebrow rolling, crocodile tears - and then they will all each try to calculate what their countries specific objective should be and where their red lines are. Most will keep their cards a close secret, but in France and then Germany they will be inextricably caught up in the Presidential & Bundestag election campaign dividing lines and the results will determine if any deal is able to be counter-offered by the 27 whatsoever - gridlock is after all the natural state of the EU and it is us not them who stand to turn into pumpkins if no deal is reached before the clock strikes midnight in March 2019.

Spirit of BME said...

I think I am in tune with Democritus on this one.
There is in my opinion a mass of past evidence that the royal prerogative is an instrument that can do and undo international treaties and I think HMG is keen to defend that line in order to stop “here today gone tomorrow” politicians peddling short term considerations for political gain into the game and demanding input into every other treaty large or small.
The other reason that this instrument is used that long ago it was recognised that 1000+ politicians in parliament have little or no experience in trade negotiation or come from a background where they have been involved in hard and do or die agreements. So, would you hire these people to come to a collective decision to save your life. I think not, you would go for a trained lawyer.
The impact of European political events is a clear consideration and the EU being in denial about the financial impact on its operation makes it difficult to have a sensible discussion at this stage.
I suspect that the Supreme Court will uphold the current ruling only on a point of technical law based on the 1972 Act and I think that will end up in chaos and confusion.