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Thoughts on Deals and Conflicts

Checkmate in three moves. How the UK cornered itself on Brexit

I propose that the Government of the United Kingdom has taken three negotiation decisions that together, unless they are changed, make a good deal impossible.

First, a triple disclaimer: (1) I deeply regret the UK´s decision to leave the European Union. But I acknowledge that there are perfectly good reasons for doing so. (2) The Brexit negotiations are among the most complex negotiations in history, with extraordinarily high stakes. There are no simple strategies for it. And I am just sitting here in my armchair. (3) The responsibilities of the UK Government of course extend far beyond negotiations, and there may be excellent political reasons for its decisions. This is not for me to judge. As a matter of fact, I admire Prime Minister Theresa May´s sense of duty and dogged determination.

But I also believe that none of this should keep us from learning valuable lessons from her three unfortunate decisions. (1) To leave the single market and the customs union, (2) to hold snap general elections, and (3) to invoke Article 50 on 28 March 2017. While not made in that sequence, these three virtually guarantee that there cannot be a good negotiated agreement.

  • The decision to leave the single market and the customs union

In January 2017 the Prime Minister put forth her government´s objectives for exciting the EU. She explained that the U.K. would make no attempt to remain in the European single market because that would mean accepting so many conditions from Brussels that “it would to all intents and purposes mean not leaving the EU at all.” She also explained, a bit less stringently, that full membership of the customs union could not be maintained either. (You can find the relevant parts of the speech below).

This means that the border between Northern Ireland and the Republic of Ireland will become a customs border. It makes a physical border unavoidable - unless an ingenious new way of controlling food and animals is invented.

Or unless Northern Ireland stays in the customs union. But this possibility was ruled out by the results of the snap elections of June 2017.

  • The decision to hold snap general elections

The Prime Minister announced a general election with the aim of strengthening her hand in the Brexit negotiations in the summer of 2017. It was held on short notice on 8 June - and unexpectedly saw the number of Conservative seats fall.

The result was a hung parliament. Theresa May´s minority government now depended on the Democratic Unionist Party (DUP). And the DUP categorically rejects Northern Ireland´s continued presence in the customs unions, which it views as diminishing its position in the United Kingdom.

This means that an agreement is currently only possible if the EU decides to cease physical control of its own customs area. This would call into question the integrity of the entire project for the remaining 27.

They may still agree to it, if doing so seemed preferable over the alternative. But the UK had given away any leverage it had with the third decision:

  • The decision to invoke Article 50 of the Treaty on the European Union (28 March 2017)

The Prime Minister signed a letter invoking Article 50 on 28 March 2017. It was delivered to European Council President Donald Tusk on the next day. This means that the EU treaties will cease to apply two years afterwards, unless the EU and the UK agree to extend this period. Had the notice not been given, the alternative of never-ending negotiations would have hung over the parties. Negotiations, that in the eyes of the (remaining) Europeans will inevitably see their continent diminished. Negotiations, that consume precious resources at a time when virtually all other parts of the globe require urgent attention. Faced with such a dire alternative, the 27 may have decided to compromise on the border question.

But that threat is gone. Sir Ivan Rogers, the UK´s former representative to the EU, has called the decision a “fateful error” in a recent speech at Liverpool University: “It gave to the 27, who had, by the morning of June 24th (2016), already set out their “no negotiation without (Article 50) notification” position, the first couple of goals of the match in the opening 5 minutes.“

So, does all this mean that the EU will “win”?

Football matches and chess games seem to suggest as much. Well, my headline apparently got your attention, so I stand by it. But to infer from it that the European Union could somehow emerge as “winner” from this negotiation deadlock would be mistaken. In fact, the opposite is true.

As negotiators we do want the other side to realize that they are stuck in a corner. But we would prefer for them not to know that we know. And we certainly do not want to stick it to them. Especially if the whole world is watching.

The Europeans could attempt to follow the sage advice of William Ury, and try to “build a Golden Bridge” across the chasm: They could try to reframe the UK´s retreat from an untenable position as an advance toward a better solution (William Ury, Getting Past No. Negotiating in Difficult Situations, 1991).

From all that I know about the chief negotiator and his deputy - Mr. Barnier and Mrs. Weyand - I have no doubt that they will. I am not so sure about the other side. Some brexiters may prefer to jump from that bridge, rather than cross it.


From the January 2017 speech by Prime Minister Theresa May on the UK government´s objectives for exciting the EU:

„But I want to be clear. What I am proposing cannot mean membership of the single market. European leaders have said many times that membership means accepting the ‘4 freedoms’ of goods, capital, services and people. And being out of the EU but a member of the single market would mean complying with the EU’s rules and regulations that implement those freedoms, without having a vote on what those rules and regulations are. It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country. It would to all intents and purposes mean not leaving the EU at all. And that is why both sides in the referendum campaign made it clear that a vote to leave the EU would be a vote to leave the single market. So we do not seek membership of the single market. Instead we seek the greatest possible access to it through a new, comprehensive, bold and ambitious free trade agreement.“

„I know my emphasis on striking trade agreements with countries outside Europe has led to questions about whether Britain seeks to remain a member of the EU’s Customs Union. And it is true that full Customs Union membership prevents us from negotiating our own comprehensive trade deals. Now, I want Britain to be able to negotiate its own trade agreements. But I also want tariff-free trade with Europe and cross-border trade there to be as frictionless as possible. That means I do not want Britain to be part of the Common Commercial Policy and I do not want us to be bound by the Common External Tariff. These are the elements of the Customs Union that prevent us from striking our own comprehensive trade agreements with other countries. But I do want us to have a customs agreement with the EU. Whether that means we must reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it, I hold no preconceived position. I have an open mind on how we do it. It is not the means that matter, but the ends.“

BrexitGeorg Berkel