One of the most overused and lazy words in the Brexit debate is the word “compromise”.
In how many articles on Brexit will you find some working of the phrase: everyone knows both sides will need to compromise? Why does the EU need to compromise? To get an agreement, will be the answer. But it wasn’t the EU that decided to end the relationship. The UK was the one that walked. And yet the EU is expected to bend its rules, to “compromise” to facilitate the UK?
It is not going to happen.
Picture this. Someone breaks into your house, intent on helping themselves to your goods and valuables. You confront them. Should you “compromise” with them? “Meet them in the middle”? “OK, you can take these two paintings and this watch. Maybe that laptop. That work for you?” I somehow don’t think so. Your sole intent would be to see them out the door as quickly as possible, preferably into the custody of the waiting gendarmes.
Two people have been in a relationship for a long time. One day, one says to the other:
- “I’m out of here. Too many opportunities out there. So, what I suggest is that I stay with you on weekends and go elsewhere during the week.”
Shocked, the other partner says
- “You are with me or you are not with me. End of….”
- “Could we not compromise? Maybe I could stay Monday as well”.
- “This conversation is over.”
Some things in life are just not negotiable. The real reason the word “compromise” appears so often in articles about the Brexit negotiations is because most people know very little about the realities of negotiation. They see negotiation as “haggling”, as when you buy something in a market on holidays.
- “Señor, how much is this bowl?”
- “Normally, it is €25, but because of your nice smile I give it to you for €20.”
- “I’ll give you €10”.
- “Señor, you insult me. How can I feed my family on so little? €20 it is.”
- “Would you take €15?”
- “€18 it is yours”.
Now, all of this could take a good twenty minutes as you argue and insult one another back and forth. It is a game. Oh, and the seller probably bought the bowl for €1 in the first place.
A confession. I am the world’s worse haggler. I simply won’t do it. I find haggling embarrassing. And haggling is not negotiation.
Why won’t I haggle?
First, it is just not worth the time. Why should I spend 30 minutes of my life arguing over something trivial just to save a euro or two? Would I not be better spending that 30 minutes sitting on a café terrace with a cava or a vino tinto? Or two.
More importantly, I simply have no information on which to base my “haggling strategy”. The market trader tells me it is wort €25. How do I know whether this is true or not? It could be utter rubbish, not even worth €1. Or it could be one of those “finds” you might come across that turns out to be a lost Picasso, from the days when Picasso painted pots, if he ever did.
As soon as the trader tells me that the piece I am looking at is worth €25, he has “dropped an anchor”. I am now haggling against his price. Without knowing why. Because it is normal human behaviour to respond to a price point in a way that is not insulting. If he says it is worth €25, I am not going to insult him by offering him €5. I will try to work out what is the least I can offer that I know he will reject but that he will work on. So, I offer €10. We end up on €18.
At all times he is in the box-seat. He is doing this every day of the week. He is the one in possession of all the arguments and information. The only way I can out-haggle him is by walking around the market looking for similar objects, checking what others are selling them for and then going back to him with a list of comparative prices. But guess what? It is a rigged market. They are all selling the same things for the same price, give or take a euro.
Finally, haggling is personal in a way that negotiations are not. Negotiations are complex activities that take place between parties, with the negotiators being representative of the constituencies within those parties. In the words made famous by the Godfather: They are “nothing personal, just business”. Haggling is all personal. And that is something I just cannot do. No doubt the “haggler” would claim that they had just saved €7 by taking the time to haggle to which my response would be: No, you just spent €18.
These thoughts came to mind this week following the exchange of letters between David Frost and Michael Barnier, the UK and EU Brexit negotiators respectively. You can read the letters here: Barnier + Frost
The exchange between the two men can be summed up as follows:
Frost: The UK has left the EU. We are now an independent, sovereign state. We are entitled to a deal from the EU similar to the deals you have agreed with Canada, Japan, New Zealand and others. The best bits obviously from all of these agreements. You can keep the bad bits. And here are some other things we want. Now, they may look like cherry-picking aspects of the single market, but they are what we are entitled to as an independent, sovereign state.
Frost has one other thing to say to Barnier. Back to the Godfather, this time Part 111. The would-be top dog, Joey Zasa, tells the assembled mobsters:
“I say to all of you, I have been treated this day, with no respect. I’ve earned you all money. I’ve made you rich, and I asked for little. Good. You will not give, I’ll take!”
(Worth keeping in mind that not much later in the movie Joey got “whacked”).
Barnier: Thank you for your letter. I don’t much like the tone. But, c’est le vie. If you want access to our single market, here are our terms and conditions. Your choice. And remember, your Prime Minister, Boris Johnson, sighed up to a lot of this last year when he agreed the Political Declaration. Having said that, have a nice weekend. I am available for talks at any time. Come back to me when you get over your little tantrum. (For a much fuller understanding of the EU’s position this is worth reading).
All of which brings me back to “compromise”. Good negotiators shun the word. Instead, they focus on “solutions.” It is the difference between what the negotiation literature calls “positions” as opposed to “interests”.
Anyone who has ever read the classic book on negotiations, Getting to Yes, will be familiar with the story of the two old sisters squabbling over an orange. They both want it. So, they cut it in half. Whereupon one eats the orange and throws away the peel while the other keeps the peel to use in a dish she is cooking and puts the flesh in the bin. Their positions were that they both wanted the orange. Their interests in wanting the orange would have allowed for a value-added solution where both would have been better off if only one of them had asked the question of the other: why do you want the orange?
Of course, if one of the sisters already had the orange in her possession, she would have had the leverage to keep the whole orange. The other sister’s BATNA, best alternative to a negotiated agreement, was no deal and no orange. The only leverage the sister without the orange would have had would be relationship leverage: “Sister, I know you love me so, please, can I have at least half of the orange”. What would not be advised is writing a letter to her sister telling her what a mean and ungrateful person she was and to stop behaving unfairly. It might be somewhat counterproductive. The Frost letter to Barnier.
When we focus on interests, “why do you want what you want”, rather than on positions “here’s what I want” we are inevitably driven to the conclusion that there is no ZOPA, zone of possible agreement currently available in the Brexit process.
Quite simply, what the two sides want are mutually incompatible. Now, I know all my trade specialist friends can produce pages and pages from the documents put on the table by the two parties to show areas of overlap and where there might be a common direction of travel. Indeed, there are. But this is a bit like finding agreement on the wallpaper for the salon when the house is still very far from being sold and bought.
Michael Gove, the UK cabinet minister put it succinctly: He said in a BBC interview that there is a “big philosophical difference” between the sides, and the EU wants the UK “to follow their rules even after we have left the club”. True in so far as it goes. When the EU says it wants the UK “to follow their rules even after we have left the club” what it means is that it wants the UK to follow the rules if it wants access to the club facilities. “If you want to sell goods and services into our single market, then you have to meet our standards and stay in line with our standards.” Further, if you want to use our club facilities you have to abide by decisions of the disputes committee, AKA, the European Court of Justice.
Take data sharing on police and criminal matters as an example. After Brexit on December 31 next, the UK wants to continue to have full access to the Schengen Information System (SIS II), an EU database, where police across the continent share millions of pieces of information on criminal suspects. The EU has said it is legally impossible for non-EU countries not respecting free movement of people to access the database and has proposed more basic information sharing.
British police and border guards are the third heaviest users of the database, making 571m searches in 2019 (a figure that includes automated bulk data sweeps) to look for wanted people or stolen goods. UK forces issued 36,680 alerts on people and 259,824 on vehicles in 2019 – essentially a request to other police to carry out checks.
According to the Guardian:
European diplomats also cite political factors such the UK’s refusal to countenance a role for the ECJ and opposition to any reference to the European court of human rights (ECHR) in the EU-UK treaty.
Both institutions are seen by European governments as providing crucial safeguards over the transfer of data or – in the case of the European arrest warrant – people.
“We wanted of course to have an exchange of data, but it cannot be SIS as such,” an EU diplomat said, citing the absence of guarantees on the ECJ and ECHR.
When discussing negotiations, I make a distinction between “dollar issues” and “decision issues”. Dollar issues are things that cost money. It is generally possible to find agreement around cost issues. It may not be easy, but it can be done.
“Decision issues” are about power, authority and the right to decide. Quite frankly, no rational actor is going to voluntarily give away the power to shape decisions.
Take a labour relations example. A union tables a demand for a 10% pay increase. Management was thinking of 2%. A big gap, but not unbridgeable.
The union also tables a demand for 50% of the seats on the company board, giving it a veto on management decisions. This is something management will never agree to, voluntarily curbing its ability to make and implement critical business decisions. And before someone says “But this is what they already have in Europe” the answer is that works councils and codetermination exist by force of law rather than through voluntary agreements. Even then, neither codetermination or works councils give employees generalised veto rights, except in specific and narrow areas.
You can compromise over dollar issues. Rarely can you compromise over decision issues. Which is where we are with Brexit.
Britain is leaving the EU to “take back control”. The EU is not going to give up any control over the rules of the single market and/or the rules and procedures used to settle disputes between single market participants. The EU is certainly not going to give favourable access to the single market to a country that has left the EU so it can escape the rules and procedures of that market.
Some things are just not negotiable. There isn’t always a compromise available. Because there are some things you just cannot compromise over.