Why transparency is fundamental for democratic negotiations on a ‘Hard’ or ‘Soft’ Brexit
One criticism often levelled at political leaders involved in international negotiations is that they lack sufficient transparency and public accountability. There are various understandable reasons for this secrecy, such as the desire to maintain the upper hand at the intergovernmental negotiation table, but these reasons have significantly less weight at the level of domestic politics. In a representative democracy, there is a formally established structure of elected MPs, parliamentary chambers and a clear opposition, all of which accommodate and encourage debate and exchange of views on government policies. The citizens delegate and entrust such debate to the elected MPs and mostly stay out of such decision-making, thus making relatively few demands for additional transparency.
However when a government opts for a policy of direct democracy, that is to re-direct decision-making back to the citizens through referenda, its subsequent actions and negotiations must be made available for scrutiny by those citizens who have been involved in the decision-making process. A suitable example through which to analyse the issue of transparency in political negotiations and compromise is the current debate in the United Kingdom over Brexit.
Nearly six months after Britain’s referendum on membership of the European Union, the people and politicians of the UK still find themselves bickering and quarrelling over the form of Brexit that should be pursued: a so-called ‘Hard’ or ‘Soft’ Brexit. But it is not only the ‘what’ of Brexit that is so hotly contested, it is equally the ‘how’, with the issue of transparency in the negotiations proving equally as divisive as the Leave and Remain debates of this spring. I argue that transparency in political negotiations is a fundamental principle of legitimate, democratic governance and that it only gains in importance as the decision-making is brought closer to the citizens themselves through direct democracy.
I shall use the current example of the Brexit negotiations to demonstrate firstly how the Prime Minister’s ‘uncompromising mindset’ and insistence on forgoing transparency amounts to a subversion of the principles of democracy, which could even be considered a steer towards autocratic rule. Secondly I shall argue that this very lack of transparency and exclusion of Scotland and Northern Ireland from the negotiations jeopardises the very composition of the UK, fuelling the flames of independence movements and further dividing the country.
Firstly, by holding a referendum on EU membership, and a non-legally binding one at that, the government placed the decision into the hands of the citizens, and by doing so definitively relinquished the right to exclude citizens from the remainder of the process. However in the aftermath of Brexit this is precisely what the British government are attempting to do: disregard its citizens. For the government to then go one step further and even exclude the citizens’ democratically elected representatives, their MPs, is simply undemocratic and a deliberate attempt to obstruct transparency and accountability.
The Leave camp Ministers and the PM Theresa May do not see a need for additional transparency and are attempting to bypass Parliament by triggering Article 50 of the TEU under the pretext of Royal Prerogative. However, others are indeed demanding increased transparency, such as a group of citizens whose legal case at the High Court resulted in a ruling that the PM cannot begin EU negotiations without Parliament’s consent. Likewise from the opposition, in the form of Labour Party Leader Jeremy Corbyn who has also called for greater transparency around the government’s plans. The PM’s subsequent appeal of the High Court’s ruling at the Supreme Court demonstrates an ‘uncompromising mindset’, as defined by Gutmann and Thompson, and a desire to avoid having to engage in any debate with the elected MPs, which many consider to be subverting the principles of democracy.
Gutmann and Thompson assert that, “in governing, leaders have to adopt a compromising mindset. Rather than standing tenaciously on principle, they have to make concessions”. Theresa May displays no intention of engaging in compromise and has declared her government intent on pursuing a ‘Hard’ Brexit, even though this does actually contradict the current prevailing atmosphere of the general public, the slight majority of whom would actually now prefer a ‘Soft’ Brexit over a ‘Hard Brexit’, according to a poll in late September .
It is not surprising that Theresa May is reluctant to allow the MPs transparency and visibility over the negotiations, and that she would rather jealously guard the mandate she claims to have been conferred by the slim majority in the (technically advisory and non-legally binding) EU referendum, as it would certainly make the process of leaving the EU much easier, more efficient and straight-forward for her. However, with neither parliamentary approval nor popular support for her favoured ‘Hard’ Brexit, the Prime Minister is steering dangerously close to the limits of democracy and in fact towards autocratic rule.
Secondly, the issue of transparency in the Brexit negotiations is of particular importance given the fact that significant parts of the UK, such as the devolved countries of Scotland and Northern Ireland, but also including London, voted strongly in favour of remaining in the EU and are thus facing forceful withdrawal from the EU against their electorate’s expressed will. 62% of Scotland and 55.8% of Northern Ireland voted to remain in the EU. The fact that Scotland’s First Minister has called for a second referendum on Scottish independence and that applications for Irish passports from Northern Ireland increased in August 2016 by nearly 80% year-on-year shows the very real risk that the UK runs of being broken apart by Brexit. Theresa May might claim to have a mandate over England and Wales, the two countries that did vote to leave the EU, but by ignoring the Scottish and Northern Irish need for transparency she is asking for trouble.
By ignoring these key actors in Scotland and Northern Ireland as the Prime Minister heads along her determined and indisputable path towards a ‘Hard’ Brexit, there will remain “an underlying and continuing conflict of values”, which threatens disintegration of the United Kingdom entirely. In order to unite the currently extremely divided countries of the UK, I suggest a better strategy for Theresa May to pursue would be to allow discussion of Brexit in parliament, allowing MPs to contribute and making it possible to reach a ‘consensus’, whereby everyone would end the negotiations in agreement and the UK would stand far better chance of remaining intact.
Theresa May argues that domestic negotiations and a transparent approval process in the Parliament would weaken the UK’s position when it does finally reach the negotiation table in Brussels, by giving away its bargaining chips in advance. This argument can however be refuted with the simple point that any EU negotiations that seek a ‘Hard’ Brexit, and therefore go against the will of the British people and Parliament, would cause far greater long-term damage to the UK’s position in every sphere of domestic governance and international politics, and therefore a weaker negotiating position in the short-term would still be preferable. Additionally, this paper has not addressed the role of the EU and what type of Brexit they would be willing to accept, as the subject of this paper is the issue of transparency in democratic governance.
A more appropriate, alternative approach to the negotiations would be for the PM to acknowledge and cater for the need for transparency, by dropping her appeal to the Supreme Court, allowing a parliamentary debate and vote on the terms of Brexit. She should aim not just for a compromise, but for an actual consensus among all parties before triggering Article 50 of the TEU, in order to secure the unity of the UK and reconcile the highly polarised camps of Leave and Remain.
Using the example of Brexit as a case study, I believe that transparency in political negotiations is a fundamental principle of legitimate, democratic governance and that an absence of legitimacy betrays an uncompromising mindset and even a subversion of the principles of democracy. Insufficient transparency is precarious not only because it can reject the will of the citizens and their elected representatives in parliament, but because it can also cause wider consequences of political division and disintegration.
This position paper was written in November 2016 for a Masterclass in ‘The Philosophy of Political Compromise’, completed as part of the University of Groningen’s Honours College Master Programme in Leadership.
Footnotes and sources:
 “Jeremy Corbyn calls for transparency over Brexit plans,” Telegraph.co.uk, last modified November 5, 2016.
 Amy Gutmann and Dennis F. Thompson, The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Princeton, N.J.: Princeton University Press, 2012).
 Joe Watts, “Soft Brexit preferred choice of Britons as poll shows willingness to compromise on immigration,” Independent.co.uk, last modified October 1, 2016.