Lord Smith of Kelvin - self-deprecating and modest about his role - appeared before the media in the National Museum of Scotland at around 9 o’clock on 27th November - flanked by the politician members of the Commission and key advisors - to announce that a deal had been arrived at on more powers for Scotland.
The BBC lead-in to this at 9.03 quoted from the multitude of leaks, hyping up the impending revelations by describing them as “the biggest transfer of powers since devolution began 15 years ago”, a factually accurate statement, but also the key UK propaganda sound byte attempting to airbrush out the the starkly evident fact that the powers fell far, far short of the various versions of The Vow, which ranged from vague promises through devomax to home rule and near-federalism, depending on which “promise” the electorate of Scotland listened to, in the last days of the referendum campaign.
Let’s take a step back and take a hard look at genesis of The Smith Commission …
THE SMITH COMMISSION
September: a single poll shows YES Campaign ahead for first time and throws the Unionist parties, Westminster, the British Establishment and the unionist media, i.e. virtually all of the media, into blind panic.
The YES Scotland campaign could actually win! Desperate measures were clearly called for. Cometh the panic, cometh the lies, cometh the media - and the man …
Having opposed the second question and ignored the blindingly obvious lessons of polls throughout the entire campaign - that there was a solid majority of Scots and Scottish institutions that wanted far great powers but within the UK - they faced a dilemma: how to belatedly capitalise on this whilst retaining sovereign control over Scotland and avoiding giving anything of significance away that could strike at the very concept of the Union.
Their solution, albeit panic-driven - and ignoring the UK-wide impact on the rUK electorate in the run-up to the 2015 General election - was to make non-specific yet sweeping promises of more powers in a way that could be controlled, watered down, and ideally kicked into the long, long Westminster and Whitehall grass after a NO vote.
(I was tweeting suspiciously about devo max, Civic Scotland and more powers as long ago as July 2012)
The plan arrived at was crude – but it worked. The Scottish unionist parties already had positions on more powers, albeit differing widely. The big question was not what the parties individually wanted, but whether they could get their act together, then persuade their Westminster party masters to endorse something nebulous but seductive before 18th September.
A compliant media channel was required to act as cheerleader. What better one than The Daily Record?
Now all that was needed to administer a coup-de-grace to YES hopes (by convincing the wavering Don’t Knows and the soft NOes) was a blunt instrument, in the form of someone who held -
no position in Better Together
no Government position
no Shadow Cabinet position
- a powerful voice who had no authority to commit anything on behalf of anyone, and who could be safely repudiated if things went pear-shaped with the rUK electorate.
And there he was, growling, pacing and posturing in the wings, moral compass needle swinging wildly in all directions, desperate for a platform – banker of the Afghanistan and Iraq Wars, proponent of light-touch banking regulation and the architect of the collapse of the UK economy – Gordon Brown.
It worked. The Referendum was lost, Better Together won by a comfortable margin, and joy was unbounded in the British Establishment, the House of Lords, NATO, the Pentagon, the White House, the Ministry of Defence, the nuclear industry, hedge-fund managers and dodgy bankers and just about every right-wing European country – and perhaps even the Vatican?
But the piper, in the form of the electorate, had to be paid after a NO vote - the Vow had to appear to be fulfilled, since it was manifestly impossible to fulfil it without defenestrating the Union. But the plan was already in motion …
A respected Scottish figure had to be found, and a confidential approach was made to Lord Smith of Kelvin before the referendum. He accepted. The task was formidable, but the appointment was not a poisoned chalice, because if he succeeded in achieving a consensus recommendation from the Scottish Parties including the independence parties – no mean feat – Lord Smith could then pass the chalice to Westminster, job done and conscience clear.
Then, and only then, would the chalice contents undergo a transformation into a drink that would enter the system of the English, Welsh and Northern Irish electorates and run in potentially toxic rivulets through the constitutional structure and the very heart of the Westminster system, even the very concept of Union itself.
SMITH COMMISSION BASIS
The Commission was set up by Cameron to consult widely then attempt to broker a consensus between representatives of the five political parties in the devolved Scottish Government on what additional powers should be granted to Scotland following a NO vote. Their recommendations would then be to the three leaders of the main UK parties, who were pre-committed by the Vow (and now by the terms of reference of the Smith Commission) to take the recommendations set out in the agreement and turn them into law.
The five party representatives de facto formed two blocs – the pro-independence bloc (2) and the Unionist block (3) and to be present at all, they had to fully accept the terms of reference set by Government for the Commission: recognition that Westminster Parliament was sovereign and crucially, that nothing in the submission would disadvantage rUK.
Since the prime reason the UK opposed Scottish independence was the undeniable fact that Scotland leaving the Union would damage the UK in fundamental areas : its world status, the nuclear deterrent, defence, economic and social policy – if they persisted with the centre-right consensus policies of the three unionist parties and their concept of foreign affairs and strategic defence – the likelihood of new powers even approximating to the wild promises of the VOW was close to zero.
After all, wasn’t that exactly why the Second Question had been blocked by the UK Government?
SMITH: CHOICES FACED BY SNP/GREENS BLOC
In his foreword to his 27th November Report, Lord Smith reiterated what the purpose of the Commission had been.
Scotland voted ‘No’, but it did so with each of the three main UK parties promising more powers for the Scottish Parliament. I was asked to lead a Commission, working with the five parties represented in the Scottish Parliament, to agree what those new powers should be.
The words I have highlighted in red should, of course, have read
..to agree what we, the Scottish Parliament representatives, think those new powers ought to be, and then submit our consensus view to the British Government and sovereign UK Parliament in the hope that they will ratify them.
The reality of this for the Unionist bloc of three was that nothing could be submitted that hadn’t been cleared at every step of the way with Westminster, however that was done – overtly or covertly. The idea that the Commission would deliberate in monastic seclusion, only revealing their consensus to an admiring world on 27th November was always risible, as leaks and last minute events demonstrated.
The Smith recommendations required a UK imprimatur before they were released, not after.
The Commission was always going to be an adversarial multi-party negotiation, with Lord Smith as mediator. Whether the party representatives were equipped for such a complex negotiating process is an open question.
I will not speculate on what the Greens choice’s were, nor how they viewed them. But the SNP’s choices were starkly simple – they could boycott the Commission a la Calman or agree to participate. If they agreed to participate, they were agreeing to negotiate, and by definition, to surrender part of their best opening position, i.e.
The SNP continue to advocate Scottish independence, and believe that Scotland will one day become an independent country. But of course we accept the referendum result, which means that independence is not part of the Commission's considerations. We wish formally to associate ourselves with the 34-page set of proposals sent today by the Scottish Government, and which I enclose herewith
If such a seemingly inevitable set of compromises were made, the SNP/Green bloc was accepting that a deal had been struck and, subject only to the over-arching qualifier that they believed that “Scotland will one day become an independent country” they were honour-bound to stand behind any deal they made.
The clear alternative, implicit in any negotiation, was deadlock followed by breakdown and walking away from the table.
However the political choices made this seemingly simple strategy more complex. Let’s examine the possible scenarios resulting from this choice.
If the SNP had refused to participate in the Smith Commission, the Unionist block would simply have met, deliberated, and reached a consensus recommendation to Westminster. (It is just barely arguable that the three unionist parties might not have reached a consensus, and fragmented into a Labour versus Coalition deadlock. That would have been interesting …)
The SNP would then have been presented as bad losers, immature politicians, sulking on the sidelines of the new, post-referendum game.
In my view, they made the right choice – to participate, to play the game and accept La Règle du jeu (Jean Renoir 1939).
However, the rules of the negotiating game also include the possibility of deadlock and breakdown, and a requirement that, faced with a bad deal and the failure of the process to satisfy crucial negotiating objectives, the SNP must walk out of the negotiation.
That scenario, albeit undesirable, was a viable one for the SNP. It was, after all, what most of the 1.6m YES voters expected from the Vow. It would not have surprised or shocked them. Nicola and the SNP Cabinet could have played a virtually identical hand to the one they did in fact play after the 27th November “deal” at FMQs and in the media – Powers inadequate, but they would be accepted and used, etc. There are obvious PR downsides to the scenario, but it has a certain integrity to it.
But the strategy – if there was one – seemed to be to work with the Commission, get the best deal on offer - in the full knowledge that it would fall far short of the Vow, of devomax, of federalism, of home rule - then criticise mercilessly the deal they had just made.
The major political upside of any deal that involved giving Scotland any new powers after a referendum defeat was that it would reopen the West Lothian Question in its new, nightmare reincarnation as EVEL – English Votes for English Laws – and leave the UK parties and constitutional arrangements in tatters in the run-up to the 2015 general election.
That has duly happened.
SUMMARY
I don’t propose to offer a critique of the new powers – that hatchet job has been done expertly and acrimoniously by just about everybody.
On balance, I think the SNP – and the Greens – were right to join the Smith Commission, and right not to breakdown and walk-away. If I have a criticism, it is that they misjudged the post-deal tone, which offended the sensibilities of an old negotiator like me, specifically that if you make a deal, you accept your part in it and blame no one but yourself for its inadequacies.
But then, I am not a politician, and doubt that I ever could have been one. I’m something much more important in our new Scotland – an informed and vigilant voter – and there’s another 1.6m of me at the very least.
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