The role of negotiation in Scotland’s progress towards independence

It rarely surprises a professional negotiator when politicians and media professionals betray their ignorance of the processes of negotiation – after all, professionals in many fields – the law,  diplomacy, industry and commerce - where one might expect some level of negotiating skill, or at least a basic understanding of the principles to be a prerequisite of effective performance seem to manage to function with this gaping hole in their skills set.

This happens often because they confuse others techniques – persuasion, selling, joint problem solving, debating skills, etc. – with negotiation. When there is some negotiating understanding, it is at the most rudimentary level, a kind of antiques fair bargain hunting haggling. It goes without saying that understanding of negotiating strategy and structures is usually totally absent.

The Scotland, Barroso and the EU debacle is a case in point. Much has been made by unionist critics of the SNP’s constant assertion that Scotland would remain a member of the EU, now qualified – as they see it – by Nicola Sturgeon’s recent statement that negotiations would take place. The Better Together take on this, aided by the failure of various news programmes and interviewers to have done even the most basic homework on the issue, is that acknowledgment that negotiations would take place is a volte face and evidence that the original assertions were without foundation. This flawed analysis is compounded by their repeated assertion that negotiation means acceptance that failure to reach agreement would mean Scotland out of the EU.

A few facts -

Scotland is currently an EU member as part of the UK's membership.

After a YES vote in 2014, Scotland would still be a member of the EU since it would still be part of the UK. The referendum vote does not in itself bring about Scotland’s independence – it simply opens the door to negotiations with the UK to bring about independence, backed by the mandate of the Scottish people. The UK will remain until those negotiations are completed (2016 at the earliest.)

A YES vote in 2016, as well as triggering negotiations with the UK government, would also set in motion parallel negotiations with the EU (as well as many other negotiating interfaces with countries and organisations affected by Scotland’s imminent independence).

During these negotiations, Scotland would still be part of the UK and part of the EU under its UK membership.

At a point in time when the crucial negotiating agenda has been successfully addressed, although many other items would remain under discussion for years, Scotland’s independence will be formally confirmed, it will become an independent nation state and the new state of rUK will be formed by default.

rUK will also be compelled to enter into parallel negotiations on its EU membership at least from Scotland’s independence day, although the likelihood is that the UK would have opened parallel negotiations from the date of the YES vote in the Scottish referendum.

Let’s nail the nonsense about failure of negotiations meaning that breakdown would occur and Scotland would be out of the EU …

Broadly, negotiations between parties can by classified as one of five types -

1. Negotiation between independent parties to reach a specific limited, one-off agreement

2. Negotiation between independent parties to create a new relationship for a limited period

3. Negotiations between independent parties to create a new, ongoing open-ended relationship

4. Negotiation between independent parties in an attempt to redefine the terms of an existing relationship

5. Negotiation between parties to bring an existing relationship to an end.

(Another broad distinction can be made in dispute negotiations, that of conflict of right and conflict of interest, that is a dispute over claimed existing rights or an attempt to establish new rights. For example, a dispute over alleged breach of contract is a conflict of right, and a dispute over an attempt to redefine the terms and conditions of a contract e.g. a wage increase, is a conflict of interest.)

The first two types above characterise most commercial negotiations – one-off deals, deals delivered over time, short-term employment contracts, etc.

The last three are the ones that concern us in relations to Scotland’s independence. The Act of Union was type 3, the negotiations over the terms of Scotland’s EU membership will be type 4, and the negotiations over Scotland’s independence will be type 5.

With regard to the EU, type 4 is the one that interests us - negotiation between independent parties in an attempt to redefine the terms of an existing relationship.

LOCKED RELATIONSHIPS

Many type 4 negotiations can be described as locked relationships from a negotiating perspective, that is to say, relationships that are expected to continue over time, and where negotiations that result in deadlock or failure to agree do not threaten the ultimate continuity of the relationship.

For example, most successful marriages – and relationships - have their share of disputes and their negotiations over the years, but always against the expected continuation of the marriage. The annual terms and conditions negotiations in large employers and local government take place against the base assumption that however difficult and protracted the negotiations, however serious the industrial action that may result from failure to agree, agreement will ultimately be reached, and no one seriously doubts that the relationship will continue.

(The UK’s often rocky relationship with the EU may be described as a locked relationship over the decades, as Scotland’s relationship with the UK under the Union has been for over three centuries. In fact, the process leading to devolution and subsequent modifications to the devolution settlement can be seen as negotiation in a locked relationship.)

The negotiations over the ultimate terms of an independent Scotland’s EU membership will be conducted while Scotland is still part of the UK and an EU member, and will be in a locked relationship context.

No serious observer or commentator envisages an EU without Scotland in membership, nor can anyone seriously believe that negotiating difficulties and disagreements could result in an independent Scotland being denied membership.

The EU is in a constant state of negotiation with its member states, often on hotly contested topics. Only in the case of the UK’s confused and contradictory relationship with its EU membership, driven largely by a deeply divided Tory party, has there been any real threat of breakdown of the relationship leading to exit.

However, the negotiations between Scotland the the UK government after a YES vote will be of type 5 - negotiation between parties to bring an existing relationship to an end.

Whether the negotiations are successful or they fail, the end result will be the same – the exit of Scotland from the United Kingdom. I am confident they will succeed, and that we will enter into a new and more productive relationship with England, Wales and Northern Ireland, and of course Europe, Scandinavia and the world.

POSTSCRIPT

One of the relatively few commentators to talk calm, good sense on this issue throughout has been Iain MacWhirter. Here is his Newsnicht contribution, a voice of sanity and reason after the political posturing by the Better Together front men and women.

Scotland, the EU – and Barroso …

Scotland's independence will create a situation for which there is no real precedent, and no clarity or certainty in European law or EU history. We have the farcical situation that a Tory Party that shows a distinct wish to leave Europe are arguing against Scotland's independence on the basis that the rUK would be in and Scotland out. There is also the fact that a significant number of Scots, including many nationalists, would be delighted to be out of Europe too ...

I have never doubted that one of the many complex questions raised by Scotland's independence would be the terms of its EU membership, and that it would have to be negotiated. Since a YES vote in 2014 does not confer independence, but only fires the starting gun for negotiations to achieve it, the very earliest date for conclusion of the core negotiating issues would be 2016, with the formal independence date well beyond that, during which time both the UK and Scotland/UK membership would still be in force.

Since the incompetent UK parties can't forecast what will happen to the economy and the currency in the next three months, I lose no sleep over Scotland's ultimate membership of the EU in say, 2017, if indeed the EU still exists by then! But if it does, Scotland will be in - the idea of them being out, or being blackballed is risible historically.

First we had the leaked – but never sent – letter, and now we have Barroso's latest public statement

Here's my view, informed and assisted by  invaluable help from my Danish friend Troels who is expert in EU law, and keenly interested in an independent Scotland.

Barroso talks of "a part of a country that wants to become an independent state", i.e. analogous to Catalonia (something he's deeply worried about) not a "union state" being dissolved and two successor states emerging. His use of the phrase "a part of a country" indicates that Barroso is rather confused on the history and structure of the United Kingdom.

He seems to perceive "Britain" as a country (like Spain or Portugal) and not as a unitary union state, which it what it is. This is evident from the end the television clip, where he clearly believes that the UK will still exist after Scottish independence like, say, Spain after Catalan independence, or Denmark after Greenlandic independence, where the old state continues to exist, but a part of its territory becomes independent.

In fact, in the case of the UK, it would be the union state dissolving, and at least two successor states emerging, very much akin to Czechoslovakia.

Barroso's view is poles apart from the kind of opinion that the European Court of Justice would give. It is worthy of note that Barroso, speaking for the EU Commission only, offers no legal arguments or references that can be debated or be refuted.

In other words, his statement is self-serving and purely political - a piece of realpolitik gamesmanship. There's a lot of that about - and there will be a lot more of it before 2014. The old order is breaking down, and like all ancien regimes, it doesn't like it.