Alternative views of an independent Scotland – the reality of independence negotiations

A number of comments on my YouTube videos – and in the wider debate reflect different views on key policies in an independent Scotland, e.g. on currency, EU, monarchy, etc. This is because the YES campaign is broad-based and contains many views and many political parties – and those of no party. However, some supporters do not seem to have grasped the key dynamics  of what follows a YES vote and the current political realities and time scale.

Here is my response – and my understanding - offered to one such commentator offering multiple scenarios for independent Scotland’s relationship with the EU.

PETER CURRAN’S REPLY TO COMMENT

The independence negotiations will be conducted by the negotiating team selected by the Scottish government and on the basis of its White Paper policies. It will remain the government until May 2016, and an independent Scotland's position vis-a-vis the EU will therefore be determined by the outcome of their negotiations with EU.

Their policy and intent is to remain in the EU, and to negotiate terms of entry as an existing member under UK until independence day. All the options you detail are therefore academic - they will not form part of the negotiations.

Although the YES campaign is a widely-based campaign containing other parties (and those of no party) who have differing views of EU membership (and other issues), they will not influence that policy. The 2016 election campaign will commence March 2016, and all parties are then free to include in their campaign manifestos whatever policies they like, and the Scottish electorate will decide the Government of independent Scotland.

Whatever the outcome of that election, I would hope that the new government - if it is not an SNP government - will not start by wholesale repudiation of major agreements just reached with rUK and EU, nor with a rash of referendums. Such actions would sit very badly with world opinion.

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La règle du jeu – Michael Moore and the independence negotiations

It’s easy to cast Michael Moore as a villain, the arch-enemy of the YES Campaign, the current Scottish Secretary whose predecessors had a remarkably consistent record in acting against the interests of Scots, with the honourable exception of Tom Johnson, probably the only Scottish Secretary who conceived of the role as Scotland’s man in the UK instead of the other way round.

I have done my share of teasing and criticising Michael Moore, but have radically revised my view of him after analysing in close detail his responses to Iain Davidson’s Select Committee and his performance in the negotiations with Nicola Sturgeon over the referendum deal. I have no doubt whatsoever that this Northern Ireland-born son of a British Army chaplain is a committed unionist in his heart, and intellectually as a Liberal Democrat, and that he is totally opposed to Scotland’s independence and will campaign vigorously against it.

But he is also what the independence debate desperately needs right now – a pragmatic realist with a sound grasp of the principles  of negotiation, and a budding diplomat of the highest order. (His destiny in the UK or rUK should be the Foreign Office, where he would do a better job than the pompously  inadequate William Hague.)

Having managed to upset Davidson’s Commons Committee by refusing to play their dirty little game, he has now repeated the trick with the Lords’ committee, which also has thinly concealed anti-independence motives. So far, I only have press reports to go on, but the signs are encouraging -  Michael Moore savaged by Unionist peers over EU row

What enraged the unelected Lords was Moore’s argument that that there was no need to engage in a dialogue with the European Commission because a considerable body of information was already in the public domain- including EC President Barroso’s letter to the Committee - suggesting Scotland, as a new member state, might have to reapply and negotiate its membership.

In reply to an increasingly frustrated Michael Forsyth – who one of these days is going to birl uncontrollably and fly up his kilt into his own orifice, such is his exasperation at the prospect of Scotland’s independence – Michael Moore offered the following gnomic reply, which baffled the parcel of Lords, but brought a knowing smile to the faces of experienced negotiators -

Michael Moore: "There will be elements of this which are, to put it mildly, inelegant in terms of how well-informed people can be at the time of that vote. But short of doing that pre-negotiation, which as the UK Government I don't think it's our place to do, I believe we cannot resolve some of those issues."

Moore, in this and other revealing remarks, displays an real understanding of the dynamics and tactics of the pre-negotiation phase of negotiation, especially one that is going to be conducted in under a media searchlight and in a atmosphere of fevered and often highly ill-informed speculation and comment. He seems to have acquired a sophisticated understanding of such matters, matters that most politicians and media commentators are involved with throughout their entire careers without ever grasping their essence. Either he has an innate grasp of the fundamentals, or has had formative experiences in politics and government that shaped him, or – perhaps and/or – he is being advised by someone who can tell shit from Shinola.

These are qualities and skills that will be vital in the run-up to 2014 and in the negotiations that follow a YES vote. But relaxing in the knowledge that the Scottish Government negotiators will have a worthy opponent who understands La règle du jeu – with a nod to a great filmmaker, Jean Renoir – nationalists must also brace themselves to face a formidable opponent, one they must treat with wary respect.

Michael Moore will be, I hope, the last incumbent of the post of Scottish Secretary, but I entertain the hope that he will acquit himself honourably, in the spirit of the great Tom Johnson, lose with honour and with the respect of nationalists, and go on to a long and successful career wherever he choses to pursue it. For my part, I would like to seem him join in building the new Scotland after independence.

Sadly, if the Forsyths of this world have their way, he will be eclipsed or supplanted by some bumbling but highly vocal primitive Tory placeman, and the negotiations will be a bitter experience with a negative fallout.

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.