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Showing posts with label independence debate. Show all posts
Showing posts with label independence debate. Show all posts

Sunday, 6 November 2011

Ius naturale, independence and negotiation

I made my living for many years as a negotiator, in employee relations, then as a consultant and trainer in negotiation and negotiating skills. Negotiation is a very ancient art, and when it takes place between nations, it is called diplomacy. The Romans, who you will remember once had an empire and then lost it, almost never negotiated – they relied on brute force or law to resolve disputes. In law, they made a major contribution to civilisation, and they saw the law as falling into three type ius civile, applicable to Roman citizens, ius gentium, between citizens and foreigners and ius naturale, what we tend to call international human rights – the natural law.

The latter applied to all races and in all circumstances, and in particular it emphasised that, when interpreting treaties under the law, regard must be taken of equity and reason, not just the letter of the treaty – what is sometime called the spirit of the law.

What brought all this to mind? Well, when I was a young negotiator in American industry, the negotiating literature was not as plentiful as it later became, and I was reliant on American guidelines from very senior negotiators who had cut their teeth in the hard school of American industry and specifically the automobile industry. (One of my senior American bosses was a veteran of the Battle of the Overpass in 1937, when the  Ford Motor Company security goons clashed with union organisers, where extreme violence was used in an industrial dispute. Battle of the Overpass One of the two union organisers – the other was Walter Reuther -  was called Frankensteen!)

My last boss in the old Goodyear Plant in Glasgow, the delightful Clarence Adkins Junior had been a former union official, and often spoke of carrying a turkey gun – a kind of blunderbuss – inside his long coat when picketing the factories during  what he called ‘difficult’ strikes. The Americans were wedded firmly to the piecework system of payment by results, which worked well enough in the context of American business unionism, but eventually proved lethal to the Scottish plant at Garscadden. Piecework gave rise to something called fractional bargaining – haggling over everything – and, while it could be managed, tended to be very destructive. In America, it had co-existed in a kind of dynamic tension with complex contract negotiations, but these were viewed in a very different way in the arcane world of UK industrial relations in the 1960s and 1970s.

But I went beyond this limited adversarial model in my reading, and discovered, in a second hand bookshop, a little book called Diplomacy by Harold Nicolson. Harold Nicolson – Wikipedia As well as being a British diplomat, wee Harold led, shall we say, a colourful life, some of which has been dramatised on television, but whatever his adventures were outside of diplomacy, my interest was in his little book – which I still have – and what it had to say about negotiation. My little reprise above on the Romans and negotiation was prompted by Harold, who is as relevant today as he was when the book was first published in the late 1930s. (It was revised in the 1950s, and of course, the sixty years since have been a little hectic.)

(I later had a long involvement, both in industry and later in consultancy with Professor Gavin Kennedy, who wrote a number of definitive popular works on negotiation. Gavin, who had a thorough distaste for politicians, although he was a Scot Nat, in a discussion with the late Douglas Henderson of the SNP and me on  a course, laughed at the idea of politicians negotiating, and he was right, in the main – it should be left to the professional diplomats like Sir Christopher Myer.)

What has all this got to do with a pound of mince?


The SNP win in May 2011 caused a collective outbreak of hysteria and disbelief in the metropolitan media and among unionist politicians. In the case of the Labour Party, this approached what used to be called a nervous breakdown, especially among Scottish labour politicians. It also spawned a torrent of superficial analysis and comment, most of it unbelievably ill-informed, and an outbreak of factoids (I use the word as defined by the man who coined it, Norman MailerSomething that everybody knows is true except it ain’t! ) - that went way beyond the reach of mere suppositories, and now requires urgent surgery.

The backwoodsmen and women of the Tory Party huffed and puffed patronisingly – one eejit in Ian Davidson’s little cabal known euphemistically as The Scottish Affairs Committee suggested recently that Scotland withdrawing from the Union was equivalent to a member resigning from a club – shouldn’t the other members have a say, old boy? – and the Colonial Governor, Michael Moore demonstrates at regular interval’s – last outing today on the Politics Show – that he understands neither Scotland nor the Act of Union, never mind plain English, especially when it is spoken by Alex Salmond, wearily but affably  saying for the umpteenth time when the referendum will be, and what is meant by independence and full fiscal autonomy. I understand, our American cousins understand, an intelligent eight-year old would understand, my two Westies, Angus and Dougal, understand, but Michael Moore doesn’t. A bad case of earwax, maybe?

The Act of Union was a treaty between two independent kingdoms. It doesn’t take two to end a treaty or an agreement, it only takes one, either by negotiating the terms of exit or unilaterally. The ius civile and the ius gentium are undoubtedly relevant, but so is the ius naturale, especially after 300 plus years. If the UK Government wilfully misunderstands this, and continues to act like the Romans in decline, then the Scots will become less civil and move towards acting naturale take note, gentlemen

Independence is a beautifully simple concept, and needs no complex definition – it means a nation doing its own thing, in every aspect of its affairs. Full fiscal autonomy doesn’t need Ming Campbell’s version of the Steel Committee to tell us what it is – it’s independence in everything except the ultimate sovereignty of Westminster, foreign policy and defence, the nuclear deterrent and membership of the EU and the UN.

The timing of the referendum is in the second half of this Scottish Parliamentary term, and the date is when we’re ready, not when you’re ready, Michael Moore. But keep pushing and Alex might just give you a nasty surprise. You’re bluffing, Michael, and bluffs sometimes get called when the time is right.

If you really expect us to blow our negotiating hand in advance of the referendum outcome on the detail of the negotiation that will inevitable follow, dream on, Michael. But by all means set out what you see as the detailed agenda for that negotiation, and we’ll let you know what we think of the items that might be up for discussion.

And lastly, if you want to go down in history as a statesman, rather than a pompous young windbag, you might consider addressing the issues in an adult, statesmanlike fashion. Try and act in the spirit of the ius naturale. The Roman Empire first began to negotiate seriously when it was near to collapse – maybe the UK can make a better job of it in similar circumstances …

We know what side you’re on – the UK’s side – and you know what side we’re on – Scotland’s. Talk calmly about the issues that lie ahead and stop your ridiculous posturing and grandstanding – it cuts nae ice wi’ Scots. Frankly, it gie’s us the boke

Tuesday, 17 May 2011

The terms of Scotland’s independence - the great debate …


I have been commenting for some time on the deliberate playing down of the defence issue by both pro and anti independence camps, especially the nuclear weapons and bases aspect, which I regard as the crucial issue. As recently as last night’s Newsnight Scotland, this was being skirted around.

But it has now erupted on to the front pages, as it was inevitable that it would, sooner or later. We’re down to the nitty-gritty with a bang, so to speak. Today’s Herald -

SNP anger over Tory warning on defence - Backlash as Fox brands Salmond’s policy on the military nonsense

And some still say the YES/NO referendum campaign hasn’t started! You could have fooled me …


Just a few short weeks ago, Labour was going to win the Holyrood election, the SNP would be out, and Scotland’s independence would be off the agenda for the foreseeable future because the people of Scotland would not be asked what they wanted.

Now we have the SNP in power, with full control of the Parliament, the referendum now certain, with the debate now shifted to the terms of independence.

As an indicator of just how much things have changed, I refer you to the perception of a European now studying in Aberdeen - Ferdinand von Prondzynski - on his blog.

His last paragraph reads -

What do I think? I’m new here, but I have now spoken with a fairly large number of Scottish voters, and I am getting a very consistent message, so consistent that I am going to discard the normal caution of suggesting that this really isn’t a sufficient sample to be useful. Almost everyone I have spoken to who voted SNP has said the same. And to explain it, I might refer to the comment of a BBC commentator on election night, who suggested that the Scots had ‘lost their fear of independence’. That seems to me to get it absolutely right. It doesn’t mean they voted for it when they voted SNP. But it means that they knew that, by voting SNP, they were making independence a live issue. They might still voice caution when polled. But they are there to be persuaded, and expect the persuasion to come. They are not yet all in favour, but they are no longer determined to be against.

It often takes the clear-eyed perception of an outsider (meant in the very best way, Ferdinand - we are delighted to have you in Scotland!) to encapsulate the mood of our nation, and in this paragraph Ferdinand (@vprond on Twitter) has done just that.

There will be no referendum called until the second half of this Scottish Parliament, but we are already in the YES/NO campaign whether we like it or not (some in the SNP feel it is premature) because the NOs are already in full voice. And those who voted SNP but are cautious about independence are, to echo Ferdinand’s words “there to be persuaded, and expect the persuasion to come. They are not yet all in favour, but they are no longer determined to be against.”

THE UNIONIST POSITION - the NOs in full voice

The Unionists’ many positions on the referendum over recent times may be summarised as follow -


Scotland doesn’t need a a referendum on independence - each UK general election is in effect a referendum.

“If the SNP wants one, bring it on …” The Wendy position.

A referendum would be a needless distraction from the urgent business of sorting out the economic mess “left by Labour” (Coalition position) or “created by the Tory-led Coalition” (Labour position.

The SNP government will be out of office on May 5th 2011, so the referendum is off the agenda.


The SNP is marginalising the independence question - we demand that they bring it up front, so that we may terrify the voters with it.


We demand that the new SNP government call a referendum right now. Bring it on …

We demand that the UK government call a referendum right now.

We demand that the referendum be extended to the whole of the UK.

We may give you everything except defence and foreign policy if you abandon the referendum.

No referendum is needed - England (i.e. the UK) should just throw Scotland out of the Union unilaterally.

The SNP has abandoned any real concept of independence, led into the Unionist Promised Land by Jim Sillars

The SNP is split right down the middle over independence - this is the SNP’s Clause Four moment.

This contradictory, confused and intellectually dishonest range of positions reflects the confusion and disarray in the NO camp. The electorate recognised that before the election, and probably recognise it now. They won’t be voting for a new government of Scotland for five years, but they will be voting for Scotland’s future, something of infinitely more significance - and they know it.


A few things need to be re-stated. The Scottish government can - and will - introduce a referendum bill to Holyrood in the second half of this Parliament and it will be enacted, given the SNP’s overall majority.

The exact question or questions that will be asked on the referendum ballot paper has/have not yet been decided, but ideas have been floated. The essential choice is between a single question  - will you authorise the Scottish Government to negotiate the terms of independence on your behalf with Westminster - YES or NO, or two or more questions on a range of options, e.g. full independence or something less.

If the answer is NO to any change to the status quo, there is no immediate problem, other than an acrimonious debate about how long it should be before the question is asked again, e.g. a generation (Unionist  position) or not for a while, unspecified (Nationalist position.

It must be clearly understood that a YES vote does not legally bind the UK government to agree to the outcome, but there is a near-consensus that the moral and political force of a YES vote would compel Westminster  to accept the democratic decision of the Scottish people.

But a number of key questions arise from the referendum in addition to those above.

Q1. How much detail on the Scottish Government’s position on the exact nature of independence must the electorate have to make an informed choice, i.e. what are the implications of voting YES? 

Q2. What is the case for voting NO, i.e. for the status quo - no change to the present arrangements?

Q3. If there is a YES vote, should there be a second referendum to ratify the heads of agreement reached by the Scottish Government team and the UK Government?

There are more questions, and sub-sets of questions, but let’s look at these three first. I approach them from the standpoint of a negotiator, but in the context of political realities and the history of other successful independence movements.

Individual negotiators or negotiating teams fall into two broad categories - those who are answerable only to themselves and those who are mandated to negotiate on behalf of others - their principals.

For example, someone negotiating the price of a car with a dealer is usually in category one, and a commercial negotiator acting on behalf of a company, or a trade union negotiator or negotiating team is in category two. The commercial negotiator usually has a single principal, e.g. the purchasing or sales director, or a team of principals, i.e. the Board of directors.

The closest parallel for a Government negotiating team is the trade union example - one might think - with the trade union membership parallel being the electorate. However, this analogy doesn’t hold up in the face of political reality. MPs and MSPs are elected as representatives of the electorate, not as delegates or passive mouthpieces. They are elected on the basis of a manifesto - their prospectus so to speak - but once elected they have - or arrogate - considerable flexibility and discretion on how they exercise that mandate.

The alternative is clearly unworkable, namely to seek democratic ratification of every policy detail by consultation and mini-referendums. The electorate is expected to trust their elected representatives to get on with the job as best they can.

That trust has, of course, often been shamefully betrayed by elected representatives once in office, the most egregious recent example being the betrayal of their supporters by the Liberal Democrats in coalition with the Tories. But even before that betrayal, there was another example which, it can be argued, was simply realistic democratic politics, although some would disagree, namely the negotiations with the Tories about forming the coalition, led by Danny Alexander for the LibDems.

Neither the Tories nor the LibDems spelled out in detail in advance to the people who had elected them the rationale for a coalition (some would say it was self-evident from the election results) and neither party told the electorate what their negotiating objective were in detail. They took their mandate to mean that they had the right to exercise their best judgment without referring back to the electorate, and however unfortunate the outcome, my personal feeling is that they had that right.

Where does this leave us on the three questions posed above? Let’s take them one at a time -

Q1. How much detail on the Scottish Government’s position on the exact nature of independence must the electorate have to make an informed choice, i.e. what are the implications of voting YES?

My simple answer to that is - more than they have at present, despite the SNP’s considerable efforts to conduct a national conversation and to spell out  a great deal of their thinking in writing. This is especially necessary  on defence matters and the nuclear question, nuclear in more sense than one. Liam Fox’s outburst - spontaneous or calculated - has catapulted this question to centre stage in the debate, and the referendum campaign, which has already started, despite protestations to the contrary by some.

I have always regarded the defence issue as central, both in my personal priorities, and to the real nature of the opposition to Scotland’s independence, while recognising that it is not necessarily the issue at the forefront of the electorate’s priorities. (Professor Tom Devine said last  night on Newsnight Scotland that economic issues have determined the outcome of every election, but, with great respect, this ignores the fact that the electorate have never had a clear-cut defence and nuclear option put to them in any of the elections he cites - except by fringe parties - because every major party has effectively been committed to nuclear weapons and the nuclear deterrent.)

The SNP’s position on the status of the Scottish component of British armed forces must be clarified. They are either Scottish forces voluntarily ceded to overall UK co-ordination and control, but with the capacity to veto their participation in any initiative that the Scottish government disapproves of, or they are not. All governments participate in coalitions of forces under a central military control  - the UK forces were under Eisenhower and American control for the D-Day landings, and the UK is presently in a coalition in Afghanistan and in Libya - but national sovereignty reigns supreme.

On the nuclear issue, I have already stated my understanding on this, on Sunday May 15th, as follows -

The First Minister says clearly that an independent Scotland would have the ultimate decision on when to go to war, i.e sacrifice the lives of Scottish servicemen and women – and would not, for example, have supported the invasion of Iraq.

He also says there could be some sensible sharing of military bases. But if that were to extend, for example, to leasing the Trident nuclear bases to UK Minus (The United Kingdom of England, Wales and Northern Ireland) after Scotland has achieved independence, then the Scottish Government would have to have a veto on when nuclear weapons were used from its waters, or from a submarine in international waters that was based in Scottish waters.

Since Scotland does not support the use of nuclear weapons or WMDs in any circumstances, UK  Minus (effectively the US) would be leasing bases and owning weapons of mass destruction, e.g. Trident submarines that could never be used.

This would be untenable, therefore Scotland can never lease the nuclear bases to UK Minus.

We cannot reasonably expect the Scottish electorate to vote in an independence referendum without a clear idea of how their new nation is going to be defended.

There are other significant aspects of independence, most of which have been clearly explained by the SNP, verbally and in print, if the unionist opposition and lazy media commentators would take the time to do their homework. For example, the SNP’s commitment to a constitutional monarchy has been clearly stated, and the ancient model of the Union of the Crowns has been cited.

The SNP’s position on the key levers of fiscal responsibility, on control of borrowing, on tax raising powers, on Scotland’s natural resources including oil are clearly set out. We already have our own legal system, and the present status of devolution has already ceded a number of areas of control to the Scottish Parliament. But the nit-picking on detail by the NO camp - the unionists - is patently ridiculous, e.g. what about the DVLC etc.

No rational person can expect the electorate to be buried alive under the minutiae of government  administration, and no reasonable member of the electorate wants to be asked to ratify every detail.

So my answer to Question One is that the electorate must know what is meant by independence on the big, fundamental questions,and my belief is that they already know most of the answers, but that they must be re-stated in clear an unequivocal terms.

The exception to the above is defence and the nuclear issue, as already stated. The electorate must be given clarification now on these fundamental questions by the government that they so recently and decisively elected. They will undoubtedly get - and are getting - answers from the NO campaign, answers that will be at best a distortion of the truth, and at worst, plain scaremongering lies.

That was the unionist parties’ shameful record in the election campaign, and they won’t change now.

Q2. What is the case for voting NO, i.e. for the status quo - no change to the present arrangements?

The answer is that this is the business of the unionists - the NO campaign - and they are already sedulously engaged in it.

Q3. If there is a YES vote, should there be a second referendum to ratify the heads of agreement reached by the Scottish Government team and the UK Government?

My answer is an emphatic NO. 

No other nation negotiating the terms of their independence has done such a thing, or been expected to do it.  If anyone has examples to the contrary, let them bring them forward. Once the electorate of a nation has been offered and accepted the choice of demanding their independence, they have trusted their elected representatives to get the best deal the can, in the context of broad understanding of the fundamental of their government’s position.

The demand for a second referendum, like the demand that the minutiae of independent government should be spelled out in advance should be seen for what it is - an attempt to muddy the water, confuse the electorate and to bury the core issues in mass of detail.

It is an attempt to second guess an outcome to the independence referendum that the unionists don’t like.

Reject it completely.