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Showing posts with label negotiation. Show all posts
Showing posts with label negotiation. Show all posts

Saturday, 8 March 2014

Ius Naturale – the Referendum and pre-negotiating positions

THE REFERENDUM

Some of the ideas here come from a two-year old blog – I’ve pulled out the essence that I believe is still pertinent.

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.

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, UK. 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. Most of them are self-evident as heads of negotiation – have a read at Scotland’s Future if you’re as bereft of ideas as you appear to be.

And lastly, Alistair Darling, David Cameron, George Osborne, Alistair Carmichael – and Gordon Brown(?) - if you want to go down in history as statesmen, rather than as pompous windbags, 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 - and England's and Wales's and Northern Ireland'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 ...

Saturday, 5 January 2013

Negotiating issues after a YES vote

The two principal negotiating interfaces will be

1. With the UK Government to agree the processes leading to independence.

2. With the EU to consider the implications of an independent Scotland for Scotland’s EU membership

There will be many other negotiating interfaces, but until the key heads of agreement are reached with UK and EU, they will either be held in abeyance or very tentative in character, since they are in significant part dependent on the outcome of the two primary negotiations.

UK Government negotiations

Two main issues will dominate the negotiating agenda – defence (crucially the nuclear issue), and the division of assets and liabilities.

The two key secondary issues will be a currency union and the status of the Bank of England, and complex administrative issues across a wide range of topics, e.g. pensions, tax, benefits, records.

Classifying the issues as either conflicts of right or conflicts of interest, with the legal dimension (UK law, Scottish law, EU law, international law) of conflict of right issues potentially introducing unacceptable delay factors, will be crucial.

EU membership negotiations

These will focus principally on the Scottish government’s position that Scotland is still a member versus a possible EU view that they must re-apply for membership.

The reality is that independence is a game changer and nothing can be taken for granted, legally or otherwise.

The EU that negotiates after a 2014 YES vote is likely to be a very different EU from its present form (Europe is in near-chaos and a ferment for new possibilities, e.g. much tighter monetary union).

NEGOTIATING – DYNAMICS AND PROCESSES

Negotiating is a technique - one of many - for reaching agreement between parties - force, authority, legal process, joint problem solving, selling, persuasion, etc.

It may be used as part of a portfolio of techniques, and may or may not be the principal technique. It may be used alone.

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.

The technique falls into broad categories – analysis, structure, strategy and tactics and, crucially, behaviour, i.e. the face-to-face interaction of the negotiators.

Negotiators may be accountable to no one but themselves, that is to say, they are their own Principals and have absolute discretion over their side of the process.

Negotiators may also be accountable to a Principal (or Principals) who are not present at the face-to-face negotiation but who play an intimate role in preparation and strategy formulation and have ultimate authority to ratify or reject deals. In such cases the negotiator is the Agent of the Principal (like the lawyer/client relationship).

In a large organisation – or a democracy – the Principal will be accountable to a wider, larger group or groups – the Board, the shareholders, the employees, the customers and the politician to the Government, the Party and ultimately to the voters.

A negotiator may negotiate alone or as part of a team of negotiators. Negotiating team roles, discipline and behaviour are a crucial determinant of negotiating success.

In multi-element, complex negotiations, a back-up team of experts is a vital resources – lawyers, technical people, finance experts, etc. It is not unusual for complex negotiations to be modelled – i.e. to have computer based simulations and models – and to have complex spreadsheets and algorithms to compute the impact of possible changes.

A negotiation that that will take place in the public eye (government, major company or government terms and conditions bargaining, strikes and industrial action – actual or threatened) requires a sophisticated media strategy, not least because everything said – or not said(!) to media – communicates something to the other side of the negotiating table (whether intended or not).

DISTRIBUTIVE vs INTEGRATIVE BARGAINING IN NEGOTIATION

In zero sum games (Games Theory) what one negotiator gains the other loses and vice versa – a finite pot is divided unequally. This is sometimes called distributive bargaining (Walton & McKersie).

Such negotiations are possible, but are highly stressed, prone to deadlock and breakdown, and any deal reached is perceived as having a winner and a loser, relatively speaking. (The recent Fiscal Cliff negotiations are a good example)

Wherever possible, negotiators should strive to add value for both sides by showing new potential for gains to both sides that do not involve win/lose scenarios – the so-called integrative bargain or win/win scenario.

This demands lateral thinking, vision and creativity.

Thursday, 20 December 2012

The cool logic of John Swinney in the face of a parcel of British Lords–1st tranche

Lord MacGregor

All of these quotes are from the Lords Committee on the Economic implications of Scottish Independence on 11th December 2012. This is my personal selection from a wide-ranging discussion. I hope to cover the full session in later blogs.

John Swinney MSP

The 2013 White Paper

The culmination of the information we shall put into the public domain will be our White Paper next autumn, setting out our proposals clearly for the people of Scotland.

The process of transition

From a YES vote in 2014 though to independence in 2016, Scotland will remain part of the United Kingdom as we put in place the structure of an independent Scotland. That will be done through the Edinburgh Agreement and in particular Clause 30, which states that the two governments are committed to work together constructively in the light of the outcome – whatever it is – in the best interests of the people of Scotland and the rest of the United Kingdom.

(Lord MacGregor made it clear in his introduction that his committee was not considering the political and non-economic aspects of the referendum but solely the economic implications for both Scotland and the rest of the United Kingdom (rUK). To what degree the Lords present remained within the letter and spirit of those terms of reference in their questioning of John Swinney is something that must be judged by those viewing the full Parliament channel broadcast.)

John Swinney in responses to questions on EU

On Scotland’s EU membership re Barroso’s letter -

There is no provision within the Treaty on European Union that provides for the scenario that President Barroso has cited in that particular paragraph of his letter.

The course of action that we are proposing to take [the creation of an independent Scotland] is an unprecedented case – it is not something for which the Treaty has provided.

I don’t agree with the content of President Barroso’s letter for the reason that I do not see the basis within the treaty upon which that remark is founded.

On engaging in discussions with EU on the matter of an independent Scotland’s membership -

The Scottish Government accepts the importance of continued membership of the European Union for Scotland.

That is why we have continued to assert the belief that we have that Scotland is a part of the European Union, and we wish to remain part of the European Union after  independence.

The Scottish Government has taken forward informal dialogue with the Commission, but the Commission have been very clear for some considerable time that they would only consider a particular scenario if that particular scenario was put to them by a member state government.

We certainly would be very happy to participate  in  dialogue with the Commission around the question of resolving, in response to a request from a member state for clarity from the Commission on this point – and the very material point that I advance in that respect is the comment that I make about President Barroso’s comment not being founded in any part of the Treaty.

That therefore says to me – and this has long been a view that we have taken -  that this is a process which essentially would ultimately become a process of political dialogue and discussion between relevant member states to be resolved as a consequence of a YES vote in the referendum.

The referendum will take place in the autumn of 2014. We have always made clear there would have to be a process of negotiation transition that followed that decision in principle by people in Scotland that they wished to proceed to independence.

In that window, between a decision in the referendum in the autumn of 2014 and the establishment of an independent country – which we believe would be possible through the elections to the Scottish Parliament in May of 2016 – there is the opportunity to essentially resolve that particular question.

In response to query from Lord MacGregor as to whether it was to resolve the question of whether an independent Scotland would have to make a new membership application or the terms in which it would be made.

The terms of Scotland’s membership of the European Union. We are currently part of the EU .. through our membership of the UK – and we would making it very clear that we wished continuity of that membership to be available for Scotland, and as a consequence of that, we would be negotiating the details of terms around that membership.

Lord MacGregor offered his view that it was “a bit late to have come up with this answer overnight in response to Mr. Barroso’s letter …” He asked if there was independent legal advice to justify John Swinney’s assertion.

There are a variety of expressions of legal opinion. There was one just the other day there which was expressed by the professor of law for the University Glasgow who made the point in a broadcast interview. Professor Tom Mullen says there is no specific provision in the treaty that expressly deals with the situation of a member state breaking up and both parts wanting to stay in, and that confirms the view that I am taking.

I cited the House of Commons library paper earlier … The Lord Advocate of Scotland’s opinion has ben taken on this particular question, and that will be available when the Lord Advocate has completed the formulation of that opinion.

On being asked if he was “absolutely disagreeing with the fourth paragraph of Mr. Barroso’s letter …”

That is point which is the nub of this letter from the President of the European Commission … there is no foundation in treaty for that position to be supported.

Lord MacGregor queried if the Scottish Government had taken this point up informally with the EC. He “assumed that this letter had been extremely carefully considered and drafted.”

Well, as for its drafting by the European Commission – that’s a very interesting point because it seemed to be available to the wider media in Scotland before it was available even to this committee, from the press reports I saw last week – essentially, this reply being available to The Scotsman newspaper one day last week when it was not available to the Committee. So I think the drafting of the letter is a question of some interest I think to the wider debate on how ….

Lord MacGregor interrupts, saying his question is being ignored …

What I’m simply saying is that I think the point that’s made here is a point for which I do not believe there is foundation in treaty – and that’s  the issue – well, certainly one of the issues that we want to discuss very clearly with the Commission.

Lord MacGregor says that it’s late to be discussing this, and it will create even more uncertainty in the business community.

I don’t think it’s late all, Lord Chairman, because the Scottish Government – as I set out in my opening remarks – is going through a process which is about ensuring the public are properly informed about the issues in connection with the referendum in good time for the referendum in the autumn of 2014, and that will involve the production of a White Paper which will be available to people in the autumn of 2013.

That’s the process that we’re involved in – that’s our timescale for making sure that the public are able to form that view. If I look back at the documents that the Scottish Government has provided and produced over time on this whole question - whether it’s the original documents being produced after our election in 2007 or subsequent reports that we have produced – we have made the point that there would have to be a negotiation about the terms of Scotland’s membership of the European Union and that would be pursued with the European Union. We’ve always acknowledged the importance of a dialogue with the European Union on that question.

Lord MacGregor asks if the studies referred to included a Clear study of the views of the Scottish Government to the terms of entry that it might have to negotiate with the EU.

Clearly that would be the material substance of the discussions that we would take forward with the European Union. There would be a range of questions to be resolved about the terms of membership, and a Scottish Government would willingly participate in those discussions.

There followed the exchange with Lord Lipsey, and his contemptible “last refuge of a scoundrel” insult to Scotland’s Finance Minister. John Swinney responded with characteristic restraint and courtesy. On Lipsey asking if the Scottish government’s position on Barroso’s statement “could be sustained for a single second”, the Finance Minister responded -

Yes, because I think the point the Committee should be very interested in is the fact that there is no foundation in treaty for the point that President Barroso has made in that letter. I can’t see where that come from, and I think the sources and comments that I have cited to the Committee are designed to help the Committee to share the view that I have.

And I think it’s very interesting in the presentation of the letter that President Barroso – just on the start of the second page – gives a very clear treaty reference to the terms of a country applying to become a member of the EU (at the top of the page, Article 49 The Treaty on European Union: any European state which respects the principles set out in Article 2 of the Treaty of European Union may apply to become a member of the EU) and I completely accept that treaty reference and that comment.

But my point is that in the preceding paragraph, which is – and I agree with the Lord Chairman – a very significant paragraph – there is no treaty reference; and the reason why there is no treaty reference is that there cannot be any treaty reference because such provisions do not exist in treaty.

Lord Lipsey responds that there is a reference to the treaty as it only applies to member states, so it’s irrelevant whether there’s a treaty reference – of course there isn’t, because you’re not a member state. Now, I don’t understand this , why you don’t take the following line– “Yes, we accept what Dr. Barroso said; of course we wish to apply for membership to the European Community and I’m sure this will be solved politically … “ That seems to me a perfectly straightforward, sensible and defensible proposition. To retreat into what are clearly implausible reference to what’s referred to in the treaty to which you would no longer be signature, because you’re no longer part of the EU – that seems to me to be the last refuge of a scoundrel, if I may say so …"”

I think what that misses, Lord Lipsey, is the point that as Scotland is taking this particular course in the aftermath of a referendum in the autumn of 2014, Scotland remains  part of the European Union because we would still be part of the United Kingdom . We would not have enacted  the Act of Independence, and therefore in that period – after a referendum, before the establishment of an independent state in the spring of 2016, Scotland would be involved in a process of settling the independence process and conducting negotiations with the United Kingdom government, and also with the European Union about the terms of Scottish membership of the EU. In that context, I think it is an entirely appropriate way for us to proceed with the discussions that we must take forward.

Lord MacGregor asks if the negotiating process was unsatisfactory from his' [presumably meaning the Scottish Government negotiating team!] point of view, would he [they] would withdraw the desire for independence.

MY COMMENT (can’t resist it!) Only a British Lord could have framed and asked such a crass and patently stupid question!

JOHN SWINNEY: The people of Scotland will have decided in the autumn of 2014 whether or not Scotland is going to be an independent country – that decision will have been taken by people in a referendum – and what it is up to the political leaders of Scotland to do is to give effect to the decision the people of Scotland have taken.

Wednesday, 19 December 2012

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 jeuwith 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.

Saturday, 15 December 2012

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.

Sunday, 19 February 2012

Alistair Darling – naive, disingenuous, or just woefully unprepared for Isabel Fraser?

Alistair Darling has been an MP for 25 years. He served in the Labour Cabinet continuously from 1997 to 2010, and was Chancellor of the Exchequer for three years. Among the other post he has held are Chief Secretary to the Treasury, Sec. of State for Work and Pensions, Sec. of State for Transport, Sec. of State for Scotland and Sec. of State for Trade and Industry.

He is widely touted to lead the Campaign to Stop Scotland Becoming Independent, although he would prefer to call it Keep Scotland in Britain. (Since Britain has been an island for between 180,000 to 450,000 years, short of a drainage and infill plan for the English Channel, Scotland will remain part of Britain.) The campaign is, of course the campaign, to Keep Scotland in the UK, a political, not a geographical entity.

Given Darling’s curriculum vitae, one would expect him to be in command of his brief for an appearance on the Sunday Politics Scotland, a hugely influential news programme at this critical juncture in UK politics, not to mention European politics. Additionally, he was facing the programme anchor, Isabel Fraser, perhaps the most formidably effective political interviewer Scotland has produced, with a trained legal mind and forensic interviewing skills.

Watching his performance yesterday with increasing incredulity, I concluded that there were only three possible explanations for his lamentable performance -

1. He was politically naive. I think this can be safely rejected, except perhaps in the arcane area of negotiation, which politicians, unless they have a diplomatic background, are usually inept.

2. He was disingenuous. This seems the most likely partial explanation, namely, that he had been given (by who?) a brief to block questions about just what the hell David Cameron, his boss in the Campaign to Stop Scotland Becoming Independent - disorientated, full of Quaker Oats and full of emotional **** – meant when he delivered his jam-tomorrow ultimatum to the Scottish electorate – Vote No to your country’s independence and we might just give you some unspecified additional powers.

3. He was woefully unprepared. Whatever his state of mind or brief (1 and 2 above), Darling was undoubtedly woefully unprepared for the interview, both in factual terms, in strategic and tactical terms and above all in behavioural terms. (Half an hour with a bog-standard presentational skills consultant before the interview would have mitigated the disastrous consequences.)

THE INTERVIEW

Alistair Darling opened with what became his broken record theme, one that echoed the Prime Minister – the question “Are we staying in the United Kingdom or are we leaving” must be answered by a referendum “- sooner rather than later -” and must be answered first, then you decide what the consequences are. He also stated that tax raising powers had to be fundamental in any further devolution of powers.

Isabel Fraser: If what you are seeking is clarity in the debate, then isn’t it entirely reasonable that voters go into this referendum debate knowing exactly what you are proposing because here, today, you’re saying we could have more tax powers, they could be income tax powers …  I mean, within that, before we just leave that concept – are you talking actually about the rate of income tax or the threshold? Could we vary the threshold? And equally, if we have income tax powers, there's no point in having that if you want to be fiscally coherent unless you have borrowing powers which allow you to offset any fall in income tax revenue?

Alistair Darling: You could – but I mean, look -

Isabel Fraser: Are you saying all of that is up for discussion?

 Alistair Darling: Look, I don’t think anybody would argue that the status quo – what we have at the moment, erm – is satisfactory. It was fine in 1998. Things have moved on – the constitution is always something you need to look and see what’s best. But the first question you’ve got to ask before you get on top any change at all, is – Are we staying in the UK – or – are we going to leave? If we’re going to leave, a whole lot of other questions then arise: if we’re going to stay, then we can look at what further we need to do.

But I honestly cannot see for the life of me why we’ve got to wait till 2014 before we can actually answer that question. Why don’t we get on with it – we could easily have this referendum –eh – next year and decide that and then decide if – if we’re going to stay, then let’s look at what more we can devolve – what more powers the Scottish Parliament can have  - and I think, y’know – most people, I mean, y’know – David Cameron – in actually a welcome step for the Conservatives has said – look – he’s moved from the position of being – y’know – the traditional Tory position of being outrightly against any change to that there could well be change – and equally on the nationalist side … You know, if they’re going to leave the United Kingdom, then let’s look at some of the consequences of that …

Having just transcribed this rambling statement –which confirmed in spades my initial impression of it in the broadcast – I look again with incredulity at Darling’s c.v. above. I would have expected such fractured syntax and confusion of ideas from John Prescott, but from a former Chancellor of the Exchequer? Note the transition from ‘we’ when initially talking about the referendum decision to ‘they’, as in “You know, if they’re going to leave the United Kingdom ..” That confusion of identity is going to dog the Campaign to Stop Scotland Becoming Independent throughout. The Scottish electorate know who they are – the unionist coalition do not.

But back to the interview …

Isabel Fraser: But Mr. Darling, it would seem that what you’re proposing is a one-sided debate. I mean – why do we have to wait for the alternative? This is going to be the most important vote in 300 years of Scottish history. What you’re saying is – trust us, and we will deliver. You’re requiring this enormous leap of faith. Why, if you accept now the status quo is no longer an option, why not spell out clearly what the alternatives are so the people can make an informed judgement about whether we stay within the United Kingdom – or not?

Alistair Darling: Well, isn’t the first question you have to ask is – Are you staying or are you going?

Isabel Fraser: But people are already asking the other question. Is the fact that you’re not raising the possibility of further powers a concession that actually Labour in Scotland have been completely out of the game on this – you are so far behind the curve? Why don’t you seize the initiative and outline a coherent and positive case where people can make a judgement about whether what you’re proposing is what they want or not?

Alistair Darling: Well, actually you know – if you look at, erm – in the pipeline there are changes being made – the Calman Commission, and so on, which we set in train, but what – what, what I do think is that the way in which you address the question of whether we’re staying in the UK or whether we’re leaving is – is got to be a positive case, it’s got to be what is best for Scotland: and my answer to that question is – the Scotland will derive huge benefits from the strength of the UK, just as the UK has huge strengths about – eh, through being in the European Union. You’re part of a bigger – eh – country, you’re part of something that’s much stronger, that benefits can flow from that …

Now – the first question you’ve got to ask so far as the current debate is going on is – are we staying in the United Kingdom or are we leaving? Now, we could easily have that question decided far, far sooner than Alex Salmond wants. I understand why he wants to put it off – because he doesn’t think he can win at the moment. We need to answer that question now, and then once you’ve decided that,  then you decide – if you’re staying – well, what more, eh, powers does, eh, the Scottish Parliament need – that is best for Scotland. If you’re leaving, then – you know, you then have to ask all sorts of difficult question, to which at the moment, there are pretty vague answers. You need to get that discussion now!

Isabel Fraser: If, as you want, Scotland says no to independence, what kind of political leverage do you really imagine Scotland would have in going to Westminster and asking for more powers after a No vote in Scotland? It would have no leverage at all.

Alistair Darling: No, it – I think it would – because there is – you know, in a way that, eh, would have been unimaginable even a year ago – I think there is a consensus amongst all the political parties, and more importantly in some ways amongst Scotland itself, and, y’know, other parts of the UK that, that, that the settlement reached in 1998 – eh is – is not what we want at the moment – we need to move on from that. People fully understand that – and of course there’s going to be a lot of debate as to what you devolve or what you don’t, y’know, and what the arrangements might be … But the first question – I’m sorry to keep going – coming back to this is that – I understand fully well the nationalists don’t want – eh – they want to another option on the table to sort of muddy the waters here. Let’s answer the question – Are we staying or are we going? Once you’ve answered that question then, you know – then there does need to be, y’know, an immediate debate about what further powers the Scottish Parliament needs, and so on. 

And remember whilst all this is going on, an awful lot of people in – in Scotland are facing losing their jobs, who are worried about their children or their grandchildren – and so on … y’know, its the economy, that’s the thing that actually matters – these are the big questions. But let’s get this constitutional question decided one and for all -  it’s being raised now – let’s put it to the people and let the people decide, and then you know, the politicians have to get on with it And – and do what they what they need to do as quickly as they can.

Isabel Fraser: So, Mr. Darling, what message does Johann Lamont as leader of Scottish Labour have to give to the Labour conference in a few weeks, then? Fairly briefly, if you don’t mind – and clearly. What’s the message she has to get out?

Alistair Darling: Well, I think the message is very clear  - it’s got to be about – y’know, it’s about all the difference a Labour administration can make at the local authorities which are coming up for election in May – the difference that the Scottish Parliament already have in relation to training, in relation to education, in relation to our universities and so on. You know, this is a very powerful message – Labour can make a difference. and on the constitution, y’know – yes, we have moved – and yeah, we needed to move. Eh, but on the fundamental, question, we are much, much stronger – we will be a far better nation, eh, within the United Kingdom than we would by breaking ourselves apart from that. It is a very powerful message, and I’m quite sure she’ll make it.

Isabel Fraser: Alistair Darling, thank you very much indeed for that.



MY VIEW: Anyone who thinks Alistair Darling would be the right person to lead the Unionist campaign after this showing needs to think again. Coherence and charisma were notable by their absence from this  performance.

ANALYSIS

I can offer a negotiator’s summary of the situation  -

There is going to be a referendum in 2014 on Scotland’s independence. It cannot be stopped by the UK Government without risking a political upheaval, and they have, de facto, accepted this.

The UK don’t want Scotland to leave the UK.

The UK didn’t want a referendum at all, but since there will be one, they want it as fast as possible, with one question only.

The Scottish Government intend to hold a referendum in 2014 on Scotland’s independence. The SNP as a party want full independence, but opinion polls indicate that a substantial number of the Scottish electorate (and a body called Civic Scotland) want greater powers for Scotland but want to remain in the UK.

The Scottish Government, as the government of all the people of Scotland, are obliged  to ascertain what questions and what options the electorate want to see on the referendum ballot paper. This will be determined by a large-scale consultation, now underway.

No unionist (UK) political party has set out their views of what extra powers – if any- they envisage being granted, and no comprehensive arguments for remaining in the UK, other than vague emotional ones, coupled with the assertion that Scotland is better in than out, have been offered.

The UK Prime Minister has offered only tentative commitment to as yet unspecified powers, but only if Scotland votes no in the referendum on a singe YES/NO question to independence.

No agreement exists between the UK and the Scottish governments on -

1. The timing of the referendum.

2. Its legality.

3. The wording of the independence question.

4. Additional question on the ballot paper.

5. Votes for 16 and 17 year olds.

Since the referendum is a consultative referendum, a YES vote to independence would be followed by negotiations on the mechanics of implementing independence.

A NEGOTIATOR’S RECOMMENDATIONS

There are two negotiations in this situation, one of which has already started – which I will call the pre-referendum negotiation – and one which will start after the referendum result is known, which I will call the post-referendum negotiation.

The pre-referendum negotiation will be a prime determinant of the referendum negotiation, which negotiators sometimes call the context and agenda negotiation. It is critical from a power dynamics situation, since failure to reach agreement at this stage can result in unilateral action by one or both parties.

Political negotiations take place in a very different context to commercial negotiations because of the media spotlight and the information needs of the electorate. In this negotiation,  the Scottish Government is the change agent and the UK Government represents the status quo. The Scottish Government derives its mandate from the Scottish people, but within a devolved settlement controlled by the UK Government.

To use a very old negotiating classification, this is a conflict of interest, not a conflict of rights under UK law, although international rights do exist. Conflicts of interest are settled by agreement or by power: conflicts of rights under existing agreements are settled by negotiation or by law.

Essentially, the context is one of negotiations between nations, i.e. diplomacy, even though the Scottish Government is not yet independent. In the case of any nation seeking independence, the subordinate nation has to behave as though it were independent before that independence actually exists, i.e. it has to emphasise its capacity to act unilaterally even though the status quo does not theoretically permit it to do so. This is why much of the legalistic discussion that rages is peripheral and essentially meaningless.

The implicit unilateral action here is that the Scottish Government will hold a referendum on its terms and on its timing, with or without the permission and imprimatur of Westminster.

This has in fact gone beyond being implicit – it is explicit, and, de facto, has been accepted by Westminster, because the alternative would be civil unrest on a scale that would make the poll tax riots look like a tea party. Everybody in Scotland knows this – few are willing to publicly acknowledge it.

It is therefore vital that the UK Government gets its act together for the pre-referendum negotiation so that the referendum itself can be conducted in a national climate of consensus about its purpose, if not about its outcome.

The outcome of the referendum has to be accepted equally by those who voted YES and those who voted NO – and perhaps those who voted for other options on the ballot paper or papers. Only then can the negotiations that follow a vote for full independence – the post-independence negotiation – take place in the right atmosphere.

Only then can the negotiations – if any – that follow a vote for remaining in the UK be meaningful. Whether those negotiations take place at all will be determined in part by the balance of the vote, and critically, by whether or not choices other than straight independence, e.g. devo plus, devo max or devo something are offered on the ballot paper.

I therefore offer the following recommendations to the parties -

To the UK unionist parties and anti-independence campaign

Drop the pejorative, emotional language and concentrate on setting out the factual benefits of remaining in the UK

Stop pretending that Scotland being a free sovereign state within the European Union would be the same thing as being a devolved, non-sovereign part of the sovereign state of the UK. In the first case, it would be a free association of inter-dependent cooperation between nations: in the second, it is being a subordinate region of a sovereign nation within Europe, with no place at the European table and no capacity to influence the agenda.

Exactly the same recommendations in respect of the United Nations, and to membership of NATO or Partnership for Peace.

Stop trying to influence the outcome of the independence referendum by vague, unspecified commitments to offering a little more power conditional upon a No vote.

To the SNP and pro-independence campaign

Sharpen the vital democratic distinction between the SNP, as a political party and the party of government, and the Scottish Government as the Government of Scotland.

Make it clear that the SNP does not want anything other than independence and a single question referendum, and that this is the party’s unified consensus.

Make it clear the the Scottish Government will only include a devo max or devo plus type question in the referendum ballot if the consultation exercise clearly demonstrates a wish for such an option, and that if it doesn’t, no such option will be included, regardless of the views of Civic Scotland or any other non-democratic body.

Set an early deadline for the conclusion of the pre-referendum negotiations on the points of disagreement. i.e.

1. The timing of the referendum.

2. Its legality.

3. The wording of the independence question.

4. Additional question on the ballot paper.

5. Votes for 16 and 17 year olds.

A negotiation without deadlines is an endless negotiation – be prepared to call time if negotiations fail, and unilaterally state the Scottish Government’s position on items one to four above. (It is probably a bridge to far to unilaterally commit to votes for 16 and 17 year olds.)

Publicly acknowledge and reiterate at every opportunity(it has already been stated at road shows, meetings etc.) that the independence of Scotland is a bigger question than the manifesto of any single party, nationalist and unionist, and that how Scotland is governed - and by which party or parties - after independence will be the decision of the Scottish people in democratic elections.

 



Monday, 11 October 2010

Linda Norgrove rescue attempt – operational judgments in question?

Linda Norgrove's death touched us all - a young, idealistic woman from the island of Lewis, born in Altnaharra, Sutherland - a fellow Scot, intelligent, committed, with a bright future ahead of her - a future that now, tragically, will never be realised  We should also remember that at least two other women were killed in this rescue attempt, but because they were Afghan women, we will never know who they were, what they were, and what they could have become.

Yesterday and this morning the media gave huge prominence to the initial version of events put out by the American forces. The tabloids could hardly conceal their delight, under a mask of grief, at the opportunity to run headlines like "murdered by the Taliban", "killed by Al Quaeda" etc. and The Herald, the one remaining Scottish quality newspaper, ran a front page story that accepted uncritically at face value the version of events provided to them by the ISAF task force. Any journalist worth their salt would at least have looked hard at the assertions about the hostage takers killing Linda, or detonating their suicide vests, on the old principle that the dominant force in a military engagement writes the narrative to serve their own ends.

But it is worth recognising that our democracy still permitted the truth to emerge, and it is to General Petraeus’s credit that he went beyond the first, predictable version of events, and sought the truth, which is still emerging.

That the Taliban are capable of such a brutal murder I do not doubt for a moment, nor that Linda's kidnapping was an act of utter cynicism by her captors, with no regard for the fact that this incredibly brave young woman was there to unselfishly serve the people of Afghanistan. They are therefore ultimately responsible for the events that led to her death.

But questions must now be asked about the strategic and tactical judgments that led to the decision to mount an assault in darkness on Linda's captors instead of following the route of negotiation that had earlier led to the release of other hostages, after intervention by tribal elders. Such operations are fraught with risk, the primary danger being that the hostage or hostages will be inadvertently killed. The Iranian embassy siege and assault by the SAS in London many years ago was a model of how this can achieved the desired result. As the ex-SAS man on the programme sadly observed, one thing the rescuers don't do is throw grenades.

The sight and sound of William Hague, our new Foreign Secretary, inflated with Churchillian pomposity, attempting to gloss over the clear inadequacies of the judgements that led to this tragic failure sicken me. Churchill, as a young man, saw active service, placed his life at risk in the Boer War, and was captured then escaped. William Hague is a precocious schoolboy grown into a right-wing Tory, who has made himself rich by his undoubted public speaking talents, but he has never seen any active military service as far as I know, has never been in harms way, and all his rhetoric seems hollow and, frankly, revolting in the present situation.

We needs some answers, for Linda's sake, for her parents sake, and for all our sakes.


Friday, 26 March 2010

Why are the Unions always the bad guys? (Part One)

"One of the eternal conflicts out of which life is made up is that between the efforts of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return.

Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.

The fact that the immediate object of the act by which the benefit to the unionized workers is to be gained is to injure the employer does not necessarily make it unlawful, any more than when a great house lowers the price of goods for the purpose and with the effect of driving a smaller antagonist from the business."

Justice Oliver Wendell Holmes – 1896

A dissenting judgement in the case of Vegelahn versus Guntner, an 1896 labour law decision from the Supreme Judicial Court of Massachusetts.

Although it took several years to make its full impact, this dissenting judgement was a seminal one in determining the course of American labour relations and collective bargaining in the 20th century, and its influence was felt throughout the industrialised world.

Its central argument carries the same force today, as we approach a United Kingdom general election in the midst of the BA strikes and the prospect of a national rail strike.

Americans are much more realistic about labour relations, sometimes brutally so, but after a century or more, attitudes in Britain remain naive and ill-informed, and the reaction of government and media commentators to strikes is remarkably consistent, and raises the question – Why are the unions always the bad guys?

I hope to examine this further in a subsequent blog.



Why won't these companies learn?

Keep your lip zipped in public comment through the media when there is a chance of averting the dispute. A strike threat is a negotiating tactic - until the workers actually hit the street. It is a way to stiffen a negotiating position against an otherwise all-powerful management negotiating team.

I gave you this advice as a consultant when you were British Rail, guys - but you have learned nothing in the 20 years since.