CHAPTER 4: negotiations
Pre-negotiation
85. The UK Government's position is that they
will not negotiate the terms of independence before the referendum:
they will not "pre-negotiate". The first Scotland
analysis paper elaborated that, "This is because of a
profoundly important principle arising from the fact that the
UK Government is one of Scotland's two governments. UK Government
ministers represent the whole of the UK, including Scotland, and
serve the interests of all its citizens. As such the UK Government
has direct responsibility for many of the key areas likely to
feature heavily in post-referendum negotiations".[90]
Moreover, unless and until a "yes" vote is delivered,
neither the UK nor the Scottish government have any mandate to
negotiate independence.
86. The Scottish Government's written evidence
stated:
"The Scottish Government accepts that detailed
negotiations on the independence settlement cannot begin ahead
of the referendum. However, we believe that sensible discussions
about the practical consequences of independence should take place
to help the people of Scotland to make an informed choice and
prepare the way for detailed negotiation following a vote for
independence."[91]
87. Alex Massie was firm in saying that the UK
Government should not pre-negotiate:
"from a political point of view the UK Government's
position is transparent and sensible ... The thought of pre-negotiating
any aspect before the result is known strikes me ... as idiotic.
There is no upside to the UK Government doing that ... The UK
Government are not a neutral arbiter in this. They are not drawing
up the rules of engagement for the referendum; they are an active
participant in it."[92]
88. It has been argued that, in spite of their
formal stance of "no pre-negotiation", the UK Government
have in effect engaged in negotiations by publishing their Scotland
analysis papers and setting out their position on matters
such as a currency union.[93]
This suggestion merits close examination.
89. The Scotland analysis papers are intended
to provide a "comprehensive and detailed analysis of Scotland's
place in the UK."[94]
They thoroughly set out the facts of the debate and address all
sides of the argument. David Torrance described them as "surprisingly
apolitical ... they are not really making a political argument;
they are describing the status quo."[95]
Providing such information is essential to ensuring there is an
informed debate, in the same way as the Scottish Government's
white paper seeks to inform voters of what a "yes" vote
would mean. While we heard that Scotland's Future also
sets out the Scottish Government's key negotiating positions and
the Scottish National Party's longer-term vision,[96]
the Scotland analysis papers cannot be regarded as an exercise
in pre-negotiation.
Rest of the UK negotiating team
90. Two options have been put to us as to who
should be on the negotiating team for the rest of the UK: representatives
of the UK Government alone, or a cross-party group of negotiators.
91. In 1921 the creation of the Irish Free State
was negotiated by UK ministers alone (representing a coalition
government).[97] The
2012 Edinburgh agreement was negotiated by the UK Government.
Lord Mackay of Clashfern and Professor Boyle both envisaged the
negotiating team for the remainder of the UK being the UK Government
alone.[98]
92. There would be advantages to having a team
comprised solely of the UK Government (though during a coalition
such a team might be expected to contain ministers from more than
one party). It is likely to be smaller than a cross-party team,
which militates against negotiations becoming unwieldy. There
would be an established process for a UK Government team reaching
agreement amongst its members on negotiating positions (i.e. the
Cabinet and cabinet committees), with a single figure (the Prime
Minister) as the final arbiter. The principle of collective responsibility
should mean that the team is disciplined and collectively defends
its positions. There are established means of holding the negotiators
to account.
93. There are, however, risks to having a team
comprised solely of the UK Government. The biggest risk is of
a change of government at the general election in 2015 (or conceivably
at some other point). In advance of the election, the Government
might be reluctant to enter into binding commitments lest they
be overturned by another government. Alternatively, a new government
after 2015 might seek to reopen issues that both sides had thought
were settled before the election. If negotiators for a new UK
government wish to reopen issues then the Scottish negotiators
might want to reopen other issues. Different parties' negotiating
positions might become an issue at the general election. Sensitivities
around a new UK government which relied for its majority on Scottish
MPs (as discussed in the previous chapter) may also have a bearing.
94. An alternative would be to have a cross-party
group of negotiators. David Torrance favoured this as it would
mean that a change of government would cause "minimum disruption".
He stated, "the three "Unionist" parties have already
worked together under the "Better Together" banner and
hold broadly the same position in relation to a currency union,
defence, and so on."[99]
95. If there were a cross-party team, it would
need to be decided which parties should be included. The three
main Westminster parties would be obvious, but it might be that
other parties represented in Parliament would want to be included.
Representatives of the Northern Ireland Executive and the Welsh
Assembly Government could be included,[100]
though there would be sensitivities particularly about which Northern
Irish parties to include. One idea is for a convention to be convened,
mirroring the broad range of negotiators on the Scottish side
that the Scottish Government's white paper envisages.[101]
96. Some witnesses stressed the advantages of
other parties and other devolved executives being involved in
the process, but without necessarily being part of the negotiating
team. Donald Shell, a former senior lecturer in politics at the
University of Bristol, thought it important that the negotiators
were "seen as representative of all major political parties
and of Wales and Northern Ireland ... it is strongly desirable
that all parties feel a sense of ownership of the process and
thereby the outcome".[102]
Dame Rosemary Butler AM, the Presiding Officer of the National
Assembly for Wales, referred to the negotiators taking account
of the views of the remaining devolved jurisdictions.[103]
97. The best approach would be for the negotiating
team to be composed solely of representatives of the UK Government.
The team should be small and able to act quickly and with authority.
It would also be important for it to be held fully to account
by Parliament through established means.
98. It would be desirable for there to be
broad agreement on the scope and aims of the negotiations, and
for any change of government in 2015 to cause as little disruption
as possible. It would be important for the official opposition
at Westminster to be fully consulted during negotiations. Similarly,
given the interests of the devolved executives in Northern Ireland
and Wales, it would be important to keep them closely involved.
INVOLVEMENT OF SCOTTISH MPS
99. A related issue is whether MPs representing
Scottish constituencies should be included in the negotiating
team for the rest of the UK.
100. If, as discussed in the previous chapter,
Scottish MPs remain members of the House of Commons until independence
day, then it may be thought that they should not be prevented
from negotiating on behalf of the rest of the UK. Professor McLean
said, "I do not consider it at all likely that this [UK]
Parliament would fetter itself not to include any Scottish representatives
in its negotiating team."[104]
101. On the other hand, Lord Mackay of Clashfern
said he expected the rest of the UK negotiators not to include
those who are Scottish.[105]
The Secretary of State for Scotland thought it a "statement
of the blindingly obvious that you would not expect somebody from
England, Wales or Northern Ireland to negotiate on behalf of Scotland
and so you would not expect a Scot to negotiate on behalf of people
from England, Wales and Northern Ireland. You start from the presumption
that these are countries that are foreign to each other at that
point and will each pursue their own national interest."[106]
102. We recommend that MPs representing Scottish
constituencies should not be on the negotiating team for the rest
of the UK. Their duty as representatives of their constituents
in Scotland would conflict with the objective of that negotiating
team: to secure the best outcome for England, Northern Ireland
and Wales.
Accountability and ratification
103. The consensus amongst our witnesses was
that the appropriate body for holding the rest of the UK negotiators
to account would be the UK Parliament.[107]
That would make particular sense if, as we recommend, the negotiating
team would be composed solely of representatives of the UK Government:
the Government are already wholly accountable to Parliament.
104. An issue would arise over the position of
Scottish MPs in holding the rest of the UK negotiators to account
and in ratifying any agreement or legislation which resulted from
the negotiations. Related to that would be the possibility that
some Scottish MPs (or peers) could become negotiators for Scotland[108]—there
should be no risk of them being in a position to hold the rest
of the UK's negotiators to account.
105. It has been a feature of our constitutional
arrangements that all MPs are entitled to participate in all matters
that are before the chamber of the House of Commons on an equal
basis, regardless of which constituency they represent. Until
now, there has been no law, convention or practice that can prevent,
for example, an MP representing a Scottish constituency from voting
on a bill which extends to England and Wales only.
106. However, were the people of Scotland to
vote in favour of independence, then the ability of Scottish MPs
to hold the rest of the UK negotiators to account would be questioned.
Professor Boyle said that it was "difficult to see any role
for the Scottish MPs" in this process. He argued that they:
"could surely not sit in judgment on whether
the terms of any agreement are acceptable to the UK, a state from
whose parliament they would thereafter be excluded. At best Scottish
MPs might try to persuade Parliament to grant terms more favourable
to Scotland than those negotiated on their behalf by the Scottish
government. At worst they might be accused of undermining a deal
negotiated by that government."[109]
107. If it was accepted that Scottish MPs should
not participate in holding the rest of the UK negotiators to account,
nor in any ratifying vote, the question would be how to achieve
this. One option would be legislation; another would be for the
Commons to pass a standing order or a resolution preventing their
participation; a third would be an informal arrangement whereby
MPs absent themselves.
108. Professor Tierney[110]
and Alex Massie[111]
thought that Scottish MPs informally absenting themselves would
be appropriate. The Secretary of State for Scotland was reluctant
to comment as the matter was hypothetical,[112]
but referred to the ability "of both Houses to set their
own sessional orders and standing orders and to determine the
manner in which their own business is conducted."[113]
Professor Boyle thought that it would be "very peculiar"
to have Scottish MPs participating, and that "appropriate
legislation" could be passed if necessary.[114]
109. We conclude that MPs for Scottish constituencies
should not be involved in holding the negotiators for the rest
of the UK to account, nor in voting on any measure which ratifies
the outcome of the negotiations. In the event of a "yes"
vote, we recommend that the Government put before Parliament a
proposal that would put this matter beyond doubt before the 2015
general election.
Timetable for negotiations
110. The Scottish Government have set out their
proposed timetable for independence: "After a vote
for independence, the Scottish Government will reach agreement
with the Westminster Government and the EU on arrangements for
the transition to independence, based on our proposed date of
24 March 2016."[115]
The elections due in May 2016 would then be the first for a newly
independent Scottish Parliament.[116]
There are mixed views on how realistic this timetable would be.
111. The Scottish Government told us that it
would be realistic, as "international examples show that
countries can make significant constitutional changes happen quickly
once a democratic decision is taken."[117]
112. The Edinburgh agreement does not mention
a date for independence. It requires the UK and Scottish governments
"to work together constructively in the light of the outcome,
whatever it is, in the best interests of the people of Scotland
and of the rest of the United Kingdom."[118]
Professor Boyle said that negotiations must be "'meaningful'
and each side must be willing to listen and take account of the
other's interests."[119]
However, he observed that there was no legal obligation on the
UK Government to respect the Scottish Government's proposed timetable,
and that the requirement to negotiate in good faith did not mean
agreement by a specific date.[120]
113. David Torrance thought that, although it
was impossible to be certain, the Scottish Government's timetable
was "not only realistic, but [the negotiations] could be
settled in a shorter time-frame, or at least the headline issues
could be."[121]
He referred to the fact that negotiations over the detail of other
secessions—for example Czechoslovakia—have continued
after independence day.[122]
If it were possible for independence to take place without all
issues being resolved, then there would need to be agreement on
what could be left to negotiations post-independence. Mr Torrance
thought that "long drawn-out negotiations would be in neither
side's interests";[123]
both sides would be concerned with "actually governing their
respective countries."[124]
114. Other witnesses pointed to the scale and
complexity of the negotiations to suggest there was little chance
of them being completed to the Scottish Government's timetable.
The Secretary of State for Scotland said:
"You are looking at unpicking ... the single
most successful economic, political and social union, which has
now endured for over 300 years and which has produced institutions
that are, rightly, the envy of the world. That ... will require
an enormous amount of complicated negotiation."[125]
115. Two factors may extend the time required
for negotiations. The first is the process of setting up the negotiating
teams: this would involve both sides selecting their members,
determining the mandate and putting in place measures for holding
them to account. The time taken would, of course, depend on the
size and composition of the teams.[126]
This process may be further delayed if (as discussed in chapter
3) the teams were not on an appropriate legal footing.
116. The second potential cause of delay would
be the UK general election due in May 2015. In the months up to
the election the UK Government would be likely to be preoccupied
with preparing for it, and so may not make the negotiations their
priority. Before the election there will be more than a month
of "purdah", during which the UK Government could not
ordinarily enter into commitments which would bind their successors.
If, after the election, there was a hung parliament it may take
time for a new government to be formed. If a new government were
formed, they would have to set up a new negotiating team. It is
conceivable that that team would want to re-examine issues already
negotiated. Professor Tierney speculated that there may be a government
after the election that depended for its majority on Scottish
MPs, and so might want to draw out negotiations.[127]
117. The Scottish Government have proposed
a timetable of completing negotiations on independence by March
2016. There is no constitutional principle by which that timetable
would bind the rest of the UK. The UK Government should not put
the interests of the rest of the UK at risk by attempting to stick
to that timetable. Any negotiations should take as long as necessary;
they should not be foreshortened in order to meet a deadline set
by one party to the negotiations.
90 Scotland analysis: Devolution and the implications
of Scottish independence, para 2.45. Back
91
Written evidence from the Scottish Government, para 9. Back
92
Q 45. Back
93
Q 46. Back
94
Scotland analysis: Devolution and the implications of Scottish
independence, executive summary, para vi. Back
95
Q 52. Back
96
Q 46. Back
97
Written evidence from Prof Alan Boyle. Back
98
Written evidence from Lord Mackay of Clashfern; written evidence
from Prof Alan Boyle. Back
99
Written evidence from David Torrance. Back
100
This was suggested by Alex Massie: Q 61. Back
101
Scotland's Future: Your Guide to an Independent Scotland,
p 552. This was proposed for the rest of the UK by the Law Society
of Scotland. Back
102
Written evidence from Shell. Back
103
Written evidence from Dame Rosemary Butler. Back
104
Q 6. Back
105
Written evidence from Lord Mackay of Clashfern. Back
106
Q 33. Professor Tierney (in written evidence) and Mandy Rhodes
(Q53) made similar points. Back
107
See, for example, the written evidence of Professor Boyle, David
Torrance and the Law Society of Scotland. Back
108
The Scottish Government's written evidence stated that they would
invite "prominent Scottish Westminster politicians"
to join the Scottish side in negotiating independence. Back
109
Written evidence from Prof Alan Boyle. Back
110
Written evidence from Prof Stephen Tierney. Back
111
Q 62. Back
112
Q 39. Back
113
Q 36. Back
114
Q 22. Back
115
Scotland's Future: Your Guide to an Independent Scotland,
p 30 Back
116
Scotland's Future: Your Guide to an Independent Scotland, p
51. Back
117
Written evidence from the Scottish Government, para 2. Back
118
Agreement between the United Kingdom Government and the Scottish
Government on a referendum on independence for Scotland, October
2012, para 30. Back
119
Written evidence from Prof Alan Boyle. Back
120
Written evidence from Prof Alan Boyle. Back
121
Written evidence from David Torrance. Mandy Rhodes also thought
that "headline issues" could be agreed within the Scottish
Government's proposed timetable (Q 55). Back
122
The Scottish Government also cited the example of Czechoslovakia:
Scotland's Future: Your Guide to an Independent Scotland,
p 342. Back
123
Written evidence from David Torrance. Back
124
Q 55. Back
125
Q 30. Back
126
The First Minister of Scotland has stated his intention to have
the Scottish negotiating team ready to start within 12 days of
the referendum: 'SNP conference: Alex Salmond tells party 'Team
Scotland' negotiations would start days after a 'Yes' vote on
independence', The Independent, 12 April 2014. Back
127
Written evidence from Prof Stephen Tierney. Back
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