Scottish independence: constitutional implications of the referendum - Constitution Committee Contents

CHAPTER 4: negotiations


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.


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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