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7 February 2013

Sleepers in St Andrew's
House? They may
already be embedded

James Aitken

Where the spies are. Photograph by Islay McLeod

I may have missed it, but amidst the brouhaha about Scottish independence, no commentator seems to have addressed the question of whether Scotland has the human resources and institutional capacity to negotiate a successful independence settlement if the referendum delivers a 'Yes' vote.

'Scotland's Future: from the Referendum to Independence and a Written Constitution', published by the Scottish Government, looks at the broad framework of independence but does not have much to say on the details of negotiation.

In Scotland we tend to look at what we might gain or lose from independence in rather misty-eyed terms of nationhood or increased or decreased economic prosperity. But for Whitehall and Westminster politicians, the stakes are high and clearly defined. In addition to fears of the demise of the Labour Party in Westminster, the potential threat of Scottish independence ranges from losing revenue and energy reserves, through the threat to the nuclear deterrent, with a consequential diminution of the international status of a downsized United Kingdom. At worst, questions may arise about its continuing right to a place on the UN Security Council.

Unsurprising then that Michael Moore recently indicated that Whitehall would play hardball in any negotiations. In retrospect, it could be argued that negotiations started in 1999 with DEFRA's use of the UN Convention of the 'Law of the Sea' to delineate fishing rights (and mineral rights) between Scotland and England in the North Sea. Not a good augury.

The article in the Scottish Review (17 January) which referred to a 'little-publicised group of permanent secretaries and distinguished economists...which is preparing the ammo for the preservation of the union' recognises that both Edinburgh and London are already preparing position papers and negotiating stances to take account of independence or more devolution.

What form is any negotiation likely to take? Because of its intergovernmental nature, it will be very different from anything that we have experienced in Britain since Irish independence in the 1920s. Probably the best guess is that negotiations would take the form of a cross between the Zimbabwe Independence Conference and European Union-style negotiations in sectoral committees eg defence, economic, energy etc, themselves subdivided into specialised subcommittees on eg the national debt, banking regulations, intellectual property rights etc.

Ministers would take the lead in plenary conference sessions and committees, while negotiating teams in sub-committees would be staffed by civil servants reporting to ministers. The Zimbabwe negotiations showed that activity takes place at two levels – overt in the negotiating sessions consisting of ministers or civil servants which in turn are supported by briefing and covert intelligence – signals intelligence (Sigint) and human intelligence (Humint).

Looking at the overt negotiations, how do Whitehall and Edinburgh compare in international negotiating skills and capacity? Whitehall has a significant pool of civil servants who have experience of international negotiation both with governments and in international organisations like the UN and the EU. This includes both staff in the Foreign Office (FCO) and Whitehall home departments where the latter's experience of EU committees will give them a particular advantage.

The sheer number of staff with relevant experience means that Whitehall will be able to staff and service a large number of committees with people who have already honed their skills in the international arena. Whitehall's first move is likely to be to establish a central Scottish independence negotiation unit (Sinu?) in the Cabinet Office staffed by FCO officials and civil servants from the home departments whose task will be to form a strategic negotiating position.

This structure will be matched by units in each department whose task will be to feed position papers and negotiating briefs into the central unit to support negotiating teams drawn from the FCO and home civil service. This structure can access the resources of Whitehall's legal staff and the intellectual property held in Whitehall (including Treasury statistics and departmental archives). Coupled with the institutional memory of the home departments, this provides a formidable negotiating structure, with the capacity to cover a large-scale negotiation in depth.

By comparison, because of the nature of its current remit, the Scottish Government is unlikely to have many staff with direct experience of international negotiations. Some will have participated in EU fisheries negotiations, others may have some experience through trade organisations or Scotland's overseas aid programme but there does not appear to be a similar breath of experience to that held by Whitehall. Its legal staff cannot be expected to have an in-depth knowledge of international law and it will not have back-up resources like the Treasury economists or the FCO Library.

It is hard to see how this can be rectified between now and 2014, despite David Cameron's pledge that he is prepared to 'share' information with the Scottish Government. For example, the Scottish Government could lay claim to equal and unfettered access to the intellectual property held in Whitehall. But even if this was conceded, it is not clear whether St Andrew's House has sufficient experienced staff to exploit such a resource in negotiations. Again, while the Scottish Government can set up a unit to co-ordinate an independence strategy, it may not have sufficient suitably experienced staff to service the negotiations, let alone reach a settlement which is in Scotland's interests.

The Edinburgh government will also be at a considerable disadvantage with covert intelligence. Because of the way in which Scottish independence can be perceived in Westminster and Whitehall as a 'threat' to the integrity, and hence the security, of the existing UK, the security services could be legitimately tasked to discover all they can about the Scottish negotiating position.

While, according to the Scottish Review, Peter Housden is excluded from the current round of cosy chats on Scotland in Whitehall, it's a fair bet that any paper produced on independence by St Andrew's House will be circulating in Whitehall's red boxes within 24 hours, along with reports on discussions in private office and ministerial exchanges. Sigint can provide access to the computer system while Humint will fill in the gaps. It would be surprising if 'sleepers' have not been embedded in St Andrew's House and Victoria Quay, ready to be activated as required.

The US has made it plain in the past that a nuclear-armed UK is in US interests. It follows that any threat to the UK deterrent is a threat to the US and our security services can look to support from US agencies even in activities which might be considered dubious under UK law. In short, every move by ministers and civil servants in Scotland will be known to the opposing negotiating team. By contrast, the best the Scottish Government can hope for is probably a few spilled beans from Whitehall, or possibly some hints from well-placed people who feel Scotland is getting a bad deal. Perhaps the best tactic for the Scottish Government would be to ask the UK Government for a commitment that the UK and allied security services will not be used in the independence process.

With such overt and covert advantages, Whitehall's negotiating tactics would probably be to go for a long drawn out war of attrition in the hope that Scotland would be worn down into accepting a poor settlement.

Although the Scottish Government's attempt to begin negotiations before the referendum is a sensible way of spreading the load, rather worryingly, 'Scotland’s Future: from the Referendum to Independence and a Written Constitution', hints that at points Scotland would attempt to negotiate with Whitehall, the EU and sundry unspecified international organisations simultaneously. It also states that it would invite 'representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the government in negotiating the independence settlement and in ensuring the continuity of those public services which are in reserved areas'. This seems a major organisational challenge in itself.

The same arguments apply to 'Devomax'. A high vote for independence, which fell just short of a majority 'Yes', would likely lead to Westminster and Whitehall offering what they would see as a generous settlement, if only for fear of something worse. But the Scottish Government would still have to maximise this through negotiation. A low vote for independence would give St Andrew's House a very poor negotiating stance with an outcome likely to border on the status quo plus a few cosmetic touches.

This summary may sound very pessimistic, but it is hard not to conclude that, in its present state, Scotland does not possess the capacity to negotiate an independence settlement which would maximise the benefit to the people of Scotland.

Oh, and PS, don't mention the European Union...

James Aitken was a Whitehall civil servant involved in overseas development. He managed the British aid programmes to a number of developing countries including Kenya, Uganda and India. He is now retired