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Wednesday, 20 July 2016

Theresa May, Nicola Sturgeon, #indyref2, Brexit – negotiation dynamics analysis

Late postscript to original article

This important article, written by Ian Merrilees – CommonSpace was published 29th of July, after this blog was written. If Ian’s analysis is correct, it raises important questions for Nicola’s strategy, notably the question -

If Scotland as nation remains in EU but as part of Brexited UK state, what happens after an #indyref2?

My view remains that Theresa May cannot accept Scotland remaining in EU as a member nation of a Brexited UK, but one that is not an independent state. My belief is that the only way this could happen is for Michel Barnier, as EU’s chief negotiator, to specify that Scotland remaining in EU as a member nation is a deal-breaker in any Brexit deal concluded with UK. This is conceivable, but in my view, highly unlikely, however well-disposed EU is towards Scotland. For Theresa May to accept this would be conceding, de facto, an independent Scotland.

My view therefore remains that Scotland must pursue #indyref2 in parallel with UK’s Brexit timescale.

The context of the negotiation

A referendum was held on 18th September 2014 in which the Scottish electorate had the choice of voting Yes or No to Scotland’s independence. By 55% to 45% – on a high turnout – Scots voted No and rejected independence. The vote was made after an extended campaign in which promises were made by representatives of the UK Government, often referred to as The Vow, from a Daily Record article highlighting the promises made by Gordon Brown.

These commitments, together with many other statements by the Prime Minister, his Cabinet members, senior civil servants and the Better Together Campaign, included threats that an independent Scotland would not be accepted as a member of the European Union, but that Scotland’s future as part of the EU under UK would be secured by a NO vote.

The Scottish Government and the YES voting electorate made it clear that they felt The Vow had not subsequently been delivered in full, and the Scottish people demonstrated massive support for the Scottish National Party by joining as party members in unprecedented numbers

The Scottish electorate voted massively for the SNP in the May 2015 UK general election – reducing the unionist opposition MPs in Westminster to three (one from each opposition party) and returning 56 SNP Scottish MPs. In May 2016, the Scottish electorate returned the SNP as the largest party in the Scottish Parliament for a third term in government, together with six Green MSPs. This means that there is an overall majority of independence-supporting MSPs in the Holyrood chamber, although no formal coalition exists between SNP and Greens.

The Tory Government formed by David Cameron after the 2015 general election committed to hold a Referendum in June 2016 on the UK’s membership of the European Union, resulting in the SNP including in its manifesto for May 2016 an explicit clause reserving the right to call a second independence referendum if there was “a significant and material change in circumstances that prevailed in 2014”.

SNP Manifesto 2015, page 23

We will achieve independence
only when a
majority of our fellow
are persuaded that it offers
the best future for our country. Our
success will depend on the strength
of our arguments and the clarity of
our vision.

We believe that the Scottish
should have the right to
hold another referendum if there
is clear and sustained evidence
that independence has become
preferred option of a majority of
the Scottish people
or if there is
a significant and material change in
the circumstances that prevailed in
2014, such as Scotland being taken
out of the EU against our will.

The Scottish electorate in May 2016 returned an SNP Government on that manifesto and that commitment.

On June 23rd 2016, the UK voted to leave the European Union by a very narrow majority - by 52% to 48% - but Scotland, London and Northern Ireland all had a majority for remain. Scotland voted 62% to 38% to remain.

The new Prime Minister Theresa May and her new Cabinet have made their position clear – the 2014  Independence Referendum result was clear and binding, the Vow has been delivered in full by the Smith Commission and Scotland Act, there is no case for a second independence referendum, and the June 2016 EU Referendum Brexit outcome is binding upon Scotland and all of the UK nations.

The pre-negotiation situation

The first thing to say is that the only negotiation currently planned is the Brexit negotiation between UK under David Davis and the EU, and it can only commence after the UK gives notice of exit from the EU under Article 50 of the Lisbon Treaty. No such notice has yet been given and no date has yet been placed on it being given.

Every approach and contact made by Nicola Sturgeon has therefore been exploratory and consultative in nature, whether to EU officials and members or to Theresa May and the UK Government. Nothing has been agreed – the only commitment is to listen. Most statement made by both side so far represent pre-negotiation posturing, a process known to negotiators as preliminary and tentative anchoring.

Brexit, the EU, the UK and the Scottish Government

Theresa May is absolutely committed to implementing the Brexit choice of the UK electorate in full. She has demonstrated this by her cabinet appointments and by her appointment of David Davis to lead the Brexit negotiations. No decision has been announced on a date to trigger Article 50. When it is triggered, a negotiation will commence that will last for up to two years.

Those negotiations, by definition, are UK-led by the UK state as a member state of the EU. No one else can conduct them and no one other than the Westminster government can decide the negotiating objectives and strategy for the negotiations. No one but the UK can finalise the ultimate deal.

Nicola Sturgeon’s position is that the four component nations of UK must have a key voice and a key role in the Brexit negotiations. Her stated position is that she has multiple mandates to resist the removal of Scotland from EU membership.

Here are some quotes reflecting the ideas and thought behind that position -

HERALD quotes sources close to FM "..there is no willingness within the SNP to barter with the rights guaranteed by full EU membership"

Michael Settle HERALD “"Would something short of full EU membership be acceptable to the SNP?"

HERALD "Theresa May has offered Nicola Sturgeon a major role in talks over quitting the EU in a move to bind the FM to taking a UK-wide approach to Brexit

While the Foreign Secretary [Philip Hammond] said he would consult the devolved nations, SNP MPs said the UK government must respect and recognise Scotland and its vote to 'remain'.

Voters in all of Scotland’s 32 council areas and 62% of the population in Scotland overwhelmingly backed staying in the EU.

First Minister Nicola Sturgeon has previously said Scotland’s decision must be respected, not just noted, and has vowed to protect Scotland’s standing in the EU.

Owen Thompson MP, who raised the issue in the chamber today said:
“Much like the Brexiteer’s, the UK governments plan is lacking any detail or direction. At a time of heightened uncertainty the government must clarify what official role the Scottish government and other devolved governments will play in formalising Brexit.

“With Scotland overwhelmingly voting to remain within the EU, it is crucial that the Scottish government is not just consulted but is at the table where negotiations are ongoing to ensure the decision of the people of Scotland is heard.”

Stephen Gethins, the SNP’s Europe spokesperson, commented:
“The outgoing Prime Minister took us into a situation that threatens to see Scotland being taken out of the EU against its will. Scotland must therefore be at the top table when the UK government meets to discuss formalising its exit from the EU.

What Nicola Sturgeon wants is therefore clear – she wants Scotland “be at the top table when the UK government meets to discuss formalising its exit from the EU.

That seems to mean at the strategy formation stage, before Article 50 is triggered and before a face-to-face meeting with EU to negotiate.

Moreover, the SNP has also said

..the UK government must respect and recognise Scotland and its vote to 'remain'.

First Minister Nicola Sturgeon has previously said Scotland’s decision must be respected, not just noted, and has vowed to protect Scotland’s standing in the EU.

The only interpretation I can put on “respect and recognise” and “must be respected, not just noted” is that UK will make an attempt to limit the application of Brexit by including negotiating objective that provide for  different outcomes for Scotland than those being pursued for rUK, which may be defined as England, Wales and Northern Ireland, unless either Wales and Northern Ireland demand exclusions similar to Scotland’s, individually or in concert with Scotland, in which case rUK would be England only.

Stephen Gethins went on to say – in an official SNP press release, and therefore speaking for the FM and Scottish Government – that

The new Prime Minister must turn her words into action and show and ensure that the voices across the UK are included in these negotiations and which candidates, if any, from Scotland are being considered to be part of negotiating team. It would be extremely difficult for the new PM exclude Scotland from such negotiations.”

This is an explicit demand to include Scotland, not just in the pre-negotiation strategy formation but in the face-to-face negotiations with the EU as part of the UK Brexit team under David Davis’s chairmanship and control.

The only thing David Davis is on record as saying so far is

“Constitutional propriety requires us to consult with Scots, Welsh, and N. Irish governments”

A token recognition of “constitutional propriety” and a requirement “to consult” hardly suggests a full role in strategy or the negotiating team, but we must wait and see …

To follow the implications of all of this, it’s necessary to go into a bit more negotiating theory. Bear with me!


A sole negotiator may be either a principal, accountable to no one, acting on their own behalf, or acting on behalf of a principal or principals. A principal is the individual or group that has the key interest in the outcome of a negotiation and has the right to formulate the negotiating objectives and strategy ( or delegate the strategy formation to others) and the right to ratify or reject the final proposed deal, normally called in outline The Heads of Agreement.

Non-political example of principals include managing directors or sole owners of businesses delegating negotiation to a lawyer or legal team, sales directors delegating negotiations to sales managers, senior police officers or relatives delegating negotiations on a kidnapping to a specialist hostage negotiator, trades union members delegating terms and conditions negotiations to shop stewards and/or full-time union officers.

In politics and in government, the ultimate principals are the electorate, but in the normal process of government they have pre-delegated responsibility for the implementation of a range of manifesto commitments at a general election to candidates for political office, granting a mandate to act free of interference for a term of either government or opposition. The electorate, in such circumstances, have few remedies if dissatisfied with the outcome of negotiations undertaken on their behalf by their representative – until the next general election.

Trades union members, as principals operating in a democratic framework, have more immediate control and a greater ability to direct negotiating priorities and reject unsatisfactory deals – at least in theory.

The question of the principal in political negotiations is always a complex and sometimes a fraught one, given the actual and notional multiple accountabilities that exist. The Prime Minister or First Minister as the nominal principal, either conducts negotiations herself as Principal at the table or as Strategic Principal if not at the table. In the Brexit negotiations the UK  negotiations will be conducted by David Davis as lead negotiator, referring back to Theresa May as strategic principal. Nicola, if she secures a seat at the Brexit table at all, cannot be a principal. Her only role, in the most generous interpretation of the role by Theresa May, will be  Team Member for Scotland. (There may also be team members for Wales and Northern Ireland.)

Both Theresa May and Nicola have multiple principals standing behind them – their Parliaments their  Cabinets, their political parties and their electorates. The critical factor is that the UK Prime Minister’s electorate principals also comprises Nicola’s  Scottish electorate and that electorate had no devolved status in the EU Referendum except as part of the UK electorate – with 17 million of them voting for Brexit,  including Scots, Welsh, Irish and English.

For Scotland – or Wales  or Ireland’s – team members to have any influence over the UK Brexit negotiating team, they would have to have a right of veto over any deal that was unacceptable to them. (A vote as members of David Davis’s team would be meaningless without population/electorate weighting, meaning that England inevitably wins any vote.) Wales has effectively no clout in influencing strategy before and during negotiations – they can be consulted, then ignored.

But Scotland and Northern Ireland’s implied or explicit leverage is the threat of rejecting a deal, withdrawing from the negotiations and calling an independence referendum (Scotland) or a reunification referendum (Northern Ireland).


David Davis, as lead negotiator for UK and strategic principal PM Theresa May must structure his Brexit team. Broad options for structuring a negotiating team include forming the at-the-table team and setting up a behind-the-table fact and analysis sub-team.

The at-the-table team will include Davis as  Lead Negotiator, probably other UK politicians, senior civil servants and maybe external experts in law who will be the front-end of their respective specialities in the behind-the-table fact and analysis sub-team.

 Exactly how the Scottish – or the Welsh and N.I. one  representative can fit into team structures, indeed whether they can be at the table at all raises very difficult questions for Theresa May and David Davis.

A negotiating team is not a debating forum when face-to-face with the opposing team –any debate is – and must be – confined to the objective setting and strategic analysis phase: Debate during negotiations can only be conducted by means of recess or ‘caucus’ as American negotiators tend to call it – strategic or tactical withdrawal from the table for private deliberations.

There are formidable and even perhaps insurmountable problems at every stage for Theresa May and David Davis if they decide to include Nicola Sturgeon (and her Scottish team, if she wants one) int0 the pre-negotiation phase or the negotiations, given the Scottish Government and the First Minister’s triple mandates and stated objectives for Scotland. At the pre-negotiation stages, the process could swiftly deadlock over Brexit objective setting, strategy and respective roles. Theresa May  could not be permit such a deadlock to hold up the UK’s commencement of face-to-face negotiation.

The EU teams’s knowledge of the complexities already faced by Theresa May with the devolved nations already weakens the UK’s united front and bargaining leverage: evidence of delay and dissent before negotiations have even commenced would seriously damage it. Equally, it potentially strengthens Nicola’s hand if she genuinely hopes to secure her objectives while remaining in both EU and UK.

Now it can be argued that MEPs of all the nations of UK have intimate knowledge and experience of the infinitely more complex negotiations conducted almost daily by the European Parliament in committees and sub-committees, requiring agreement among 28 member states. Scottish MEPs can make a useful contribution to this. But the Brexit withdrawal has no precedent for either the EU or the UK - there is no single expert European Commission and no single set of rules governing the Brexit team dilemmas.

There is no way the British style of muddle though, expedient pragmatism will easily find a way  through this minefield.  But we must entertain the hope that it can – the alternatives are brutally simple and high risk.


I covered briefly in my last blog how negotiating objectives are prioritised and classified. Let’s look at what might be Nicola’s objectives if she is allowed any role in the development of the Brexit negotiating strategy by David Davis, and how he - and she - might pursue them across the negotiating table with the EU negotiating team.

Nicola has two main strategic options -

1. Present Scotland remaining in EU as a full member nation (but not a state) under a  Brexited UK state as a deal breaker, single element option – i.e. both entry and exit point – with the only flexibility being on the legal formula, mechanics and timing of creating confirming that amended status

2. Present Scotland remaining in EU as a full member nation (but not a state) under a  Brexited UK as her opening objective – her entry point  – but signal maximum flexibility on considering alternative proposals from the EU team on how Scotland’s individual key interests could be protected.

Nicola is compelled by the relative power balance between devolved Scotland and sovereign UK to engage in  pre-negotiation or consultation with Theresa May and David Davis to permit either option to go forward under UK control of the Brexit negotiation.

Her only real leverage on either option is the threat of a second independence referendum – #indyref2.

(By the time this blog appears, discussions and meetings which must have included such elements, implicitly or explicitly, have already taken place – they may even already have concluded and a decision been reached!)

Theresa May is highly likely to totally reject the first option – everything in her character and actions since becoming PM and everything in the character of the Cabinet she has appointed and her Brexit Minister, David Davis, and everything in the strategic implication of accepting such a posture by the First Minister of Scotland at such a time indicates the likelihood of outright rejection. But in politics, especially in such uncharted political waters, any course of action is possible …

The second option contains the possibility of acceptance if – and it’s a big if – the UK Government has the quality of negotiating advice it needs. Politicians rely on diplomacy, and see and down-value negotiation as a subset – a sub-skill – of what they conceive of as the art of diplomacy, especially the much-vaunted Great British variety. (How else to explain the bizarre appointment of Boris Johnson as Foreign Secretary?)

The reason the second option might be acceptable - providing Theresa May can marginalise and near-nullify Nicola’s actual involvement in the mind-bendingly complex two year Brexit negotiations – is because Nicola’s influence can be bled away over time, in sub-committees and by dangling alluring minor concessions on elements of Scotland priorities, and in the process, bleed away any enthusiasm or energy in a new YES campaign. There would also be the hope that political and economic factors might shift the political balance towards rejection of independence.


I had hoped to be completely objective in my negotiating analysis, but of course I can’t be. There’s an old Chinese(?) proverb that the fish is the last to know water, that is to say that we can never perceive accurately or be totally objective about something we are totally immersed in. That’s why politics is never objective, the civil service is never objective, the Treasury is never objective, the Law is never objective - it’s why the social sciences are never objective in the way the physical sciences can be. It’s because we are part of what we study – we study ourselves.(Original source of this last para - ideas in 2015 book Money by Felix Martin - Bodley Head)

As Rabbie said Oh wad some po’oer the giftie gie us – to see oursels as ithers see us …