11/11/2011 05:24 GMT | Updated 07/01/2012 05:12 GMT

Ius Naturale, Independence and Negotiation

I made my living for many years as a negotiator, in employee relations, then as a consultant and trainer in negotiation and negotiating skills. Negotiation is a very ancient art, and when it takes place between nations, it is called diplomacy. The Romans, who you will remember once had an empire and then lost it, almost never negotiated - they relied on brute force or law to resolve disputes. In law, they made a major contribution to civilisation, and they saw the law as falling into three type ius civile, applicable to Roman citizens, ius gentium, between citizens and foreigners and ius naturale, what we tend to call international human rights - the natural law.

The latter applied to all races and in all circumstances, and in particular it emphasised that, when interpreting treaties under the law, regard must be taken of equity and reason, not just the letter of the treaty - what is sometime called the spirit of the law.

What brought all this to mind? Well, when I was a young negotiator in American industry, the negotiating literature was not as plentiful as it later became, and I was reliant on American guidelines from very senior negotiators who had cut their teeth in the hard school of American industry and specifically the automobile industry. (One of my senior American bosses was a veteran of the Battle of the Overpass in 1937, when the Ford Motor Company security goons clashed with union organisers, where extreme violence was used in an industrial dispute. One of the two union organisers - the other was Walter Reuther - was called Frankensteen!)

My last boss in the old Goodyear plant in Glasgow had been a former union official, and often spoke of carrying a turkey gun - a kind of blunderbuss - inside his long coat when picketing the factories during what he called 'difficult' strikes. The Americans were wedded firmly to the piecework system of payment by results, which worked well enough in the context of American business unionism, but eventually proved lethal to the Scottish plant at Garscadden. Piecework gave rise to something called fractional bargaining - haggling over everything - and, while it could be managed, tended to be very destructive. In America, it had co-existed in a kind of dynamic tension with complex contract negotiations, but these were viewed in a very different way in the arcane world of UK industrial relations in the 1960s and 1970s.

But I went beyond this limited adversarial model in my reading, and discovered, in a second hand bookshop, a little book called Diplomacy by Harold Nicolson. As well as being a British diplomat, wee Harold led, shall we say, a colourful life, some of which has been dramatised on television, but whatever his adventures were outside of diplomacy, my interest was in his little book - which I still have - and what it had to say about negotiation. My little reprise above on the Romans and negotiation was prompted by Harold, who is as relevant today as he was when the book was first published in the late 1930s. (It was revised in the 1950s, and of course, the sixty years since have been a little hectic.)

(I later had a long involvement, both in industry and later in consultancy with Professor Gavin Kennedy, who wrote a number of definitive popular works on negotiation. Gavin, who had a thorough distaste for politicians, although he was a Scot Nat, in a discussion with the late Douglas Henderson of the SNP and me on a course, laughed at the idea of politicians negotiating, and he was right, in the main - it should be left to the professional diplomats like Sir Christopher Myer.)

What has all this got to do with a pound of mince?


The SNP win in May 2011 caused a collective outbreak of hysteria and disbelief in the metropolitan media and among unionist politicians. In the case of the Labour Party, this approached what used to be called a nervous breakdown, especially among Scottish labour politicians. It also spawned a torrent of superficial analysis and comment, most of it unbelievably ill-informed, and an outbreak of factoids (I use the word as defined by the man who coined it, Norman Mailer - Something that everybody knows is true except it ain't! ) - that went way beyond the reach of mere suppositories, and now requires urgent surgery.

The backwoodsmen and women of the Tory Party huffed and puffed patronisingly - one eejit in Ian Davidson's little cabal known euphemistically as The Scottish Affairs Committee suggested recently that Scotland withdrawing from the Union was equivalent to a member resigning from a club - shouldn't the other members have a say, old boy? - and the Colonial Governor, Michael Moore demonstrates at regular interval's - last outing today on the Politics Show - that he understands neither Scotland nor the Act of Union, never mind plain English, especially when it is spoken by Alex Salmond, wearily but affably saying for the umpteenth time when the referendum will be, and what is meant by independence and full fiscal autonomy. I understand, our American cousins understand, an intelligent eight-year old would understand, my two Westies, Angus and Dougal, understand, but Michael Moore doesn't. A bad case of earwax, maybe?

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.

The timing of the referendum is in the second half of this Scottish Parliamentary term, and the date is when we're ready, not when you're ready, Michael Moore. But keep pushing and Alex might just give you a nasty surprise. You're bluffing, Michael, and bluffs sometimes get called when the time is right.

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, Michael. 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.

And lastly, if you want to go down in history as a statesman, rather than a pompous young windbag, 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. 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 ...