The Scottish Government now has a very substantial say in the recruitment of senior civil servants and on almost all devolved policy issues; the ‘chain of command’ ends in Scotland. Even more importantly, it is now the case that most of the civil service staff working in Scotland have their HR and other employment functions managed in Scotland – the issuing of contracts of
employment and so on is mainly handled here (though this is not the case for senior staff).
During the three-year transition process it has already been proposed
that the civil service should operate ‘as is’, splitting its work between devolved functions (almost all being carried out in Scotland) and reserved functions (the vast majority of which are carried out outside Scotland).
While this might throw up some potential conflicts of interest (where one part of the civil service knows that decisions now might influence the post-separation environment and so have an incentive to do not what is in the best interests of all but in the best interests of one side or another), two means of resolving these have been proposed above (a transition council
overseeing any disputes and the setting of a pre-referendum date which
would be accepted as the ‘status quo ante’ such that changes made after
that date are not the basis from which negotiations take place). The bigger solution, however, is to set up the National Commission and separate the
‘state-building’ work from the ‘continuity government’ work.
However, the civil service will need to prepare for an eventual ‘split’.
Any remaining cross-border chains of command and lines of reporting must be broken and reestablished as ending in Scotland (and visa versa for the rUK). For existing civil servants working on devolved issues in Scotland this ought to be a fairly frictionless process – they will be working to virtually the same contracts with exactly the same terms and conditions and in the majority of cases those will be issued by the same HR department as at
present. For civil servants living and working in Scotland on reserved issues, the position is different. It is almost certainly the case that the rUK will wish to ‘repatriate’ those functions to the rUK. Employment legislation means that any of those employees who wish to emigrate to rUK and continue in
the exact same job would have a legal right to do so. But presumably most won’t (when HMRC moved jobs from Dundee to Edinburgh, not a single
member of staff applied for a transfer...).
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But it is important to understand that the same process will be
happening in the other direction – and that ‘inward flow’ of civil service jobs will be substantially bigger than the ‘outward flow’. In fact, it is likely that as many as 20,000 additional civil service jobs will be required in Scotland.
These are all jobs that Scotland is currently already paying for because they are providing essential services for Scotland – but those services are being delivered from elsewhere in the UK and so that’s where the jobs
are. Therefore any Scottish-based civil servant working on a reserved issue who does not want to relocate to England or Wales should be guaranteed a replacement job, on the same or better terms and conditions as their current employment and, if they wish, in a policy or service area as close as possible to their existing role. This will involve some HR and contractual changes, but as these will mainly be like-for-like the process should not be excessively onerous.
It is then important to understand that the employment law conditions
(known as TUPE) apply in the other direction (Scotland should of course be continuing and strengthening the UK’s currently insufficient employment
protection laws). This means that any rUK-based civil servant whose job
is moving to Scotland would have the right to move with the job. This
could either be ex-pat Scots wishing to return or potentially English, Welsh or Northern Irish residents who are simply attracted to Scotland as an
independent country and wish to try moving here. In either case, this inflow of skilled people in good and stable jobs is very much to be celebrated. Every one of them will live and work in Scotland, pay their taxes here, raise their families here. They will be a great asset to the new Scottish nation.
The remaining new civil service jobs (of which there will be many
thousands) are simply new jobs in Scotland and would need to be recruited through the normal processes. As these involve no transfer of contracts or change of terms and conditions or location of work, these are simply routine recruitment processes, complicated only by scale. Having to fill thousands of skilled jobs which impose no additional cost on the public purse is a pleasant task to have.
These new posts would be to fill a number of new services and
government departments – from a replacement for the Department of Work
and Pensions to a new Scottish Treasury. The rough list of the new departments or agencies which would need to be created was covered in the preceding
chapter on IT systems. It includes new departments to cover new policy
responsibilities (social security, employment law, treasury, macroeconomic policy, foreign affairs, defence), expanded departments to absorb functions which are currently split between Holyrood and Westminster (such as
transport, policing and energy) and agencies or regulatory bodies which need to be created or expanded (a National Statistics Agency, a media regulator, a data protection regulator). Some of these have been covered already in 90
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this book, others shall be considered under specific policy headings such as energy and national security.
However, there is an important point to make here; there is a very big
difference between setting up these institutions and running them. There are many, many foreign policy stances which Scotland might wish to choose, dozens of approaches to economic policy, giant changes possible in social security provision. But these are all decisions for a democratic government and parliament in a properly-functioning Scottish nation state. The process of setting up the capacity later to be able to take these decisions is much more straightforward and involves basically three processes (other than in a small number of cases to be considered separately which require major capital
or infrastructure – perhaps most notably defence). The first process is to create a governance structure for the new functions, which means creating a Scottish Civil Service to manage and a Scottish Parliament capable of
scrutinising (both covered in this chapter). The second is to ensure that the basic operating infrastructure is in place, which in the modern world mainly means getting the IT systems right and in place (covered in the previous chapter). Finally, it involves recruiting good and talented people to work in these new roles (which was discussed in the chapter on talent-hunting above).
And that’s all that is required to get these basic functions in place.
The bulk of the responsibility lies between the National Commission (which would oversee the IT developments and support high-level personnel
recruitment) and the emerging Scottish civil service (which would project manage the establishment of the new departments and undertake the bulk
of recruitment).
There is one remaining area of what would be considered the
democratic institutions of a nation state to consider and that is the legal system. Scotland’s most senior court and main domestic court of appeal is the Court of Session. The extent to which this was superseded by the UK’s Supreme Court remains a contentious issue, and whether Scotland would
require to set up any form of ‘supreme court’ or whether the Court of Session can take that role is not an issue that must be resolved for independence day
– particularly given that both the UK’s and Scotland’s exact relationship with the European Union’s justice system will not be known. These are therefore decisions that can be taken after independence.
In the last independence referendum much political play was made
of all the UK civil service jobs that would go, or about how complicated it would be to set up all these new departments. In fact, in the list of tasks that Scotland will have to undertake to become independent, setting up new government is not a difficult one at all.
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Scotland’s national security is something that must be both taken seriously and considered proportionately. Scotland will undoubtedly face threats to its national security as an independent country and it must be well prepared to meet and deal with those threats. But at the same time, the nature of those threats is changing. For an independent Scotland, they would not be exactly the same threats as the UK (which has an interventionist foreign policy, has engaged militarily in a wide range of countries and has defined the interests of corporations as being synonymous with national security). And of course Scotland would not require to be the location for all of the UK’s nuclear fire-power and, therefore, one of the principal European military targets.
An independent Scotland must balance the need to be seen to be capable
militarily to defend itself while also recognising that the much more likely threats will come from other sources – and to be ready for those as well.
It is therefore helpful to think about the threats that Scotland would
face. They fall into five categories; organised crime, cybercrime, terrorism, espionage and military threats. Of these, the least likely to pose a threat in the foreseeable future is military attacks on Scotland’s territory from another state (traditional war). The much more pressing threats are from non-state actors – terrorism, organised crime and cybercrime – and these are increasingly transnational in nature. They pose a persistent threat of social and economic harm to Scottish citizens and institutions and must be taken seriously. The issue of espionage by another state actor has become a strong focus among certain western governments, though in form these
appear to be much more like cybercrime than more traditional in-country
activities. We must prepare for all of these threats.
However, a Scottish Defence and Security strategy must also consider
how geopolitical shifts and other trends can cause the threat environment to change, sometimes dramatically and with little warning. It is a common human bias to assume that what we have now will be what we have in future.
A multitude of present-day trends including resource depletion, climate
change and the resurgence of the far-right could culminate in a future threat 92
environment markedly different from the relatively benign circumstances Scotland finds itself in just now. Long-term and contingency planning must therefore inform the capability requirements emerging from a defence and security strategy alongside consideration of the current threat environment.
What is being explored here is not all the issues that relate to a long-
term security policy but rather what preparations are necessary to build the infrastructure capable of enacting one over the three-year transition period to independence. However it is difficult to consider this without thinking about what kind of security strategy that initial infrastructure will have to deliver.
The following are five considerations. National security must be seen as a broad-based issue, to include issues such as human security, environmental security and economic security. If one of these areas creates insecurity, it affects the others.
While there are differences between systemic threats (such as Scotland’s exposure to economic or environmental risks) and malicious threats there are often connections between the two which require a ‘joined-up’ response across multiple policy areas. For example, the government of an independent Scotland would need to achieve policy coherence through its environmental, education and foreign policies to help tackle the root causes of instability and violence while retaining the necessary law enforcement and military
capabilities to respond to threats from malicious actors.
As a small nation, Scottish national security would depend on forming
strong relationships with like-minded countries which share similar strategic interests and face common threats to their security. Scotland’s geographic position, surrounded by benign democratic countries, is arguably its
greatest strategic asset, providing it with strategic distance from more unstable regions of the world and more aggressive foreign powers. Good
relations with regional neighbours would therefore be a vital cornerstone of Scottish foreign policy, as would some form of engagement with existing international security structures - given the transnational nature of most modern threats and the role of intelligence-sharing in countering them it would be detrimental to Scottish national security to avoid such engagement.
This means ‘pulling our weight’ in a number of ways including our
contribution to foreign aid, diplomacy, trade, military and law enforcement efforts. We would be expected to have particularly close defence and
security ties with our closest neighbours – the UK (but in a non-nuclear context), Republic of Ireland, Norway and Denmark. So Scotland would
want to integrate quickly, but this in itself has substantial consequences because different levels of integration would involve substantial restrictions on Scotland’s ability to make its own policy choice. In particular the EU
and NATO provide collaborative structures but come with strong policy
implications. This means there will need to be a proper future democratic debate on these issues. As a first step Scotland should pursue associate 93
membership in these organisations such as joining the NATO Partnership
for Peace (PfP) program (like Ireland, Finland and Sweden) or the European Free Trade Association (like Norway and Switzerland), before considering full membership. This would allow for a more flexible foreign policy while allowing integration in specific areas of mutual interest.
We need to think about resilience – not only how to stop bad things
happening but how to respond if they do. It is impossible to predict, identify and intercept every possible threat and focusing disproportionately on
security can have very negative effects on society such as extensive curbs on civil liberties. Acknowledging that some threats will slip through the net, we also need to embed ‘resilience’ into the fabric of Scottish society to improve the ability to recover from incidents such as a natural disaster, cyber-attack or terrorist bombing. Resilience can also mean Scottish communities and
institutions that are better at resisting the effects of events that can’t be easily or effectively countered through law enforcement or military measures. This can include global economic shocks, attempts at coercion by a state or non-state actor and campaigns of misinformation and extremist propaganda.
But we also need a law enforcement focus. Given the criminal nature
of the most common malicious threats to Scottish national security it would be reasonable to assume that law enforcement and intelligence agencies
would take priority over the military in a defence and security strategy. That is not to say that the military would take on a lesser role in national security, simply that capability development and associated expenditure should
acknowledge the importance of meeting immediate requirements, such
as preventing serious organised crime and terrorism from finding a ‘safe haven’ in Scotland, before addressing threats that could potentially emerge over the longer term.
Finally, while Scotland currently faces no territorial threat from another state there are no guarantees that geopolitical shifts could not result in such a threat emerging in the long term. The threat landscape is fluid and a strategy to protect Scottish national security must therefore be flexible and capable of scaling up or down depending on the prevailing or predicted strategic circumstances. This requires embracing a strategy which maintains capabilities at different levels of readiness or in a state from which they can be achieved if required. For example, Scotland could retain small cores of military capability which would have utility in a low probability scenario such as a major conflict in the high north region. Given that such a scenario would likely be preceded by a period of heightened strategic tension,
Scotland would be better prepared rapidly to build capabilities than it would be able to if starting from scratch.
The next immediate issue to think about is establishing a security and
intelligence agency. Scotland should create a single integrated ‘all-source’
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information in support of law enforcement, national security and foreign policy objectives. The Scottish Security and Intelligence Agency (SSIA) would be largely modelled on the Danish Politiets Efterretningstjeneste (PET), in that it would form a part of the national police service, but would be responsible for both domestic and foreign intelligence operations. The SSIA would be based at the Scottish Crime Campus in Gartcosh, with a satellite office in Edinburgh to advise policymakers and liaison offices in police divisions and Scottish embassies overseas. The SSIA would work closely with law enforcement agencies, the Scottish Defence Forces and the intelligence services of allied countries. In support of its objectives and in accordance with the law, the SSIA would be capable of collecting and utilising intelligence from a number of sources including: Open Source Intelligence (OSINT),
Human Intelligence (HUMINT), Signals Intelligence (SIGINT), Measurement
and Signature Intelligence (MASINT), Imagery Intelligence (IMINT) and
Financial Intelligence (FININT).
While the vast majority of intelligence would be gathered from overt
sources or government databases, the nature of the SSIA’s work will involve the need to carry out covert surveillance and intelligence collection through the use of lawful interception capabilities (and it is worth noting that Scotland would not be able to define ‘lawful’ in isolation). There are a range of powers the SSIA would, with a suitable warrant, be able to wield. It should be able to access communications data from communications service providers
(CSPs) in relation to a specific target or in bulk if required to identify target communications (a necessary requirement due to the nature of modern
packet-switched communications networks).
It would also be able to access content data from CSPs in relation to
a specific target. It could engage in equipment interference (for example computer hacking) on a target device. It could access confidential
government databases in relation to a specific target (such as medical
records). It could deploy surveillance teams to observe and follow targets or utilise covert monitoring equipment. And it could deploy covert human intelligence sources (CHIS) to infiltrate target networks or gather intelligence on targets. While these are intrusive capabilities they are essential in the task of detecting, disrupting and dismantling criminal networks which hide amongst the civilian population and operate in a clandestine manner. Other law enforcement agencies would require similar capabilities to do their work effectively.
In order to ensure these capabilities are used lawfully and proportionately a robust series of safeguards and oversight mechanisms would be put in
place. This would include having judicial commissioners to review practices, procedures and conduct, requirements for a minister of state and a senior judicial official to sign off on an interception warrant, the need for approval for a warrant application from the SSIA’s internal legal advisors and approval for 95
a warrant application from a senior intelligence officer. There would also be a code of conduct on data collection, handling and retention, a parliamentary committee to scrutinise the activities, expenditure and conduct of the SSIA and an intelligence tribunal to make judgements in cases where complaints have been raised regarding the use of interception capabilities.
The SSIA would require new legislation to give it a statutory basis and
replace previous acts of the UK Parliament such as the Security Service Act 1989, Intelligence Services Act 1994, Regulation of Investigatory Powers Act 2000 and Investigatory Powers Act 2016. This legislation should detail the extent of lawful interception capabilities, the conditions under which they can be used and the oversight mechanisms in place to prevent abuse of
these capabilities. This is legislation which should be produced by the civil service during the transition period such that it can be scrutinised (both by parliament and the wider public) and passed either in time for independence day or shortly thereafter. This should not slow down the steps necessary to set up an SSIA (which should be led by the National Commission in close
cooperation with Police Scotland). Given the transnational nature of modern threats the SSIA would need to work closely with regional and global partners.
Membership in bilateral and multilateral intelligence-sharing agreements would therefore be essential in providing access to the information that Scotland would need to guarantee its own security. However strict safeguards would be implemented to protect the privacy of Scottish citizens.
The SSIA would also house the National Cyber Security Agency (NCSA)
which would be tasked with protecting Scottish networks from cyberthreats.
The NCSA would work across public and private sectors to build resilience to cybercrime, promote best practice and audit cybersecurity measures. It is difficult to emphasise enough how important it is for Scotland to develop substantial capacity on cyber security. While this cannot be addressed by any one country alone and international cooperation is essential it combatting cybercrime, cyberterrorism and state-sanctioned cyber-espionage, this does not meant that a robust ability to tackle these issues domestically is not equally important. Scotland has substantial expertise on IT issues across its colleges and universities and has many skilled graduates capable of building up such a capacity. This is something the National Commission should see as a substantial priority.
Scotland would then need its own national armed forces, and it would
need all the service branches including army, navy and airforce. This
would be known as the Scottish Defence Forces and it would be tasked
with supporting civil agencies, defending Scotland against aggression
and contributing to international security. Given Scotland’s geostrategic position, the Scottish Defence Forces would be predominantly focused on
air and maritime capabilities, with a comparatively smaller land capability.
The Scottish Defence Forces would comprise a mix of regular and reserve
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personnel. Recruitment would be open to any Scottish citizen over the
age of 18 who is able to pass the relevant physical and mental aptitude
criteria. The Scottish Defence Forces would be overseen by a government
department called Defence Scotland, the equivalent of the UK’s Ministry
of Defence. Defence Scotland would work very closely with foreign affairs and international aid departments (if international aid was a separate
department) to ensure policy coherence.
There should be substantial consideration given to the constitutional
constraints that would be placed on the Scottish Defence Forces and in
particular on the deployment of military forces domestically or overseas.
This should include measures often referred to as a ‘triple-lock’. In a triple-lock Scottish Armed Forces could only be deployed if there is a clear mandate under international law. Examples would include the right to defend oneself in response to aggression, responding to a request from another national government for military assistance against a threat and supporting a UN
Security Council resolution or UN General Assembly ‘Uniting for Peace’
resolution.
The next ‘lock’ is that even when a clear mandate exists under
international law, the Scottish Government, in concert with the commanders of the Scottish Armed Forces, must be able to articulate a strategy for how the use of military forces can support a political resolution or prevent an imminent humanitarian catastrophe. Examples might include the
deployment of forces to separate warring parties, disarm illegal militias or to protect refugee camps and humanitarian convoys. The Scottish Government
can then make a recommendation for military forces to be deployed.
Finally, there would need to be a vote in the Scottish Parliament. Once a recommendation of military deployment has been made by the Scottish
Government it would require democratic approval in order to take effect.
Providing that the nature of the crisis did not require an immediate decision, such a vote would be subject to extensive prior debate and deliberation.
This triple-lock would be supplemented by additional safeguards
including a Parliamentary Defence Committee tasked with scrutinising the conduct and expenditure of the Scottish Armed Forces and Defence Scotland, an independent military justice system to ensure discipline, the legality of orders and appropriate conduct for members of the armed forces, ratification of the Rome Statute making the crime of aggression an indictable offence under Scottish law and prohibitions on the deployment, use or stockpiling of weapons of mass destruction as well as the use of Scottish territory for the transit or storage of such weapons. It is to be expected that there would be a strong political consensus in Scotland for a constitutional clause requiring the Scottish state to sign the UN Treaties prohibiting Biological, Chemical and Nuclear weapons and any other weapons of indiscriminate mass killing.
The 2017 Treaty for the Prohibition of Nuclear Weapons provides an
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international framework for a state which at the point of signature has another state’s nuclear weapons on its territory. Within a set period of joining, the state has to submit a time plan for the removal of the weapons, immediately making them non-operational and then removing them entirely from their
territory under the supervision of the International Atomic Energy Agency.
Together these safeguards would constrain the ability of the Scottish military to be used for national or economic aggrandisement and ensure that they
are only deployed when appropriate and necessary. Other nations have even more stringent constitutional limits on their military activity. For example, in Mexico it is unconstitutional for its armed forces to operate outside its borders and Ireland is constitutionally neutral. Clearly these are big issues and may not have anything like majority support in Scotland, but the process of establishing a constitution should include serious consideration of what we want our military for.
The Scottish Army would be tasked with deploying land-based
capabilities to support responses to domestic crises and provide a
contribution to regional and international security. It would be built around a number of light and mechanised infantry battalions with supporting artillery, reconnaissance, signals, medical, engineering and logistics capabilities.
These battalions would operate on a ‘roulement cycle’, a military term
where for each active battalion there is one preparing to take over and one which is reconstituting after being active. This ensures a continuous ability to provide a battlegroup-sized contribution to international security efforts such as peacekeeping or humanitarian operations. The Scottish Army would have a comparatively larger set of specialist capabilities relative to the size of its infantry. This would include engineering, logistics