Breach of Promise or Breach of Contract

Let’s consider a question I was asked recently, and to be honest, it sounded like it was a bit pointless at first blush.

The question was simple, and I’m reminding you I’m not a lawyer, but I was intrigued. The individual simply asked if Mssrs. Cameron, Clegg, Miliband and possibly Brown and/or their parties could be sued for breach of promise over ‘The Vow’ as it was published in the Daily Record in the dying days of the Referendum Campaign.

There was a second aspect to this – if it is possible to do it, did I think it could be crowd-funded?

Honestly, I’ve no idea, was my immediate and rather doubtful response, but it was worth investigating anyway. You see, my recollection of that ‘Vow’ at the time was that it could be read in multiple ways, have a dozen interpretations, and there were really no ‘cast iron guarantees’ built into it. It was, essentially, designed to take the switherer and give them a justification for not doing what they were then believing; that it might be right to vote ‘Yes’.

Interestingly, in spite of what others may say, do or argue every indication I’m discovering is that whatever impact the ‘Vow’ had on the referendum is irrelevant now. Many believe it was the deciding factor. I agree it had a major impact, so I was surprised, none of that is actually relevant. The Union parties seem to think it is though, that caused me to keep digging – what’re they trying to hide?

The starting point is simple; what was actually promised, or less solidly, what would be reasonable to construe was promised. The fact that their names were signed to it, and they de-facto didn’t deny or refute any of it and in actuality did publicly (as the legal’s state) ‘aver and affirm’ if not specifically using those words, implies a promise or contract, in which they could now potentially be in breach.

If they did enter into such a contract, then it’d have been one with the people of Scotland, or even more specifically, those amongst us that altered our vote from ‘Yes’ to ‘No’ based upon that ‘Vow’ ‘Contract’ or ‘Promise’, but it’s most likely that a suit brought by specific individuals lodged and worded something as the ‘people of Scotland’ might suffice.

The second aspect was ‘were they protected by parliamentary privilege’, essentially meaning they can’t be sued. Categorically, the answer here is no. The announcement, undertaking or feel-good fuzzy, call it what you want to, was made by means of a daily tabloid “news”-paper.

So – was there anything specific enough to constitute a contract or promise?

In looking through the Record’s page on the day in question, reading it carefully, helped by someone who used to help actually make laws in the United States (so note the qualifier – it’s not Scot’s advice, but I’m told that although Contract and Promissory law has nuances, it’s overall pretty consistent) what I heard fell out as follows:

1. It stated the three main party leaders had all signed up to the incorporated statements – they’re therefore all on the hook for anything that followed, as long as the specifics could be defined. No specifics, no hook. No ‘No’ vote – it’s all moot anyway.

2. They promised to transfer more powers to Holyrood. That’d have to be in addition to anything that went before. If they give Holyrood the rights over its janitorial budget, and it hadn’t had them before then the promise is fulfilled. It still might be open to argument on ‘reasonable expectation’ grounds, but a near certain win has dropped into rather dubious ‘coin flip’ territory.

3. ‘No one, other than the Scottish Parliament can cut vital public services such as the NHS’ – This is where it might get interesting, because they (Westminster) hold the purse strings, and there was no guarantee they’d not cut funding thereby forcing the Scottish Government to cut services. On the surface it’s a loss here, especially as they already told us we’d be getting more budget cuts, a loss except for the fact that it could be argued it builds on the first point as to right of expectation.

4. The powers were then guaranteed to be ‘extensive’. Still, they could give you the right to pick your nose in addition to those ‘janitorial services’, then they’d argue that was ‘extensive’ – it’s coin flip territory once more, except it again builds upon the umbrella impression of realistic expectation.

5. They agreed that the Scottish Parliament is ‘Permanent’, unless they try to abolish it, there’s no breach of promise there. Even failure to enshrine it constitutionally doesn’t breach that promise – effectively it’s been so declared. Once more it builds on that expectation thing.

6. They promised to improve government in the UK in the years ahead. This might be a ‘gotcha’ with the Alistair Carmichael thing. Arguably, not requiring or requesting resignation shows intent to abandon this pledge. It’s still too early to make a definitive point though. Getting rid of corrupt members could be claimed as showing good intent, avoiding the subject, not so much. Might be a solid argument in a decade, not today. Again it builds on the ‘right of expectation’ thing.

In short, with one exception, this was effectively a media publicity stunt, and that very important exception is the right of expectation.

It was explained to me like this, that if I buy a car, and I’m promised it will be red, three years old, with less than thirty thousand miles and in excellent condition both bodily and mechanically, with the reasonable anticipation of many thousands of happy motoring miles in front of me, then that’s what I should get.

If that car is delivered as described above, but I subsequently discover it’s had a governor fitted, or been ‘wheel clamped’ then the letter of the contract has absolutely been adhered to, however the right of expectation has been thoroughly trashed. The goods are not fit for purpose as one had been led to believe.

This falls under the fact that in law, and Scot’s law too, it isn’t actually necessary to define every detail, but broad expectations are enough. The folk simply need to be competent. Working through the result of the referendum to the landslide in May for the SNP, it’s almost an inescapable argument that many amongst Scotland’s electorate believed one thing, acted in one way (No Vote) and now believe they’ve been sold what would be commonly referred to as ‘a Lemon’, oddly enough, there’s laws against that too!

It would appear that in drafting this vow Cameron, Clegg, Miliband and Brown had fairly good contractual advice, however it would appear they used English legal advice. However the offer was made through the medium of a Scottish Red-Top to the Scots electorate in such a way it could only be accepted in Scotland. Therefore Scots Law and NOT English Law would seem to apply and be the potential initiator of many problems for the “gentlemen” involved.

Effectively, using that massive vote swing as confirmation, it can be argued that a contract was offered, accepted and viewed as breached. In addition, that there was a poll showing a 51/49 vote split in favour of the ‘Yes’ vote with the ‘Yes’ vote steadily gaining momentum until that point at which the ‘Vow’ was made resulting a net six percent reduction in the ‘Yes’ ballot and a final 45/55 poll in favour of ‘No’ also speaks to the efficacy of the offer.

All aspects of this particular case say that, effectively, Scotland’s electorate was sold a wheel-clamped car.

On that, there is without doubt a case.

All that would remain to be answered would be if an unbiased judge heard the case, and on which side of the coin the result would finally land. Only the court itself could determine if it was a winning case.

As to other promises made during this time-frame, they could be viewed as ‘adjunct offers’ especially if not refuted in word or deed by the parties concerned before the vote took place.

One thing is certain, even if the case didn’t make it to court, even a moderately successful attempt at fundraising towards getting it there would prove intensely embarrassing to all the potential respondents.

Should the suit prove successful, and if properly worded, it could force anything from a re-run of the poll itself to utter upheaval in the constitution of the United Kingdom, for in an extreme case it’s entirely possible that a judge could (not would, could) order the establishment of a federalized governmental system.

Where it would go from there would be…..interesting.

Union Jam on sale 2015 - at a supermarket near you!

David Cameron visited Alex Salmond in Edinburgh this week; pro-union national media trumpeted a softening of the rhetoric, heralded by a promise of more powers if Scotland votes down her natural right to self determination.

This is the “Jam Tomorrow” promise of Alex Douglas Home in 1979. Just Jam? Scotland even had the toast hidden from her for umpteen years and more by one Westminster administration after another since the discovery of North Sea Oil .

The first question this proposal for more powers sparks is “why should we believe you this time?” The answer, just as clearly and from David Cameron’s own mouth was, “You shouldn’t”.

There was no other interpretation because Cameron didn’t actually promise anything; he said “consider”. We might as well ask the local bank if they’d consider putting a few million extra in that Super Saver Account we all have. You know, just so it might actually resemble the name. The bank will also consider the deposit you’re asking for, most likely for about a nano-second before kicking you out the front door. The bank pondered your request and pondered it well.

Nothing tells us Cameron’s period of contemplation will be any longer, or deeper than the Bank’s. This is because nothing stops him putting his proposals forward now. Let us consider what flavour of jam is on offer, and then we can decide if we like the taste.

It’s not Jam Tomorrow; it’s not even a promise of Jam Tomorrow. It’s a promise of a consideration of a proposal of a little Jam Tomorrow - after we gift him sufficient ingredients, consisting of the keys to our nation, which will supply him enough to ensure we can all eat cake. But then we know where Scotland’s choice ingredients are destined, the same place they already go in large part, to London and the South East.

Let’s consider that David Cameron was to keep his word, turn his considerations over a while and solidify them into promises, and that the promises actually make their way through Westminster’s echoing halls and into the legislative books.

What flavour of Jam might we expect?

The sensible money would be on soor ploom, made somehow without sugar.

We will buy it and we will consume it even as it makes our jowls hollow and our eyes water, our bellies cramp as we head with haste for the commode. We’ll do this because we’ll have no other immediate option. We’ll do this because we will have voluntarily voted away our own recipe book.

It will taste so bad for we’ll be supping knowing it could have been so much better had we not been so insufferably obstinate, stupid and voluntarily blind to uncovering the arguments we will afterwards wish we had not turned a deaf ear to. Arguments that would have made us aware the YES vote was our only option.

We will get Extra Powers, which might become a reality, but it is semantics. We might get the power to set our own speed limits or regulate air-guns. These will be our Extra Powers. However, expect to lose control over University funding, over our NHS and over much of our budget. But we will still have Extra Powers.

Also expect Holyrood to be completely neutered in some peculiar fashion, and the media will spin this in an effort to make it acceptable to the international audience, while at the ballot box we will be rendered powerless to impact our future, our children’s future or our national destiny. Yet we will still have Extra Powers.

We can expect this because Westminster has had the fright to end all frights, and Westminster does not like frights. Those in power in London have demonstrated time and again they will react ruthlessly to anything that causes them fright. For a recent example, just look at the sentences against the rioters last summer. With the Olympics approaching riots gave Westminster a fright and Westminster struck back - hard.

We can expect our welfare system, our community values and national sense of compassion to be obliterated. Social programs stand to be decimated as each cut in England transfers to a respective cut in Scotland. This is allowing that even Barnett survives the reprisals to come.

Our soor ploom jam will be on the shelf at Tesco’s, and as we put it out to be scanned at the checkout we might find ourselves looking into our mothers’ eyes, eyes that can hardly remain open after her last bout of chemotherapy. Mother may not even be able to stand properly, or may be incontinent, but she’ll be on that checkout or lose her right to sustenance - unless we can prove she’ll really be dead in a few weeks. It won’t matter that these inhumane policies will be what kills her – she’ll be scanning our soor ploom jam.

Before you get to the checkout you might walk past your child stocking shelves. She’s got a degree, she worked hard for it, but now she’s forced to work for her benefits because Westminster policies which decimated four nations to protect a city, means there are no jobs. You might pass her in the aisle knowing that your spouse, the only one still working in your family, is paying her wages through their taxes, because Tesco aren’t. Tesco are just giving her the bus fare to get to work.

Part of the recipe for tomorrows soor ploom jam appears to be making certain that big business makes more money as we subsidise them through our benefits system. It is Westminster passing these inhumane laws; it is often the result of these businesses lobbying London.

The recipe also seems to include protections for the City, the bankers, bonus schemes and more light touch regulation. It also includes isolation in Europe, more wage freezes, austerity, lower living standards, higher fuel bills and the weakest in our society being targeted and vilified. This soor ploom jam which London’s offering has a recipe most sensible folk might want to steer clear of. 

In 2014 it appears there’s an alternative on offer, if we like Westminster’s soor ploom jam we can fire up the toaster. However, if we think our own recipe has even a chance of being a wee bit tastier we should dig through our ingredients and perhaps throw a few raspberries at London for its bigger jar.

Then, we will get busy making something fit for a real nation to enjoy.