No Contingency Plan For a "Yes" Vote.

We heard it again last week, it’s been voiced before by MPs, top civil servants and several Lords a Leaping. Interestingly it would seem that only those with a vested interest in the British State appear to care about this. Joe and Jemima public haven’t really had it at the forefront of their concerns, at least in so far as media reports have indicated.

Well, we’re coming down to the wire, only eighteen days to go until the vote, soon it’ll be less than ten, and I’m betting we won’t hear more, much more anyway, about the lack of contingency in case of a yes vote.

You see, it’s a fairly safe bet that Westminster does have a contingency plan; only, they can’t afford for anyone to know about it. The reason that they do not have a contingency plan for such a momentous event, as they’ve acknowledged this referendum as being, can only fall into one of three categories.

Firstly, everyone in London Town is an ostrich, every last one who counts as a professed ‘leader of the British Isles’ is a certifiable idiot with their head stuck firmly in the few remaining sandy bits of the Thames embankments. While it would be comforting in a way to go with this scenario, which gets its credence due to the distinct ignorance and highly dubious decision making that’s come from that region in times past, it’s not really the most probable of options, now is it?

Secondly, it could simply be that we’ve been getting lied to. That the ‘difficulty’ experienced by both sides in disentangling the Union will actually cause minimal upheaval in everyone’s lives, with the possible exclusion of perhaps a few civil servants. Based upon the garbage and lies fed to all and sundry during this debate, by the representatives of the ‘mother of parliaments’, this scenario seems much more likely. It’s sad, but should be considered to be streets ahead of option 1 in the probability stakes. It’s sad because it says we elected a bunch of liars, but they were the best of the group offered to us. Now we’re being asked to perpetuate their employment.

The third option is perhaps the most troublesome. You see, option three means never needing a contingency plan, simply because you know it’ll be pointless, simply wasted energy to divert resources to something which you’re certain you can prevent from happening. I’d give it a weight approaching that of, or perhaps even surpassing, option two.

Option three involves many things. However, many things are what Westminster has shown itself capable of. It used the security branches in 1979 to work against Scotland’s interests, as well as that belated 40% rule and counting the dead. There’ve been other incidents too, like the lawyer Willie McRae, who allegedly committed suicide by shooting himself in the head (twice) then throwing the gun away, this after allegedly uncovering something akin to the McCrone report. There’s the last referendum where we voted for a parliament with tax raising powers only to have those powers so diluted by Westminster as to be effectively useless. Even the latest tranche, scheduled for next year can’t be used without hurting ourselves.

Another aspect that just doesn’t ‘ring’ is the disparity in polling data. That alone should have London in a lather, yet while the ‘unofficial polls’ with often massive sample sizes are consistently showing a landslide for ‘Yes’, the ‘official’ polls continue with ‘No’ by a nose.

Ultimately, if we treat option one with the derision deserved, it is certain that there actually is at least one contingency plan out there; one which will allow for London’s elite to remain in control of Scotland or to cut us loose with absolutely minimal impact. It’s an ‘either/or’, I personally can’t see the possibility for any middle ground here.

Up until recently I’d simply thought that with our separate NHS, legal system, educational system etc that we were just being lied to - again. Perhaps an uncomplicated "Velvet Divorce" is to much to hope for.

Now however I have a very real concern. One that has been generated by recent media releases and events, from Jim Murphy’s ‘egging’ (and let’s face it, the only difference this time is that it wasn’t self applied, although we’ve still to uncover just who directed the egg in his direction. What we do know however is it seems to be primarily the nationalist community with an interest in uncovering the perpetrator). Now, add that to recent inflammatory articles appearing in the media indicating "polling carnage" on the 18th, articles which even went so far as to prompt a response from the Police Scotland on September 1st, and we've got a quickly building scenario.

In its best case, a few ‘nutters’ heckling at a handful of polling stations would be unfortunate but ultimately laughable. On the other hand, in a systemic worst-case scenario anything is possible - from missing ballot boxes to calling the fairness of the vote itself into question. Yes, it’d need to be coordinated on a relatively massive scale, but when you largely ‘own’ the output of the media in such circumstances, can anything really be discounted?

Personally, I hope a lot of things can and will be discounted, although I suspect we’ll be approaching October before they can safely be binned.

There’s only one thing that’s certain, London has used every resource and contingency we know of to ensure a ‘No’. On the other hand, if it’s a ‘Yes’ as those on the ground have solid reason to believe, one can only ask what the contingencies are – and why don’t we know about them?

When there is a ‘Yes’ we can be certain those plans will be dusted off; when there is a ‘Yes’ we can only hope that good sense and democracy prevail.

Is The Treaty of Union Already Dead?

Due to the renewed interest in Scotland's status of existence or not, recently dragged up by Governor General Moore et al, it seems there has been a resurgence in interest in an article I had published in Newsnet Scotland in July of 2011. As I'd never previously included it in the blog, I've decided that perhaps now would be a good time to do just that.

The question I posed at the time was: Is the Treaty of Union Already Dead?

The Treaty of Union 1707, we live every day of our lives with its effects – but should we?

Could we, if we choose, simply denounce it, has that already been done, or have events simply transpired to void it entirely? Are we at liberty, under international law, to simply “walk away’.

For almost all of us it consumes much of our waking time, consciously or otherwise as we struggle to pay the taxes and debts imposed by its after effects. It has done so for generations of Scots.

Our forebears fought and died because of it, through it, in support of it or against it.

Yet under international law It certainly appears void, if not simply revoked. It just seems there’s a distinct lack of willingness to test this by any relevant party.

In view of the above this article specifically does not advocate or focus on a single course of action; although it certainly uncovers several intriguing and interesting potentialities available to us Scots, should we choose. Law is about interpretation, what follows is one very reasonable such interpretation.

Our land and our nation has often been derided, pilloried and a comic joke because of it [this Union], mainly from within.

Even in the halls of power, that corrupt underbelly that we call Westminster, proven so in the courts of our lands, that place which is supposed to uphold our nation and care for it in this Union there is little respect demonstrated for Scotland.

There is an interesting and entertaining aspect to international law, it’s called the Vienna Convention, and it exists in a stratosphere of law that governs international treaties.

This article of law was adopted on May 23rd, 1969. It didn't exist in 1707, but it does claim jurisprudence over almost all international treaty and law since its ratification. And it has very definite retroactive implications.

If it had existed in 1706/1707, there would have been no Union Treaty as we know it. That is irrefutable.

The signatory states to the Vienna Convention agreed that international law and treaty law as defined by it would have jurisdiction over their own national laws. Basically if the UK [and thereby its constituent nations] signed up to it, they agreed to be bound by it.

It can be regarded as entertaining because the signatories to it, including the United Kingdom which ratified it on June 25th 1971, and implemented it on January 27th 1980, on the surface did not appear to fully understand the entire scope of their actions.

The UK and its constitutional law brigade certainly thought it may have covered its bases, yet there is a section or two in the Vienna Convention that indicates it may not have. The language is not categorically unambiguous, but the intent certainly appears clear.

We really should test it. At the very least it would prove interesting. 

Where the Vienna Convention specifically does not remove itself from treaties of a historical nature are when their principles are overtaken by new or ratified principles of recognized international law, or when they have been voided prior to inception and would be regarded as so being by evolving international law (article 64).

This aspect of the Vienna Convention specifically itemizes the following areas as voiding treaty agreements.

Article 49

Fraud

If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.

Article 50

Corruption of a representative of a State

If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.

Article 51

Coercion of a representative of a State

The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.

Article 52

Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

A quick examination into the founding aspects around the Union Treaty is worthwhile – did it significantly contravene articles 49 through 52 of the Vienna Convention. Investigations and perusal of records show there is a relatively simple case to be made for contravention, not just of one the above, but potentially all of the above.

Any single contravention of the above articles would be more than valid enough reason to negate the Treaty of Union since inception.

It would certainly leave us with an entertaining constitutional conundrum.

Interestingly even article 14 of the Treaty of Union itself can be used as verification of corruption. Article 14 stating; “the Equivalent, granted £398,085 and 10 s sterling to Scotland to offset future liability towards the English national debt”. In essence as history records, it was detailed as being subsequently used as a means of compensation [bribery] for investors in the Darien Scheme, and Union supporters.

This sum noted above was only paid after signature. None of the above funds were recorded as being distributed to anyone who opposed the Treaty of Union, nor could they be given to “Scotland’s government” – it no longer existed. They are reported and acknowledged to have been distributed solely amongst those who worked for passage of the Union Treaty.

Direct bribery was also known to be a factor. £20,000 (£240,000 Scots) was dispatched to Scotland for distribution by the Earl of Glasgow. James Douglas, 2nd Duke of Queensberry, the Queen's Commissioner in Parliament, received £12,325, himself.

Now under Article 45

Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty

A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts:

(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or

(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.

It can be clearly seen these do not apply to Scotland – the civil unrest and popular (dis)Unity has been widespread since treaty inception, and, in its most basic form, absent an independent government it was unable to fall into the first category. Without an independent government, Scots could not expressly agree.

So much for the past, this is the present, and it’s within article 45[b] that past meets present. There was an interesting quirk in 1999 when Winnie Ewing made her famous statement.

Certainly Winnie was acting as a government representative – certainly she had full authority to make the address, just as certainly her words have never been officially disputed either by Westminster or Holyrood. Arguably just as certainly she served notice on Westminster that under 45b that Scotland did NOT acquiesce.

The actual words of Winnie Ewing have been widely acclaimed; "The Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened."

Basically and effectively Ms. Ewing served notice on the Westminster government that the treaty of Union was ended.

The Scottish government had re-convened. It went undisputed. Treaties can be terminated by universal, bi-lateral or unilateral acts. They can also be terminated by the fundamental reason d’être of the treaty no longer being valid.

In 1999 a fundamental change took place within the Treaty of Union – there were again two parliaments.

The primary reason for the Union Treaty was to remove the dual parliamentary system. The Scots through their representative declared that their parliament was “re-convened” the English under international law in its most basic interpretation have no right of interference in the internal politics of another country.

Arguably, on 12th of May 1999 Ms. Ewing told our nation “if you want a Union – now go negotiate one” – perhaps that is just what Alex Salmond should do – declare the treaty of Union dead as of a set date [12th May 1999] based upon the facts, and request of the Scottish people the authority to renegotiate a treaty that is fair and reasonable towards Scotland – if such can be achieved. The actual official date of termination, and the end of all obligations under that ancient agreement could be June 24th 2014.

We should therefore invite England to the negotiating table. That would require a separate English parliament however.

Let them decline if they choose. It would also solve that pesky “West Lothian question”.

If the English do come to the negotiating table, and agreements are reached, then let the Scots vote on the new treaty, allowing terms can be arranged that the Scots might accept.

Perhaps we should simply take that “Independence” word right of the table. It is certainly appearing an option. The question then becomes do we devolve our government to Westminster again, and if so, what aspects?

Last but not least, and worthy as a footnote is an interesting Westminster quirk – Westminster now sees itself categorically as England’s parliament and Scotland’s overlord.

It views itself as a UK government of dominion, not of partners. It has demonstrated it would retain dominion.

If Westminster / the UK parliament had any other pretexts these are effectively dismissed by the list of countries with whom it can “do business”, conclude treaties etc.

Scotland is on that list, England is not. Northern Ireland is also on this list, but as Wales was taken by right of conquest it doesn't have to be. Wales is absent. The only discernible reason England would not be on that list is because Westminster views itself as England’s Parliament.

Although the UK Government’s website does list Scotland as a nation with which it can enter and execute treaties, it has none listed for review against our nation. Not the treaty of 1328 (Treaty of Edinburgh-Northampton) recognising our nationhood “for all time coming” or the treaty of 1707 where we entered the Union of Parliaments.

The treaties recognising our borders are also conveniently absent, as is the existence of a treaty where the latest 6,000 miles of seabed was “grabbed by England” in the last decade – meaning under UN rules that act can also be construed as basically illegal – void.