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.

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.

Just what are they afraid of?

The Labour Party, the Liberal Democrats, the Tories in Scotland; what are they afraid of? Watching the Libdems in Westminster snorting at the trough, you would think any one of these so-called representatives of the Scottish people would leap with out-stretched arms at the opportunity at a shot of time in government. And not just a devolved government, but fully matured, grown up, independent government with powers over taxation, spending, foreign policy and the sundry responsibilities that this would entail.

This next step, to my mind, is the logical one to take. Following on from the devolution “experiment”, independence can be the only destination.

While reading another article here: Scottish Socialist Voice, it hit me on the forehead that these enemies from apparent opposite ends of the political spectrum (with the dead-beat Libdems swinging either way to suit whatever side is “in”) were more than willing to cosy up in a thorny bed to maintain this dysfunctional Union, rather than stand up and go boldly into the future which is full of potential. They are happy to support all these awful cuts to benefits which is the cause of much suffering to the weak and vulnerable in our society; cuts which Labour have promised will continue in the future following 2015 general election, should they win. They seem content – every one of them – to watch the gap between the wealthy and the poor stretch to mind-bending, record breaking levels, rather than say “No, this can’t go on, there is another, better way!”

What is it that keeps them tied hard and fast to the Butcher’s Bloody Apron-strings; that makes them too afraid to take up the cause of their kith and kin and actually try to improve the lot of the Scottish Nation?

Consider the gasping corpse that is the Tory Party in Scotland; why would it consign itself to electoral oblivion under the current system? Potentially, in an independent Scotland they could achieve a return to the popular party they were during the 1950s, but with a uniquely Scottish conservative slant. Or perhaps that’s where their imagination runs out. It has to be like Westminster.

Then there is the Labour Party, North Britain Branch, because they do not behave like a representative of the Scottish people. This crowd, as so eloquently pointed out on many, many occasions, would prefer to be ruled and dictated to by a Conservative parliament in Westminster, than put a foot on the next step of the promotional ladder and use the power of Holyrood to improve the lot of the people of, for example, Glasgow. These same people of Glasgow whose life-span, despite many decades of local councils being under Labour stewardship, has been shown to be shorter than the residents of Gaza.

When we come to the Liberal Democrats we appear to have a political party whose malleability is second only to warm Plasticine; willing to compromise their ideals for any taste of power. So, why not in an independent Scotland?

Could it be they are so used to taking instructions from headquarters in London that they have lost all confidence in themselves and are emotionally, psychologically and physically incapable of taking charge of decision-making and of forming a government? They certainly seem bereft of ideas and policies, and are deadly silent on what their function in an independent country would be.

Obviously the SNP never had to take instructions from, or toe the line of, any London-centric party. They have always been their own masters and have grown and matured over the last 70-odd years to become a very competent party of government within the devolved parameters of Holyrood. Furthermore, I’m confident that the changeover to independent, autonomous nation-hood will be no great problem to them either. As individuals they are, each and every one, all ready to work for the needs and the needy of Scotland.

In contrast, however, I think the other political representatives do not have that confidence, intellect or ability. They only know how to take and carry out orders. Therefore, to suddenly give them the power of a fully functioning government would cause them to behave like rabbits in headlights. As a result of their current set-up, i.e. receiving instructions from London bosses, they have never had to stretch their abilities beyond that of a glorified councillor. They’ve not really had to balance a budget as well as they should.

This is true, especially when you take into consideration their past record in power (1999-2007); PFI, PPI and so on. They have bequeathed a whole slew of extortionately expensive schemes, which have in reality indebted our grandchildren. My nephew’s daughter will be paying off hospitals and other public expenditure into HER adulthood.

Perhaps some of the now retired and more mature ex-members of those parties could have coped in government, but when I look at Lamont, Rennie and Davidson, I’m left with the knowledge they are followers not leaders.

You only have to watch their cringe worthy “performances” at First Minister’s Questions to see that. Their debating skills are limited ad hominem commentary and petty point scoring, instead of discussion and debate. Their sense of achievement appears to come from their perception that they have successfully dragged other MSPs characters, chiefly SNP MSPs, into the dirt, rather than finding solutions to the myriad of social and economical issues that affect the everyday lives of our fellow Scots.

It is now obvious to me and much of the general public that many of the current members of Labour, Libdems and Tories are by no manner of means ready for serious, grown-up politics; they’ve relinquished that responsibility to their masters in London. They have chosen to self-fulfil the “too stupid” myth by being incapable of standing up to the mark and saying “Not only, Yes We Can, But Let’s Show Westminster How It’s Done!”

Since the SNP landslide of 2011 and the promise of the referendum, not one positive reason for remaining part of the United Kingdom has been given by any of them. All that has happened is a torrent of scaremongering has cascaded from all Unionist quarters. Slurs, insults and in many cases, out and out lies have been utelised by them in an attempt to subdue the Scots into giving up their right to autonomy. In addition, we’ve had the “Jam Tomorrow” promise of increased powers post 2014. All we need do is look at the NHS in England and watch it evaporate despite promises made to conserve and nurture it, same with education fees.

Scotland’s fate in 2014 following a No vote is something I have no desire to even contemplate. It’s too dismal and depressing.

I believe that one of the reasons these Union politicians in Scotland are so unreservedly ideologically stuck to the maintenance of the United Kingdom comes down to basic lack of ability. They may even have some insight that they themselves are incapable of making such important decisions, and this is why they are afraid to step up to the mark. However, more importantly and probably closer to their hearts, it really does come down to the money.

Many believe their financial rewards will be greater remaining with the status quo. With the potential of a gift of a place on the Green Bench and an ermine cape, so long as they do their master’s bidding, they are more than happy to keep the querulous Scots kow-towing to Westminster’s increasingly miserly plan. However, they are not so daft as to miss the point that as members of an Edinburgh Government, we the people have sovereignty over it and them, and could ask awkward questions about expenses and dubious accounting. Whereas Westminster not only does very little to prevent this type of corruption, it actively encourages it, as we have seen many of those who paid back false claims are having them repaid.

And for these selfish reasons alone, Scotland could remain yoked to a system which has little in common with her social aspirations. A system dedicated to maintaining the false perception bolstered by compliant media that, although The United Kingdom is over-run with layabout spongers, the worst of them all (if the comments section of the Daily Mail and Telegraph are to be taken seriously) are the lazy, drunken, scrounging Scots north of the border.

When in reality, we all know the real scroungers and money-wasters occupy Green and Red Leather Benches in a luxurious palace on the banks of the Thames. 

The very place that many, if not most of the Unionist supporting politicians would dearly love to be.