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.

Dissecting the McCrone Report, the official secret of Westminster

It appears appropriate to put this report into plain English, highlight its significant areas and make it very straightforward for the average person to understand the main thrust of this “official secret”.

The McCrone report is a document often referred to by Nationalists or those generally in favour of the restoration of Scotland’s sovereign powers as something of a mystic Holy Grail with regards to proving Westminster's lies and deceit.

For those who have read it, it’s shocking. The reaction to its draft by Westminster is even more so. The report was buried in the Whitehall’s vaults for 30 years under the auspices of the “Official Secrets Act”.

As we all know, the Official Secrets Act is there to protect The State form prejudicial interferences which may affect National Security. Therefore, we need to understand exactly what that is and how anything gets that designation. Was it appropriate in this instance?

Fundamentally a document can be classed as an official secret, if it contains information which is construed to be prejudicial to the State, basically the implication is the information could be used by enemies of the State, most often such classification would be seen in times of war and applied to military aspects of the State. A democracy really should not have official secrets of a civilian nature, especially during periods of peace.

Therefore, in the UK almost any official article prejudicial to the perceived security or interests of the State can be designated an officially secret document, and an individual could apparently have been prosecuted based upon character alone if it were even suspected they might have been thinking about discussing or disseminating it. Talk about character assassination.

Every appearance is that the UK government is substantially abusing its authority by invoking this heavyweight power against a peacetime document, which simply asks questions surrounding the implications of a mineral deposit discovered within one of its constituent nations.

It is clear this report was classified as an “official secret”, for to release it would have ended London rule. The pretext was it endangered the state as controlled by the UK parliament, and it had to be crushed prior to any distribution. The reason being, if it became public knowledge then attempts at suppression could easily be argued to violate UN charters on the rights of indigenous populations.

At a minimum, it could/should have lead to an entirely different Scotland today.

In reading the report it is obvious the Westminster government of the day put London before Scotland and chose, in time of peace, to enact legislation designed to protect the state against antagonistic foreign interests.

The only available interpretation here was that the London government viewed Scots knowledge of the report as an inimical foreign interest.

Reading the report it becomes clear why there was a cover up and why confusion, confabulation, lies and misdirection remain the apparent order of the day for many in the London establishment even as we head for another Scottish independence referendum – having won the first in 1979.

The report commissioned by Ted Heath in 1974, was written specifically to assess the implications for Westminster with regards to both the SNP and the EEC following the discovery of North Sea Oil. Heath lost the October general election to Harold Wilson. Both Labour and the Conservatives could have come clean and revealed this report. Neither did.

The paper began by acknowledging that “the whole framework within which the economic implications of nationalism were argued has indeed been altered”. Fundamentally the opening paragraph says it is a whole new ball game and Scotland’s just been gifted an unassailable 5-0 lead.

The document continues by highlighting the underlying causes of discontent in Scotland and acknowledges “these problems have not been overcome, nor do they look as if they will be in the foreseeable future”. McCrone is basically stating that under the political status quo, Scotland can only anticipate the status quo of poor health, deprivation and relative economic stagnation.

We can assume any government would not wish this for its electorate, no matter how small a portion. Westminster evidenced this is not the case in London. The only clearly available interpretation is that Scot’s don’t matter.

McCrone therefore concluded the opening overview with the statement “The importance of North Sea oil is that it raises just this [economic] issue in a more acute form than at any other time since the Act of Union was passed”.

In plain English – the discovery of the oil is a game changer and not one Westminster can defend against, it threatens the very existence of the British State more than anything else has in almost three centuries.

Fundamentally that statement put it into the realms of the Official Secrets Act. The report, if released, had every expectation of undermining the establishment within the British State.

The inappropriateness of burying this document was irrelevant in the eyes of the ruling government of the day; to make this an “official secret” was a fundamental requirement for Westminster. It did not matter that they were lying to an already deprived populous, who were no external threat. It had to be buried, before a strong campaign of disinformation could proceed. This led to the 1979 referendum which the Unionists still lost.

As the report progresses McCrone acknowledges that Scotland’s main impediment to national economic success is Westminster and its London-centric policies. He states it is “partly a question of the scale of the Scottish economy, but more of the extent to which it has been integrated with the rest of the UK [England] over the last 270 years”.

In his next paragraph he ties both unemployment in Scotland and migration from Scotland to the effect of the Union and its policies before stressing three ways an independent Scots government could prosper. 

He recommends protection of Scotland’s existing and new industries through taxes and tariffs, but indicates that there may be repercussions from the EEC; though he describes that what may come from the EEC is likely to be insignificant in comparison to the reprisals from England.

Basically he’s saying an independent Scotland shouldn’t expect Westminster to play nice.

He then suggests a Scotland implements a self directed fiscal policy, one which benefits Scots, not London.

McCrone makes the case that this independent Scotland could afford policies that England could not match. He’s basically warning Westminster at this point that they should expect to have an economic powerhouse as a neighbour, small in relative size but wielding far more power in this present world.

He then proceeds to discuss the Kilbrandon Commission and its ramifications, where Scotland was shown to need English subsidy. However, Kilbrandon had ignored oil revenues, and consequently showed the need for a reduction in an independent Scotland’s budget, a subsidy from England or significant borrowing.

McCrone disagreed with Kilbrandon, noting even then without oil, it would be feasible for an independent Scotland to balance the books. Achieving this end primarily by no longer contributing to the extremely high UK defense budget and by implementing a modest devaluation of the Scots pound. Other potential implications were viewed by McCrone, but none were seen as “deal breakers” on the path to independence. He noted that with the advent of oil, the Kilbrandon Report was a dead duck; however, Westminster used it most effectively.

In the report, McCrone went so far as to suggest without considering the discovery of oil, that the above measures would be enough to stimulate the economy, provide jobs and growth and put the nation on a firm footing.

With the discovery of oil he noted, it might be difficult to contain the rise in value of the Scots pound.

It’s useful to understand that Scotland under UK fiscal policy has seen more than a 100% currency devaluation since the McCrone report. Under Westminster’s stewardship our current high point in Scotland is that we’re now stumbling into “Austerity”. No one can predict what might have happened had we the control of our own fiscal levers for the last thirty five years, but we can safely say it would have taken several administrations exhibiting unforeseen levels of gross incompetency to take us anywhere close to the area Westminster has us today. Effectively in the time since this report was written nothing has changed.  

McCrone then concludes his opening gambit by saying that for Scotland to succeed, Scotland requires economic sovereignty.

Economic sovereignty is what our upcoming referendum is truly about.

McCrone then proceeded to discuss the oil issue in greater depth – making it clear he was simply referencing Scotland’s “traditional” industries to this point as he clearly states “the analysis in the last section is based upon the situation as it appeared before the discovery of North Sea Oil”.

McCrone begins the section on oil’s implications by stating the department of trade and industry is hiding the revenue data from the public, the values he assigned have been removed or redacted from the original report by the UK government, it was apparently done with a black marker.

The document concludes that paragraph by saying the “significance of this [omission of true value] has probably not been appreciated by the public”. Or in other words “I believe the public has no idea of how much you are lying to them by omission”.

McCrone then attacks Westminster for rubbishing SNP claims about values and mismanagement of resources without making available documentary evidence, but acknowledges the government’s case was being bought by the Scots voting public who were being led to believe the SNP figures were “pretty wild”.

He then alluded to how Norwegian policy supported the SNP claims of Westminster incompetence. He went so far as to use the phrase “This has shown the total inadequacy of government arrangements to secure revenue…” before concluding the section with the clear and unambiguous statement “all that is wrong with the SNP estimate now is that it is far too low”.

So, the SNP grossly underestimated the oil revenues, Westminster used the media with all its might, convinced the Scots that the SNP estimate was “pretty wild” on the high side and that it would “run out soon” while all along, London was fully aware that the SNP was grossly underestimating as only Whitehall had the real data.

That’s on top of the fact Scotland already had a viable economy even without the oil.

The report then advanced into the realm of oil revenues on Scotland’s balance sheet, concluding that she could fundamentally be in better position than Norway presently discovers herself, with the statement “What is quite clear is that the balance of payments from North Sea Oil would easily …. transform Scotland into a country with a substantial and chronic surplus”.

This is worth repeating. Scotland would have no deficit, Scotland would have no debt.

McCrone went on to state that these numbers and statements were based on estimates that were already very conservative and consequently, the true picture for Scotland was much brighter than that painted above.

Interestingly the document then goes on to discuss the ability of England to claim a proportional level of North Sea Oil based upon a UK asset claim and demand disbursion based upon population ratio, effectively giving England over 90% of North Sea Oil reserves. The report threw this assertion out with both the baby and the bathwater. It stated “Dispute on these matters might well occasion much bitterness between the two countries, but it is hard to see any conclusion other than to allow Scotland to have that part of the continental Shelf which would have been hers if she had been independent all along.”

McCrone concludes this section of his report with the following summary, a summary as accurate today as it was over thirty five years ago.

“lt must be concluded therefore that large revenues and balance of payments gains would indeed accrue to a Scottish Government in the event of independence provided that steps are taken either by carried interest or taxation to secure the government ‘take’.

“Undoubtedly this would banish any anxieties the government might have had about its budgetary position or its balance of payments. The country would tend to be in chronic surplus to quite an embarrassing degree and its currency would become the hardest in Europe with the exception of perhaps the Norwegian kroner”. 


McCrone hypothesized that a Scots pound would be worth 20% more than Bank of England issue within two years, with little to no downside in the Scots economy. 

“Just as deposed monarchs and African leaders have in the past used the Swiss franc as a haven of security, so now would the Scottish pound be seen as a good hedge against inflation and devaluation and the Scottish banks could expect to find themselves inundated with a speculative inflow of foreign funds”.

Effectively this can be taken to read that there would have been no banking collapse or credit crises in an independent Scotland, whereas what happened under Westminster’s guiding gauntlet is now a matter for the historians.

The McCrone report concludes with a reasonably detailed examination of steps the Scottish Government could take to ensure Scotland’s prosperity over the longer term; there were surprisingly few negatives or cautionary aspects.

If this 1707 Union were a private contract, Scotland would carry none of the UK debt and in the upcoming negotiation for independence, Westminster would be open to severe penalties for fraud and deception.