The UK Government’s draft law to illegally set aside part of the Northern Ireland protocol threatens to cause reputational and economic damage to Scotland as well as to the rest of the UK. It also creates a moral argument for independence - should Scotland allow itself to be represented in foreign affairs by lawbreakers? For as long as Scotland remains part of the Union, we effectively allow the UK to speak for us.
The UK government is taking a recklessly one-sided position over Northern Ireland - it fails to recognise that the majority of those elected in Northern Ireland’s recent elections support the protocol, including many business people from both sides of the divide, who recognise that Northern Ireland is doing better economically than ever before - second only to London in the recent ONS growth figures.
Having access to the EU via an open border with Ireland whilst having a border between the rest of the UK and Northern Ireland has massively boosted Northern Ireland's economy compared to the rest of Brexit-damaged Britain. This is the case study that the UK Government wants to destroy.
The Republic of Ireland supports the protocol, which is helping to mitigate some of the economic damage Brexit threatened. The Scottish government also supports the protocol - indeed it asked for something similar but was ignored. The EU supports the protocol and so does the USA.
The draft bill “has been declared illegal by the most prominent legal minds in the UK.”
It is no surprise to anyone that leaving the EU single market created a difficult situation with Ireland, where there is a contested territory that was created by the UK in dubious circumstances a century ago. The UK government in 2020 signed up to a deal that placed the border between the UK and the EU in the Irish Sea, instead of across the island of Ireland. It was a compromise position to respect the Good Friday Agreement.
And yet the UK Government has now introduced a draft bill to set this on its head which even moderate Conservatives recognise is illegal. The Financial Times Policy Editor Peter Foster wrote this week in an article entitled “UK’s approach to solving the protocol problems is illegal” that the draft bill “has been declared illegal both in Brussels and by a clear balance of the most prominent legal minds in the UK.”
Some commentators see the draft bill as a dog’s breakfast which will never become law, at least in its current state. In order to foster her leadership ambitions, Liz Truss allowed it to be dictated by the right-wing, Brexit-ultra European Research Group: ‘“The ERG was driving it,” said one former Tory cabinet minister. Johnson, also relying on ERG support to keep him in Downing Street, could not afford to be outflanked by a leadership rival and so seized on the idea.’
But it went too far even for Johnson: “By the time Truss presented the latest draft to the “global Britain strategy” meeting of cabinet ministers last week, even Johnson chided his foreign secretary for giving too much ground to the ERG.” It was watered down somewhat with a residual, advisory role left for the European Court of Justice and some scope for NI businesses to use a dual regulatory approach, effectively adopting the higher standard of the EU over the UK.
The DUP has not committed to participate in power-sharing at Stormont even if it is passed
The legislation itself is likely to face a rocky road to becoming law, it will be batted back and forth between the Commons and the Lords. Even if the bill were to become law before the next general election, which will be in 2024 at the latest, it would be unlikely to satisfy the demands of the Democratic Unionist Party.
The DUP has given no commitments that even this Bill would be enough to persuade it to participate in power-sharing with Sinn Fein at Stormont. The DUP is no longer the largest party in Northern Ireland and a slow demographic shift in the province means it is unlikely ever to be the largest party again.
EU retaliation is already damaging Scotland
The EU has already started to retaliate - by barring UK and Scottish research scientists from the world’s biggest funding stream. Scotland’s Universities tend to punch above their weight in terms of research grants and this is a major blow. The Guardian reported that 16 of the UK’s top research teams have already indicated they will move their work to Europe to keep the prestigious funding awards - it didn’t name them or give their locations.
Brussels has launched legal action against the UK over the Northern Ireland protocol. The European Commission has announced it will resume a previously paused legal action against the UK for failing to implement full border checks for goods arriving in Northern Ireland from Great Britain.
Anger is mounting in the US
The US officially reacted calmly to the draft Bill this week, saying it will proceed with trade talks and: "The U.S. priority remains protecting the gains of the Belfast Good Friday agreement”, but there are signs of increasing anger. Bob Menendez, Democratic chair of the Senate foreign relations committee, called Johnson’s decision “an irresponsible move that threatens the 24 years of peace”.
The UK Government appears to be risking what it once called ‘the special relationship” and regarded as an important post-Brexit trading opportunity for ideological reasons. Scotland has a dog in this fight - for example, whisky exports could be at risk if the UK continues to act in this reckless and irresponsible way.
Scotland is part of a UK that disregards its obligations
But, more importantly, as part of the United Kingdom, Scotland is being represented internationally by a Government that is breaking the law and disregarding obligations that it signed up to.
The UK Government is effectively trying to bully Ireland into accepting a situation that is clearly inimical to its interests. But for once, Ireland is not alone at the negotiating table, as it was a century ago when the Anglo-Irish agreement of 1921 was signed.
An independent Scotland could distance itself from a reckless UK Government that has no electoral mandate in Scotland for its chaotic adventurism. But, for as long as it remains part of the Union, the UK Government speaks for Scotland in international affairs. The economic and reputational damage is already evident and may worsen.