Surely we can take it for granted the Conservatives in Westminster and Holyrood would never sell the Union short?
Well, taking anything for granted in politics risks being a grave misjudgement and so, just as we can find the Liberal Democrats are often illiberal and anti-democratic, that Labour no longer represents the voice of working people and Greens regularly put other causes such as independence and gender politics before the environment, it should come as no surprise some Conservative & Unionists in Westminster and Holyrood are sometimes closer to Corbynism than capitalism and can be shown to have played fast and loose with their duty to protect the Union.
Some readers may think I am being provocative just to have fun with parties’ names, but I’m not. I am deadly serious. The reason is last Wednesday in the Belfast High Court the honourable Justice Colton gave his ruling on an application for judicial review of the Northern Ireland Protocol – brought forward by a group of serious-minded and credible unionists that included Lord Trimble, an original negotiator and signatory of the Belfast / Good Friday Agreement – that laid bare the duplicity and misrepresentation (to put it mildly) of the Conservative Government.
While the focus of the Protocol’s relationship with the Act of Union and Good Friday Agreement is about Northern Ireland’s relationship with the UK it has huge ramifications for Scotland because it begs the question if the Conservative Government can be trusted to defend our place in the Union too. Further, given Scottish Tories are silent on the issue – with not a murmur in reaction to the case nor any obvious concern about the difficulties the Protocol is causing Scottish businesses in accessing Northern Ireland markets – their own reliability also bears scrutiny. Are they naively oblivious to what's going on or are they simply unwilling to be critical?
On the face of it the complainants lost, with all grounds for their action dismissed, as Justice Colton declared the Protocol legal – but to do so he had to claim the Act of Union 1800 had been amended without direct debate or a vote. He had to do so because he accepted the Protocol would otherwise breach the Act of Union and this was only avoided because the more recent Withdrawal Act 2020 and its Northern Ireland Protocol took precedence and had “impliedly” repealed certain sections of the Act of Union (in particular Article 6, which guarantees equal treatment in trade with Great Britain).
It was Justice Colton’s view the Westminster Parliament had the sovereign ability to amend the Act of Union and this had been done with the implied consent of its members.
If that were so it would be an open and shut case, but it is far murkier than that and this is why the complainants will appeal – and why it comes down to a matter of trust about what the Conservative Party says.
When pressed previously in the Commons on more than one occasion Boris Johnson said there was no conflict with the Act of Union and there was no need to worry. Thus there was never any scrutiny, never any debate and never any consent to the implied repeal. Constitutional change without consent is a breach of the Good Friday Agreement, which gives both communities in Northern Ireland the right to be consulted on changes to their status. The Protocol, justified as a means to protect the Good Friday Agreement and the peace it brings, now actually breaches it – and so puts peace at risk.
If the sacrosanct Good Friday Agreement is so easily cast aside what chances then that denying a referendum might be conceded easily too?
By showing they are not always good for their word – such as the Prime Minster denying he would ever create a border in the Irish sea and then doing just that – the Conservative leaderships in London and Edinburgh give succour to the Nationalists maintaining the pressure for a second referendum. By raising a huge question mark over Conservatives meaning what they say and holding their line, the past good work of denying the moral and political case for such a referendum is at risk of being undone.
There is a justifiable cynicism around Scottish politics that the constant threat of a further referendum suits the Conservatives (expect them to play the “No referendum” card again in 2024, or sooner) – for the possibility of secession helps them push Labour aside in Holyrood and Westminster elections – but this only rewards the SNP too.
Scotland needs to escape from this self-defeating political treadmill, but conceding another referendum would be a mistake as the policy of denying one has actually been working – by forcing people to think instead about the SNP’s decimation of public services and splitting the nationalists into warring camps.
It may seem that deciding on what politicians say now is not important as we have just had an election – but we are at the point in the electoral cycle where parties need to make strategic decisions, not six weeks before people go to vote – and they need to be honest with us.
The only real currency that politicians have is trust, by debasing that currency we all lose – and the Union is put at risk.
Brian Monteith is editor of ThinkScotland.org and served in the Scottish and European Parliaments for the Conservative and Brexit Parties respectively.