When a new prime minister takes charge in Downing Street next week, among the pressing issues in their in-tray will be the state of the union. With the SNP seeking independence for Scotland, and ongoing issues with the EU and the Northern Irish protocol, how will they deal with the problems ahead?
European Union
Relations with the EU over Brexit are beyond strained, with seven separate infringement proceedings launched against the UK in relation to the failure to implement the Northern Ireland protocol, which was set up to avoid a hard border between Northern Ireland and the Republic of Ireland.
Although Liz Truss, the likely next prime minister, has protested that 18 months of talks aimed at resolving the dispute came to nothing, leaving her with no option to table new laws to disapply the protocol, the reality is that talks were paused and never resumed after 24 February when Russia invaded Ukraine.
Speculation is rife that Truss will try to reopen talks by triggering article 16 of the Northern Ireland protocol. Article 16 allows either side to take unilateral action if they believe the protocol was causing “serious economic, societal or environmental difficulties”, or diversion of trade.
Some are reading this as a positive move, a softer option than the Northern Ireland protocol (NIP) bill enabling legislation to allow the UK to unilaterally tear up parts of the special Brexit arrangements for Northern Ireland.
But Brussels sources say the move will escalate an already serious crisis, arguing the UK has chosen “not to engage” with EU proposals made last October which offer some of what Truss was looking for, including “express” or “green lanes” for goods going to the Republic of Ireland.
“No one is optimistic about this. We are in for a very bumpy few months,” said one insider.
At the same time, Brussels is pushing forward with its legal actions in a narrative that could end with the scrapping of the UK-EU trade deal.
The deadline for the UK’s response to infringement proceedings is 15 September.
If this is deemed unsatisfactory, the EU will move quickly to get a “reasoned opinion” to combat the UK’s arguments and move the cases forward to the European court of justice (ECJ).
If, as some believe, Truss’s legal moves are to indulge the Eurosceptic wing of the Tory party, then it is possible the UK would simply ignore the ECJ, arguing it does not have legitimacy.
The ECJ is unlikely to rule until next year in any case but a thaw in the icy relations with the EU is not imminent.
If, in the meantime, the Northern Ireland protocol bill becomes law the EU could impose tariffs on UK fish and agricultural goods within seven days.
The short, sharp shock is one of the three key retaliatory weapons available through the trade agreement, according to Catherine Barnard, a professor of EU law at Cambridge University.
Northern Ireland
Northern Ireland remains a combat zone for hardline Brexiters who want an absolute break with the EU, and up to now Truss has willingly fought their battle.
With speculation rife that David Frost, the hardline Eurosceptic, will get a place in her cabinet, it appears the Brexit pot will continue to boil.
But at what price for Northern Ireland, where the assembly has been without an executive since the elections in May? Will the Democratic Unionist party abandon its boycott if article 16 is triggered?
“The Northern Ireland protocol bill was the cart before the horse. Triggering article 16 will at least give what is currently illegal a cloak of legality,” argues Jon Tonge, British and Irish politics professor at the University of Liverpool.
He believes article 16 could be enough to get the DUP back to the assembly but not back to the executive – ie, it won’t take up the position of deputy first minister or appoint a local cabinet of ministers.
The first test of the potency of any moves under article 16 looms at the end of October when a 24-week time period for power-sharing talks lapses under amendments to the Northern Ireland Act in February.
The Northern Ireland secretary is then obliged to call a fresh election, posing another Belfast crisis and potential showdown with the DUP in less than eight weeks.
There is no appetite for a new election says Tonge, so Westminster could introduce legislation allowing for more time for talks.
Tonge believes the DUP could be lured back into an executive if the new prime minister were to take dramatic action and guarantee, via an act of parliament, that the NIP bill were to become law even if rejected in the House of Lords.
Such a dramatic intervention is possible under the rules one year after a second reading of a bill, which in this case would be 27 June 2023.
Northern Ireland voters have had a zombie government since the elections in May, meaning no new laws can be made or the multi-year budget passed.
The prospect of no new government until June 2023 will fill many with horror given the cost of living and health crises, but will also remind many how Boris Johnson put getting Brexit done ahead of the interests of Northern Ireland by agreeing a deal that would see part of the UK continue to observe EU laws on trade.
“It is an extraordinary deal that the EU signed up to and shows an extraordinary lack of attention to detail on the British side,” says Tonge.
Scotland
When Truss dismissed Scotland’s first minister Nicola Sturgeon as “an attention seeker” whose calls for a second independence referendum “should be ignored”, the collective heart-sink among many Tories north of the border was palpable.
It flagged a serious failure, they argued, to grasp the urgent need to persuade moderate unionists, wavering yes voters and the chunky minority of undecideds of the benefits of remaining in the union – as the debate in Scotland gains momentum after Sturgeon named her preferred date for a second referendum as 19 October next year.
With the SNP leader setting herself on a collision course with Downing Street by asking the supreme court to rule on the legality of holding a new referendum without Westminster’s permission, the constitutional question looks set to dominate Truss’s early months in office.
The supreme court will hear the Scottish government’s case in October, although Sturgeon herself told the Guardian in a recent interview that she does not anticipate a ruling until early 2023.
Aileen McHarg, professor of public law and human rights at Durham University, says: “If the supreme court upholds the legality of a referendum [without Westminster consent] – which I don’t expect that it will, but I don’t think is impossible – then obviously the UK government is faced with a decision as to how it responds.
“Does it say ‘go ahead, but we’ll ignore the referendum’, does it agree to cooperate, or does it legislate to remove this power from the competence of the Scottish parliament regardless of what the supreme court says?
“If the decision goes the other way, and the supreme court says Holyrood can’t legislate for a referendum unilaterally, then I would expect the position will be maintained – that the last referendum was once in a generation, now is not the time, all of that rhetoric – which is really about trying to kick this issue into the long grass.”
Many argue this position is swiftly becoming unsustainable. “What is absolutely clear from all the polling is that yes voters want a referendum at some point between now and 2026, and no voters do not,” says renowned psephologist Sir John Curtice, professor of politics at the University of Strathclyde.
“You are not going to persuade people who are on the yes side that Scotland should remain in the union on the basis that ‘we are going to deny you the chance to express your views in favour of yes’. It doesn’t add up.”
Regardless of whether a referendum is held next October, says Curtice, the Scottish government is about to ramp up its campaign to persuade people of the benefits of independence. If they can offer a convincing answer to why it is better for Scotland to be outside the UK and inside the EU, it makes it even harder for unionists to “sit on their hands”.
“The Labour party says ‘please can we talk about something else’, the Tories say ‘we shouldn’t be talking about this’, and it means neither of them is actually engaging with the debate that is definitely going on amongst Scottish voters,” Curtice says.
What is not yet settled is how Truss will choose to engage – her aggressive pronouncements during hustings suggest she favours the “muscular unionist” approach advocated by many around Johnson when he first took office.
But allies suggest she will maintain the more conciliatory approach advocated by Michael Gove, with an emphasis on promoting the union through direct investment.
Former Scottish secretary David Mundell MP told the Guardian before he introduced Truss at the only Scottish hustings in Perth earlier this month that she was a “bold” unionist who understood Scotland after spending some of her childhood in Paisley.
Mundell added that Truss had an immediate advantage in not being Johnson. “We’re not going to have a double referendum on Boris Johnson and on independence. She’ll be less divisive and offputting for middle ground Scottish voters.”
Will more of the same – even if it is in Gove’s mould of subtle promotion – be sufficient to persuade enough Scots that they want to remain part of the union, even as that means remaining outside the EU?
