If Westminster won't follow the rules, why should the rest of us?

This hypocrisy is brought into public by the current attempt by Boris Johnson to negotiate the Northern Ireland Protocol. Lord Frost travelled on October 12 to Lisbon to deliver a speech with the pretentious title Observations On The Present State Of The Nation. A more honest title would have been Why The Northern Ireland Protocol, Which I Negotiated, Is Unjust And Should Be Ripped Up.

In order to clothe the nakedness of his ideas, Frost clothed his speech with irrelevant quotations from Edmund Burke and the title was a nod to the 18th-century Tory thinker.

Most of the paper is platitudes but the two interesting parts are Frost’s comments on the reasons for Brexit and the alleged defects of the Northern Ireland Protocol.

Frost (below) claims “Brexit is about democracy”. He adds: “But the fundamental element of the Brexit project is about democracy – to bring home political debates, to allow us to set our own ways of doing things in our own way, to open up the field of political and economic possibility.”

Later, he continues: “We have always said ‘taking back control’ is about the ability to make sovereign choices across a range of different areas of national life.”

The First Minister herself could not have penned a more eloquent justification for Scottish independence. In a United Kingdom where Scotland is a perpetual minority of 8% of the population, it will never be able to take back control of its own affairs. Scotland will never be able to make sovereign choices within the Union.

Frost goes on to declare that “our choice is that our electors should be able to debate, and change, policy in elections. Those debates are now happening. For example there have been vigorous debates about the direction of the UK’s independent trade policy, with Parliament bringing different viewpoints to the table”.

This of course is nonsense. There are no meaningful debates or votes in the House of Commons. With a majority of 80, MPs in the Commons, delivered by only 43.6% of the votes cast, Prime Minister Johnson does what he likes. The all-important EU (Future Relationship) Act 2020 gives effect to a 1,246-page Brexit treaty which was passed in one day. Parliamentary debate and oversight was non-existent.

Frost then turns to real purpose of his Lisbon speech, fixing the Northern Ireland Protocol.

“It is the biggest source of mistrust between us and for all kinds of reasons, we need to fix it,” he says.

That this can be said by the very same man as the one who negotiated the treaty beggar’s belief. As well as apparently feeling no shame or responsibility for his actions, Frost seems unable to grasp the basic legal concept that international treaties, like private contracts, are supposed to be binding. If they are not binding, then they are pointless.

The overt reason Frost gives for wanting to tear up his own treaty is that: “The protocol is not working. It has completely lost consent in one community in Northern Ireland. It is not doing the thing it was set up to do – protect the Belfast (Good Friday) Agreement. In fact it is doing the opposite. It has to change.”

In fact the protocol is working well for the most part, apart from the movement of sausages and medicines issues on which EU is willing to move to make NI-GB trade easier. The Northern Irish economy is now in an economic sweet spot as the only place in the world which is in the EU single market and in the UK single market. Trade with Ireland is flourishing and one suspects that is one big reason why Frost does not like it: as intra-Irish trade grows the bonds to Britain will weaken. Inadvertently, the only place which is enjoying Johnsonian “cakism” is the six counties.

As well as not working, Frost claims the protocol “has completely lost consent in one community”. This is a drastic overstatement. The DUP and UUP may be unhappy with the protocol but the combined Unionist vote in the 2019 General Election was only 42.2%. The majority vote went to pro-EU parties.

Moreover, it should never be forgotten that Northern Ireland voted by 55.8% to Remain: so keeping the Province in the protocol is actually recognising the democratic wishes of the people who live there. One might even say it is recognising their sovereign choice! Further, what about the other community? The Nationalist community is very happy with the protocol and one seriously fears for the continued operation of the Good Friday agreement if they are alienated.

IN any case, it now appears that the British government had no intention of honouring the protocol. Yesterday on Twitter Dominic Cummings revealed that deal had been a way to get Brexit done and win an election and the Government should be allowed to “sometimes break deals … like every other state does”.

This has lead a furious Leo Varadkar (below), the former Taoiseach who negotiated the Northern Ireland protocol with Johnson in October 2019 to say: “Those comments are very alarming because that would indicate that this is a government administration that acted in bad faith ... and that message needs to be heard around the world because if the British government doesn’t honour its agreements, doesn’t adhere to treaties it signs, that must apply to everyone else too.”

It would appear that the Johnson government sees Perfidious Albion not so much as an insult cast by continental Europeans at England but more as a mission statement to be embraced. But Varadkar should not have been surprised that Johnson considers that the Northern Irish Protocol no more binds the UK than his several sets of marriage vows binds him personally.

After all, back in September 2020 the then Northern Ireland Secretary Brandon Lewis brazenly informed the House of Commons that a bill to amend the Irish protocol of the withdrawal agreement with the EU would “break international law”, albeit in “limited and specific ways” would be enacted if they though it desirable.

The implications of these developments for Northern Ireland are obvious and deeply worrying for anyone who cares about its peace and prosperity but they also have implications for Scottish independence. Despite the attempts since Theresa May by the Tories and their mainstream media lapdogs to spin the Holyrood elections as a defeat for indfyref2, it is clear to any neutral observer that there is a democratic mandate for such a referendum.

That the Sturgeon government will successfully pass a Referendum Bill through Holyrood is beyond doubt. Democracy demands a second referendum. That leaves only the law to prove the exercise of Scots democracy. British domestic law is the last barrier protecting the Unionism from the will of the Scots people. At the moment Johnson can survey these legal defences with some confidence. Firstly, he has can order his Advocate General (London’s tame Scots law officer) to the challenge the validity of a referendum bill in the Supreme Court with a Section 30 order within 30 days of its completing its stages in Holyrood.

If the Supreme Court confirms that such an order is necessary, then he can simply refuse to grant one. Alternatively, Johnson may choose to allow the bill to be given the Royal Assent and become law and then rely on a wealthy unionist sock puppet to challenge the validly of a referendum in the courts.

Lastly, and certainly not least, even if the Scottish Government was to win its case before the Supreme Court – an outcome which is possible, if far from likely – Johnson can simply bring the sovereign mace of the Westminster Parliament down on the heads of the Scots people by passing an act making referenda on Scots independence illegal.

But how can the Tories insist on the binding force of law if hold international law in naked contempt? That can only further undermine the legitimacy of the Union. It would be pure hypocrisy for Westminster to use domestic British law as their last wall behind which to defend the Union, while at the same time apparently dismantling the walls of international treaties they themselves negotiated!

So although when it comes to British law Johnson really does seem to hold all the cards, all that presupposes that respect for Westminster law continues in Scotland to be as strong as in the past. A British government which refuses to be bound by treaties is in a very weak place morally and politically to insist on the continued compliance with British domestic law.

The Scottish Government and people might well conclude that, if Britain can waive the rules when it suits, Scotia would be a fool to continue playing by Albion’s rules and should go ahead and hold indyref2 even if Westminster says no. And an EU which has seen its own treaty with the UK torn up might well be receptive to the idea that even an unlawful (under British Law) referendum can confer sufficient legitimacy to allow Scotland to apply to re-join the EU.