Brexit has become incompatible with the Union

Last year when giving evidence to the Westminster Brexit Trade Bill Committee I made the statement that Brexit was incompatible with devolution.  At the time it infuriated a few of the Conservative MP’s of the committee but it never occurred to me that they probably needed it spelt out in even plainer language because what I was really saying was Brexit is incompatible with the Union. 

This however seems to have started to finally sink in. Witness last week: Ruth Davidson and David Mundell threatening to resign if Northern Ireland gets a deal to stay in the single market.

Essentially Scotland’s two leading Conservatives are trying to stop Remain-voting Scotland getting a deal that protects it from the worst extremes of Brexit and will threaten to resign to ensure that Scotland gets as bad a deal as possible from Brexit.

Why? It’s not as though they want a no-deal Brexit or were even remotely doubtful about the EU prior to the Leave vote. Davidson famously campaigned for a 2014 No vote, predicting disaster as Scotland would be out of the EU. During the EU referendum she was a vocal Remainer and more recently stated that she wants to “Make sure that we’ve got a comprehensive free trade agreement with the EU” … and to “trade within the single market”.

Mundell waxed lyrical on the benefits of staying in the EU: “We will be stronger, safer and better off by remaining in a reformed European Union”. That our first priority must be the single market and “we are better off – because British businesses will have full access to the single market, bringing jobs, investment and lower prices”.

So why is special treatment for Northern Ireland such a big deal that resigning becomes an option? Well negotiations with the EU and the growing possibility of a no-deal scenario hinge on the Irish border issue. The Good Friday Agreement insists on no borders, largely to stop smuggling-funded terrorist activity. The EU says there is no need for a border on the island of Ireland; just have it between Northern Ireland and the UK.

The DUP and Scotland’s extreme British nationalist Tories say “over my dead body” because it would undermine the integrity of the UK. The UK Government has been unable to come up with a solution. Largely because there isn’t one.

So what’s the big deal? A few customs checks on the ferry as it arrives in Stranraer, some extra paperwork at Liverpool docks for containers from Northern Ireland. We can all manage that, can’t we? Well no, because if that is the cost of leaving the European Union there is a much older union that expressly forbids it.

Article IV of the Act of Union 1707 states:

“That all the Subjects of the United Kingdom of Great Britain shall from and after the Union have full Freedom and Intercourse of Trade and Navigation to and from any port or place within the said United Kingdom.”

There was an amendment in 1800 which put subjects of Great Britain and Ireland on the same footing (Article Sixth). It restates the necessity of freedom of trade but it also goes a little further stating:

“That in all treaties made by his Majesty, his heirs, and successors, with any foreign power, his Majesty’s subjects of Ireland shall have the same privileges, and be on the same footing as his Majesty’s subjects of Great Britain.”

Ok, so if there were any border and restriction on trade between Northern Ireland and other parts of the UK, as well as Scotland and other parts of the UK, this would in effect null and void the Act of Union, thus technically dissolving the nation of The United Kingdom of Great Britain and Northern Ireland into its constituent parts.

That would mean a new Act of Union and a new Good Friday Agreement were needed (and fast) – no big deal, nothing to see here, move along. Well, maybe not: as you should recall that both Holyrood and Westminster have confirmed Scotland as a sovereign nation.

Thus, if there were to be a new Act of Union then the old Union would cease to exist and some mechanism would have to be found to allow sovereign Scotland to sign up to the new Act for it would not be a union if forced upon us.

It’s rather amusing therefore to think that this also raises the prospect of a referendum to ratify a new Act of Union or remain an independent nation.

How would Unionists sell that in a campaign? 

  • Do you Scotland want to join a nation that will be run by a distant, dysfunctional and disinterested government that you didn’t vote for? 
  • Have your wealth invested outside your country but be burdened with debt that your nation didn’t create, and have those that did create it call you scroungers and subsidy junkies?
  • And have your ability to trade, travel and work abroad severely restricted because the new Union will operate outside the EU, even though you voted remain?
  • Do you want Westminster to roll back devolution, so Scotland’s parliament can’t protect you from the free trade deals the UK wants to strike with nations like the US, who will want their healthcare companies to be able to purchase privatised chunks of the Scottish NHS?

Thinking about it, that wouldn’t really be different to the offer they will have to make during an independence referendum – bring it (or at least one of them) on.


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About the author

Gordon MacIntyre-Kemp

Gordon MacIntyre-Kemp is the Founder and Chief Executive of Business for Scotland. Before becoming CEO of Business for Scotland Gordon ran a business strategy and social media, sales & marketing consultancy.

With a degree in business, marketing and economics, Gordon has worked as an economic development planning professional, and in marketing roles specialising in pricing modelling and promotional evaluation for global companies (including P&G).

Gordon benefits (not suffers) from dyslexia, and is a proponent of the emerging New Economics School. Gordon contributes articles to Business for Scotland, The National and Believe in Scotland.


  • When YOU voted for independence in 2014, YOU voted for Brexit. YOU never wrote a single word on how bad Brexit would be for Scotland, not a single one. Now it will be a disaster. How do you square that circle? You can’t, can you?

  • The Tory Endgame

    1. Legally binding Withdrawal Agreement to include backstop of THE Customs Union for Northern Ireland,
    2.* Non binding political statement to include “A Customs Union” for either All UK or just Mainland UK
    3. **Push through new Treaty of Union 2018, binding Scotland into UK forever,
    4. Prepare and keep secret Free Trade Deal with USA,
    5. Cancel “A Customs Union” simultaneously with announcing USA Free Trade Agreement
    6. Trash Barnet Formula and privatise everything and anything, thus indirectly causing substantial reductions in Scottish Government funding. Scottish Government will be forced into a sell off of Public infrastructure including NHS and schools
    7. Reduce taxes substantially

    Result: Damage, Destruction, Deprivation, Degradation, Despair, Death

    Notes: The EU should agree 1 above as they have honoured their commitment to the Good Friday Agreement.
    *The Labour Party should be supportive as the Political Statement includes “A Customs Union”.
    Both 1 and 2 will be voted on together in House of Commons making them likely to pass easily

    ** There will be saturation media coverage of how good this will be for all parts of the UK,
    embedded BBC journals will help with this. It will have cross party support of Tory, UKIP,
    Lib dems and Labour with only SNP and Plaid against. There will be minimal coverage, if any, for the NO case.
    Electoral Commission will once again be in charge and postal voting will be conducted similarly to the 2014 indyref.

  • Technically surely all that a north sea border would do is invalidate the 1800 amendment and the caluse in the 1707 treaty/act would still stand?

  • The four bullets referring to Unionists selling a new Act if Union equally apply to Scotland joining the EU. So How will pro-EU campaigners sell joining the EU the the people of an Independent Scotland?
    A Free trade zone with rUK is much more valuable to Scotland than the Free trade zone with EU.

  • Brexit is not incompatible with the Union – quite the opposite. The Act of Union states that Scotland cannot have different treaties and trading arrangements. That means ScotGov cannot demand different arrangements for Scotland whilst remaining within the UK. So either Scotland agrees by the terms of Brexit or it votes for Independence. Any halfway house desired by ScotGov/SNP is not satisfy the Act of Union.

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