Why Scottish Tories will welcome talk of a hard border with England

Senior SNP figures are struggling to deal with questions over what EU membership for an independent Scotland would mean.

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The SNP has always believed – and Scottish Tories have always feared – that they could turn any special Brexit solution for Northern Ireland into a political advantage. The crude logic is as follows: if Northern Ireland gets to retain its membership of the customs union and parts of the single market, then why can't Scotland, given that it also voted to Remain? Or, if it is possible for one part of the UK to have a seamless land border with an EU member state, then why wouldn't that be the case for an independent Scotland?

Those questions, particularly the latter, have loomed large over the nationalists' annual conference in Aberdeen this week. Nicola Sturgeon's insistence that she will seek another independence referendum next year, regardless of the outcome of this phase of the Brexit process, means they cannot be avoided. 

While Scottish Conservatives in Westminster always worried that the Irish backstop or a solution like it would give succour to the nationalist argument that Scotland's Remainers were getting a duff deal from Brexit Britain, they are much more relaxed about the arguments over the border that SNP ministers have been dragged into over the past few days. 

In near enough every broadcast interview she has conducted from conference, Nicola Sturgeon and her lieutenants have been asked how they intend to reconcile EU membership for an independent Scotland with an England that by that point may well have left the customs union and diverged from most single market regulations. The first minister has settled on an answer: she doesn't believe in borders, she doesn't want a border, and doesn't accept that the imposition of one would be necessary or inevitable. Addressing conference this afternoon, she went even further – claiming a special settlement for Northern Ireland undermined the argument that the Union was a "partnership of equals". 

Her finance minister, Derek Mackay, made a more detailed case for the defence when interviewed on the BBC's Politics Live earlier today. 

BBC: If Scotland does become an independent nation in the EU, and the rest of the UK has left the single market and customs union, will there be physical checks on the border between England and Scotland?

DM: No, we wouldn't want that. Even the UK government surely wouldn't want that. If you're trying to resolve the issue in Northern Ireland...

BBC: But you'd have two different customs territories, we've just seen what's been going on here at the moment in terms of the EU settlement and Northern Ireland, so why wouldn't there be physical checks?

DM: But if the UK government wants a frictionless border between Northern Ireland and the rest of Ireland, why on earth would they want a border between Scotland and England? Because we certainly don't, and I would advise the rest of the UK that it's in their interests, actually, to stay in the single market and customs union as well, because nobody wants a border. It's unthinkable. It wouldn't happen.

At first glance the exchange underlines the political risk that was always inherent in an assertion first made in Theresa May's Lancaster House speech in January 2017, and formalised in the joint report of that December: that the UK government believed that the status quo on the Irish border could be maintained despite leaving the economic structures of the EU, and that it was committed to doing so. 

But, crucially – some would say crassly – it neglects the unique circumstances of the Irish border, its sensitive post-conflict context, and the UK's legal commitments under the Good Friday Agreement. The legal and political reality of that treaty, its provision for reunification with the Republic, the citizenship rights it confers and the cross-border cooperation it mandates is that Northern Ireland is neither Scotland nor England's constitutional equal, whatever Sturgeon says.

Then there is the question of what this UK government wants. While it was certainly true that Theresa May was unwilling to countenance any new physical infrastructure on or near the Irish border, Boris Johnson has repeatedly demonstrated that he has no such scruples. 

If this Conservative administration was prepared to propose new customs posts in Ireland despite the Good Friday Agreement and, indeed, the letter of its own policy, then it is impossible to argue that ministers are opposed to any hardening of the border, as Mackay did. And that is before you even consider the fact that, in the event of negotiations with an independent Scotland, there would be no international peace agreement constraining them.

That this tricky argument is featuring in just about every media interview with any senior SNP figure is reassuring jittery Scottish Tories. "It really is lovely to watch," crows one MP. With an election looming, many of them believe that they will be in a much better position to hold onto their seats if the UK has already left the EU by the time voters go to the polls – precisely because of the difficulty the SNP is having in giving a convincing answer to questions about the logistical realities of independence such as this.

Patrick Maguire is the New Statesman's political correspondent.