Exclusive

By Kathleen Nutt

Political Correspondent

SCOTTISH salmon, whisky and cashmere will be first in line to face European trade tariffs in a move to "create more dissent" in Britain and get round any move by Boris Johnson to dodge a court fine, according to a leading expert in EU law.

Catherine Barnard, Professor of EU law and Employment Law, at Trinity College, Cambridge University, gave her assessment of what penalties officials in the commission would issue after they announced a series of new legal and continued challenges against the Conservative Government last week.

The European Commission move came a day after the introduction of a Bill at Westminster to unilaterally scrap the Northern Ireland protocol despite Johnson signing up to it as part of the Withdrawal Agreement in 2019.

The DUP have long objected to the arrangements which the party insists creates a constitutional border between Britain and Northern Ireland.

In protest, DUP politicians are refusing to take their seats in the devolved Belfast assembly.

However, a majority of Stormont parties insist the protocol is working with the country's economy growing faster than other parts of the UK. They reject the UK government's plans to over-ride it.

Speaking to the Herald on Sunday, Professor Barnard, who is deputy director of the think tank, UK in a Changing Europe, said it was likely the EU would win the legal battle and had already "game planned" a scenario that the UK would not recognise the court action and may refuse to pay any resulting fines.

She was asked about what would happen if the UK loses the legal case.

"The interesting question is whether the UK even participates in the processes and whether it cares," she said.

"It depends on which legal route you go down but it would have to pay a fine, but it may say 'we don't recognise the court' and we're not paying the fine which would be millions."

She added: "The EU has game planned that. So I think they may bring proceedings...under the dispute resolution mechanism which means ultimately they can impose tariffs.

"The UK would have no choice [on non payment of tariffs]. The tariffs are not imposed on the UK but on goods.

"The EU would target things like Scottish salmon. Scottish salmon producers would have to pay the tariffs if they want to import their goods into the EU.

"They will have a list of sensitive products. Scottish whisky would be another one that would be targeted as it is high profile. And cashmere.

"From the EU's point of view it is good to target Scotland, of course it creates even further internal dissent within the United Kingdom. This is the way it goes."

She continued: "They can say they are taking a proportionate response as Scottish salmon is only a very small part of GDP. It's iconic but small."

Speaking at a press conference in Brussels on Wednesday, Vice-President Maros Sefcovic said an initial legal action would relate to the movement of agri food and gave the UK two months to respond "otherwise we would take them to the European Court of Justice".

The timescale for any action and tariffs imposed on Scottish goods may therefore co-incide with First Minister Nicola's Sturgeon renewed independence campaign and plan for Indyref2 in October next year.

At the press conference Mr Sefcovic condemned the UK arguing the Westminster legislation broke international law.

He also made clear he was aware of the possibility the UK may not comply with any decisions from the European Court's in terms of the commission's legal action arguing that not recognising the ruling would be "piling one breach of international law upon another".

"I think that the role of the European Court of Justice in ruling on matters of European law is very clear," he said.

"It is clearly reflected in the Withdrawal Agreement. It is clearly reflected in the Protocol. Not respecting the European Court of Justice’s rulings would be just piling one breach of international law upon another. Does the UK want to go in that direction when the rule of law is something that we are discussing in every international forum these days? Is this the way forward?"

"Is it compatible with the proud British traditions of upholding and respecting the rule of law and international law in that regard? So that is [these are], I would say, the political questions I am throwing up, and of course, how other potential partners would look at the UK when they will be negotiating their agreements with them. Will there be a change in one year, two years? Will they stick [with them], will they be respected? These are of course questions for the UK government to respond to."

The Scottish salmon industry wrote directly to Johnson in May to raise concerns about the impact of a trade war with Europe following a statement to the Commons from Foreign Secretary Liz Truss setting out the government's intention to change Northern Ireland protocol.

Scottish salmon sales to the EU were worth £372million in 2021 – accounting for 61 per cent of global exports of the product.

Any tariffs imposed on producers would adds to costs and potentially significantly damage the industry. which directly employs 2,500 people in Scotland and supports more than 3,600 suppliers, with 10,000 jobs dependent on farm-raised salmon.

Tavish Scott, chief executive of Salmon Scotland, said: “Scottish salmon is a world-renowned product and the UK’s biggest food export, supporting thousands of jobs in Scotland and providing nutritious food for millions, so it must not be treated as a political football.

“At a time of rising costs and concern about food security the last thing our farmers and the country needs is a trade war with our partners in Europe.

“Two-thirds of all salmon exports go to the European Union, making it our largest and most important market by far.

“Exporters simply cannot afford a return to increased checks and delays at the channel.

“We urge all involved to find a political solution that maintains vital trade deals.”

The Scotch whisky industry is also heavily dependent on exports to the EU and accounts for a significant proportion of the country's total exports.

In 2021, the EU accounted for £1.36bn of Scotch whisky exports - 30% of total global exports valued at £4.5billion.

Figures for 2019 showed all Scottish exports valued at £35billion, of which £16.4 billion was to the EU. In that year, Scotch Whisky made up 14 per cent of all Scottish exports globally, and 9 per cent to the EU.

Mr Sefcovic last week did not rule out the possibility that the EU could rule out withdrawing completely from the Trade and Co-operation Agreement, meaning the UK would face trading on WTO terms in a no deal Brexit arrangement.

Asked about the possibility following the publication of the UK legislation on the protocol, he said: "If this draft bill will become the law, then of course I cannot exclude anything. But we are not there yet, and we want to solve this issue as two partners should: through negotiations, looking for common ground and delivering for the people in Northern Ireland."

Professor Barnard also thought withdrawal from the agreement a possibility amid deteriorating relations between the EU and UK.

Constitution Secretary Angus Robertson said: "Yet again, Scottish trade – and our interests more widely – are collateral damage to the intransigent position being adopted by the UK Government.

"Its provocative approach in pursuing legislation widely considered to be breaching international law risks a disastrous trade war with the EU in the middle of a cost of living crisis.

“Brexit has already contributed to an increase in food prices and a recession is now a real possibility. The UK Government must return to the negotiating table and withdraw this Bill to avoid heaping yet more misery onto individuals and businesses in Scotland.”

The Foreign Office was approached for comment.