Leaving under Article 50 was on EU insistence a two phase process. There was a Withdrawal Agreement. The Future Partnership Agreement could only be negotiated after exit. The Northern Ireland protocol was a difficult part of the Withdrawal Agreement which looked forward to the future relationship in ways the EU otherwise said were not allowed. The UK signed it, promising to improve it and tackle outstanding problems in the final Agreement on future trading. That Agreement did not in the end change some important contradictions and ambiguities of the original Protocol.
The EU has decided to assert authority and to implement with excessive detail and complexity the bits of the Protocol it likes. This has violated the parts of the Protocol the UK inserted to protect itself. The UK government agrees the EU has now broken the Agreement, and is arguing for revision. This was provided for by Article 13.8 which foresees the need for substantial change in the arrangements. Many only agreed to the Withdrawal Agreement on the understanding that the Protocol would be transitory.
Urgent political need
The majority community in NI feels badly let down by the Protocol and resents the way the EU is taking over their part of the UK , diverting trade from NI/GB and requiring strict observance of a widening range of EU laws which they cannot influence. Sinn Fein is currently in the lead in opinion polls for the May Assembly elections. The Unionist parties are desperate for support and action from the UK government that would seek to rebuild the UK internal market in NI and reassert UK sovereignty and democracy as the form of government. The Unionists think the Protocol has upset the political balance and has undermined their Union with GB. They tried to take action to rectify some of the faults of the Protocol. This resulted in the collapse of the Power Sharing Executive with the resignation of the First Minister. The Protocol has caused a constitutional crisis.
The UK case under the protocol
There are good parts to the Protocol which the UK wants enforced.
“The Good Friday Agreement….should be protected in all its parts” Instead the EU has lost the consent of the majority community by alienating NI from the UK
“determined that the application of the Protocol should impact as little as possible on the everyday life of communities in both Ireland and NI” Instead it has gravely damaged GB/NI trade and the legitimacy of NI government
“NI is part of the customs territory of the UK and will benefit from participation in the UK’s independent trade policy” This is impeded by EU rules and controls
“the importance of maintaining the integral place of NI in the UK’s internal market” The position has been badly affected by gross restrictions on GB/NI trade
“shall use best endeavours to facilitate the trade between NI and other parts of the UK” They have done the opposite
This is why the UK government thinks they can exercise rights under Article 16 to redress the damage being done by the current lop sided interpretation and enforcement
How to proceed
Make one last attempt to persuade the EU to adopt mutual enforcement. The UK will control the GB/NI trade, whilst legislating to ensure no GB to NI goods can find their way into the EU if they are not compliant with all EU requirements. The EU/Republic will be responsible for all trade flowing into the Republic and will undertake not to send goods to NI that do not comply with UK rules.
If they do not agree, the UK will go ahead and impose this system. The UK will legislate in Parliament with a money Bill to create a UK based system of regulating and taxing GB/NI trade. The legislation will instruct our courts and Customs and Excise service to obey our rules and controls on this trade, and to make it a criminal offence to send the goods onto the Republic to protect the EU’s single market.
It is wrong that a UK supermarket cannot send a container of varied food products to Belfast with the minimum of fuss as it can to Birmingham. Trusted traders should have no more paperwork for NI than for England or Scotland.