Sammy Wilson: The Brexit Withdrawal Agreement is the worst of all worlds, not the best of both worlds

Brexit will not be done either for Northern Ireland or the UK as a whole as long as the Withdrawal Agreement (WA) in its present form is in place.

The EU believes it is a legally binding document and its interpretation of it must be adhered to while the UK government maintains that its requirement to have an economic and constitutional border between NI and GB is not on the cards.

Both can’t be right and in order to deliver on the commitment in Article 1 of the NI protocol which states “This protocol respects the essential state functions and integrity of the UK” it is essential that the WA is revisited.

The EU want their interpretation of the WA to be cemented into place before it is even known what the future trading relationship between the UK and the EU is, even though that agreement could have significant impacts on the terms of the NI protocol.

By December the EU is demanding that the infrastructure for checking the movement of trade between NI and GB should be in place, the nature and extent of those checks should be agreed and implemented and that there should be no exemptions, derogations or flexibility for the checks.

They want the joint committee of UK ministers and EU commissioners to be at work on this before the end of March.

The government must resist this demand. No work should start on implementing the NI protocol until the shape of the Free Trade Agreement is known, since it could eliminate any need for checks. For example, a no tariff, no quota trade deal would substantially reduce the need for Irish Sea checks designed to collect taxes.

Article 13 of the WA makes it clear that changes such as this would supersede the WA terms and requirements so why start to erect barriers until this outcome is known. Apart from the cost of erecting an unnecessary infrastructure there is the danger that UK wide arrangements for dealing with the EU demand to protect their market for goods entering through NI might not even be considered.

There is a fear that in these negotiations the government may consider that reopening the NI issue is too much trouble when it has other contentious issues to wrestle with. This would be a mistake, apart from the promises made that there will be no border down the Irish Sea and the way in which different treatment for NI will be exploited by Scottish nationalists, the NI protocol has massive implications for the freedom of the UK government to decide its own policies and control its own laws.

Article 12 para 4 makes it clear that the ECJ not the UK government will have jurisdiction over whether or not the WA is being adhered to. Article 13 paragraph 6 reiterates that authorities in the UK shall not act as leading authorities in deciding on issues relating to the WA.

Furthermore, Article 10 which undermines the ability of the NI Assembly to support businesses if the EU judges such support to be unacceptable also applies to support for any businesses by the UK government if that support could give them any advantage over EU businesses trading in NI. So for a prime minister, who claims to want to take back control, the reopening and changing of the provisions relating to NI is essential.

The UK government are aiming to get an agreement which does away with tariffs on trade with the EU and gets arrangements whereby UK regulation are regarded as equivalent to EU laws so ensuring that trade is fair and not distorted. By including NI in these arrangements then most of the NI protocol would be unnecessary.

Any remaining concerns about goods which did not comply with EU regulations going into the Irish Republic and hence the EU single market could be dealt with by mutual enforcement i.e. the UK agree to prosecute anyone who attempted to take such goods through N.I.

If the government is serious about its commitment to no border down the Irish Sea, then these are the steps it needs to take and the negotiating stance it needs to adopt. Of course it is possible that no agreement might be reached by Dec 2020. Where does that leave the WA? Will the government stand over it in its totality or withdraw from parts of it? Would it be acceptable to pay the EU £34bn in the absence of an agreement?

Would the government still require UK courts to take into consideration judgements of the ECJ as the WA states? If not, then there would be no case for implementing the NI protocol either.

If the government wishes to show its resolve in these negotiations and if it wishes to retain flexibility on how the NI issue is to be dealt with then it should send a signal to the EU by taking no action on implementing the WA before the outcome of the UK future relationship with the EU has been agreed.

Boris Johnson does not need to look over his shoulder at a treacherous parliament any longer, the EU have no allies in London aiding and abetting its negotiation strategy, so there is nothing which we are asking for that is not achievable.

• Sammy Wilson is DUP MP for East Antrim