After a summer break, Northern Ireland is back in the news again as the United Kingdom and European Union prepare once again to square off over the future of the Protocol.

At this point, it looks as if everyone expects another extension of the ‘grace periods’ which allow British produce to freely enter the Province, for the two sides seem no nearer a resolution than before.

One might expect, after having these special arrangements in place for almost a year, that Brussels would by now have clear evidence of the market distortions created by the unrestricted flow of British exports across its ‘external frontier’. There’s no sign of it, though – not that this has in any way softened the EU’s position.

In a recent speech to the British-Irish Association, David Frost set out the Government’s view of what the Protocol is for:

“Written clearly into the Protocol are a number of different principles: protecting all dimensions of the Belfast/Good Friday agreement – the Protocol’s key purpose and raison d’être in the first place; ensuring North/South cooperation and avoiding a hard border; respecting the essential state functions and territorial integrity of the United Kingdom; protecting Northern Ireland’s integral place in the UK internal market; and protecting the single market.”

The problem, he argues, is that too many seem to view it exclusively through the lens of protecting the EU single market or honouring the May Government’s (absurd – it is not a Belfast Agreement requirement) pledge to maintain an absolutely invisible border with the Republic. This, according to Frost, ‘unbalances’ the Protocol and renders it unworkable.

When it comes to remedies, he points out that the grounds for the UK triggering Article 16 have already been triggered – “That is simply a statement of fact” – but the Government would prefer to negotiate substantial changes to make the Protocol workable. Whether or not Brussels is remotely open to that is another matter.

The point about Article 16 is important, however, because it gives important context to the Government’s insistence that it isn’t going to simply ‘tear up’ the Protocol. The fact is, it doesn’t need to. The Protocol already contains the tools it might require. Here is the actual text of the first section of Article 16:

“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.”

Whilst the language about “serious economic, societal or environmental difficulties that are liable to persist” is vague, that about “diversion of trade” is not. And Ulster supermarkets being forced to set up new south-facing supply chains because they can’t import products from the mainland is diversion of trade.

Unsurprisingly, this point usually goes unacknowledged by those who keep demanding that the UK honour the agreement it signed, and pretend that activating a safeguarding clause negotiated into the Protocol would somehow breach the Protocol.

But it seems clear that the Government’s refusal to allow east-west supply chains to be severed is entirely in keeping with its legal commitments – even if some Irish and European commentators can’t fathom that a legal text might occasionally operate against their interests.