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16 September 2020

Downing Street has won over Tory MPs, but Lord Keen’s resignation tells the real story

Backbenchers in the Commons have been reassured by Downing Street's latest move, but the legal reality remains unchanged.

By Stephen Bush

Downing Street has reached an accord with the rebels, with the government pledging to table an amendment to the Internal Market Bill that would require a Commons motion before a minister triggers the clauses that would break the United Kingdom’s legal obligations under the terms of the EU-UK withdrawal agreement and the Northern Ireland protocol.

The most important line in the agreement is the conclusion that the bill “requires no further amendment”: a not particularly coded message to the House of Lords that the House of Commons will resist any attempts to further water down the Bill.

How significant is the accord? In terms of parliamentary procedure, very significant: it heads off the prospect of a major Commons defeat for Boris Johnson and is an accord the overwhelming majority of Conservative MPs can rally around. The minority who still harbour concerns about the bill, because they can count, will likely also fall into line.

But in terms of the legal implications of the Internal Market Bill, it is not at all significant. The British government is still declaring that it, in some circumstances, it envisages trying to unpick its legal obligations under the terms of the Northern Ireland protocol, which ensures the survival of the open and largely frictionless border on the island of Ireland. The mere act of its passage is, arguably, in breach of Article 5 of the withdrawal agreement, that the European Union and United Kingdom shall “in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement”. Nor is it any clearer why the Internal Market Bill, in the event that the European Union behaves badly, is an upgrade on the existing arbitration mechanisms contained within the Northern Ireland protocol.

That legal reality is why Richard Keen has resigned his post as advocate-general (the Westminster government’s top lawyer for Scotland), despite the accord between the rebels and the government, and it may be why Keen’s fellow peers will still seek to amend or even vote down the bill.

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But in terms of the diplomatic picture, the amendment is not necessarily insignificant. Don’t forget that the withdrawal agreement contains a theoretically explosive and destabilising exit clause in the event of an affirmative vote to quit the Northern Ireland protocol by the power-sharing institutions at Stormont. Of course, in theory that affirmative vote looks impossible to muster, which is one reason the Democratic Unionist Party is so opposed to the border protocol.

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It is certainly possible that a theoretical but inaccessible set of law-breaking powers are easier to ignore, at least at this stage of the diplomatic process, than the very real and immediately accessible law-breaking powers as envisaged in the unamended bill would be.

But, ultimately, to get a deal, Johnson will have to either retreat to something resembling either the British-crafted backstop or the Northern Ireland protocol, largely authored by the European Commission but signed, sealed and delivered by him. Neither retreat looks politically palatable, and therefore a no-deal exit remains the most likely outcome.