Boris Johnson will personally decide whether to maintain clauses that break international law in upcoming legislation later this week, potentially throwing any EU-UK trade deal into disarray.
The internal market bill, which the prime minister has argued is required to protect trade between the four nations of the UK, undermines the withdrawal agreement signed last year between the UK and the EU in relation to Northern Ireland.
The parts of the legislation that break international law in a “limited and specific way” were stripped out by the House of Lords last month. MPs are due to vote on Monday on whether to reinsert the clauses, but no one in government is certain whether Mr Johnson will ultimately push the point.
The sensitive timing is made all the more delicate by the plan for Mr Johnson to call the European Commission president Ursula von der Leyen to review the last-ditch talks on a trade deal that got under way on Sunday afternoon in Brussels.
Downing Street has insisted that the clauses will be voted back in on Monday, but it is unknown whether they will seek to keep them in if the House of Lords votes to remove them for a second time.
If MPs vote to reinsert the clauses at this point, peers will have one final opportunity to remove them on Wednesday when the bill returns for the final scrutiny from peers.
“Everything we’re being told suggests the clauses will come back, but we haven’t got a deal yet. Just as the PM will have to decide on a deal, he’ll have to decide on the [internal market] bill,” one cabinet minister said.
A government official said: “The PM is going to have to make this call personally, he’s incredibly forceful about the need to have a safety net. But safety nets can always be taken away when they’re not needed.”
The EU has warned that the bill constitutes an “extremely serious violation” of the withdrawal agreement and has requested Mr Johnson withdraw the clauses. Any Brexit trade deal is also likely to hinge on whether the UK will respect the withdrawal agreement.
Conservative MPs are expected to support adding the clauses back into the bill. Just two MPs voted against the clauses in September, but 30 abstained — including former prime minister Theresa May.
One Tory grandee predicted a similar-sized rebellion on Monday. “I think the government’s majority will hold. The real question is whether the Lords do it again.”
If a Brexit deal is struck, Mr Johnson may choose to allow the clauses to fall away in the Lords instead of forcing MPs to vote on reinstating them again.
One senior Tory added: “We’ve marched up the hill to support the [internal market] bill. We can’t march them down again.”
As well as the internal market legislation, the government is expected to table the taxation bill on Wednesday that will include similar measures relating to Northern Ireland.
The legislation to implement any EU-UK trade deal in British law will be drafted at “unbelievable speed”, with parliamentary aides suggesting it will take about a week to produce a workable bill.
Although parliament’s lower and upper chambers were due to rise for the Christmas break on December 17, it is widely expected that MPs and peers will continue to sit into the next week. “I can’t see how we can get the deal passed before December 22 or 23,” one official said