Boris Johnson has brought Brexit back on to the table with a bill that his own ministers have had to admit could break international law.
Facing a Tory rebellion over the issue after criticism from five former prime ministers and dozens of Conservative backbenchers, Johnson offered an amendment to guard against a rebellion. The bill subsequently passed the Commons committee stage on Tuesday evening without the need to vote.
The amendment promises additional votes before the law-breaking powers are used – but the powers themselves are still on the table.
So might Johnson – whose decision last year to ask the Queen to prorogue parliament was deemed unlawful by the Supreme Court – soon be asking the monarch to sign off a bill that could break the law?
Watch: EU tells UK to 'stop playing games' on Brexit
Johnson tabled the Internal Market Bill earlier this month. It seeks to enshrine “mutual recognition and non-discrimination”, ensuring the four nations of Wales, Scotland, England and Northern Ireland can trade with one another.
But it also overrides parts of the Withdrawal Agreement between Britain and the EU by giving ministers the power to “disapply” previously agreed rules, including those for the Northern Ireland protocol, which helps ensure no hard border returns on the island of Ireland.
Although she is head of state, and hosts a weekly audience with her prime minister, the Queen is keen to remain politically neutral. The palace will want to avoid Her Majesty being dragged into constitutional or political controversy.
The Queen still gives Royal Assent to bills, approving their passing into law. It’s considered a formality now, and the Queen has never refused to give her assent.
The last time a monarch refused assent was 1708, when Queen Anne objected to the Scottish Militia Bill, though even in the Queen’s reign there have been contentious issues.
Dickie Arbiter, former press secretary to the Queen, told Yahoo UK it was “unlikely” she would be “dragged into anything untoward”, because she acts on the advice of her prime minister.
He said there would be ongoing discussion between the palace and Downing Street but by the time it gets to Royal Assent, the “i’’s have been dotted and the “t”s crossed.
For the Queen to rely on the advice of her prime minister, she must know that he or she is acting in good faith.
Anne Twomey, professor of constitutional law at the University of Sydney, told Yahoo UK this case is “unusual” because it concerns a breach of international law, not domestic, and because the government has admitted it, so it’s not likely to need to be resolved in a court.
Citing an example from Commonwealth realm Australia, Professor Twomey said: “In 1975, it took five months for royal assent to be given by the Queen to the new Constitution Act of the State of Victoria, because British officials were arguing amongst themselves as to whether certain provisions in it were constitutionally valid.
“One official took the view that the British government had to be satisfied that the reserved bill was within power, did not encroach upon the responsibilities of the Commonwealth government and (that) its enactment would not cause the Queen unacceptable embarrassment if successfully challenged in the Australian courts.
“It would appear doubtful, however, that the Johnson government would even understand the concept of embarrassment, so the relevance of the precedent is probably not great.”
Four years after that, Australia threw up another issue, as British ministers decided they could not advise the Queen to give her assent to certain bills dealing with appeals from the state courts, because they determined them to be unconstitutional.
In a meeting between New South Wales and British officials, the Australian argument was that “assent should be given and issues of validity left to the courts to determine”.
Brexit has thrown up unusual circumstances around Royal Assent before. When the Conservatives operated a minority government and MPs managed to pass the bill tabled by Hilary Benn against the will of ministers, the Queen might have been advised not to sign.
However, parliament was instead prorogued, so it may never be known what the ministerial plan was.
Gina Miller, who took the government to court over Brexit, said of the Internal Market Bill: “I wonder what our 94-year-old Queen thinks? Not only did her prime minister lie to her about proroguing parliament, he is now asking her to put her name to an act which would break international law.
“This would mar her legacy as someone whose life has been dedicated to the rules based order.
“What if she were to refuse Royal Assent? What advice will her privy counsellors give her?”
Citing the 1914 incident of King George V nearly refusing assent over the Irish Home Rule Bill, Miller added: “The tables are now turned as it would be her own prime minister who would be necessarily advising her to agree to break international law.”
Been pondering the #InternalMarketBill today and penned a few thoughts.— Gina Miller (@thatginamiller) September 13, 2020
People may wish to send to their MPs as the Bill comes before Parliament this week and MPs debate/consider the national and international consequences pic.twitter.com/eiv7yx2QnQ
Reflecting on the issue of Royal Assent in his paper Reforming the Prerogative in the UK, Professor Robert Hazell said: “What if the ministers proffering that advice can no longer command the confidence of parliament?
“The safer course, even then, is for the Sovereign to follow the ministerial advice; while the Queen would be strongly criticised, and really trigger a constitutional crisis, if she declined to do so.
“So long as the Queen follows the advice of her government, then as with the unlawful prorogation, all criticism would be directed at the government which is accountable to Parliament, and whose constitutional role is to absorb such criticism instead of the monarch.”
Now that the Internal Market Bill has passed committee stage in the House of Commons, it will travel through the House of Lords, where more questions are likely to be raised.
The UK is in the transition period of Brexit, with an agreement needed by the end of October if it is going to leave the EU with anything but a no-deal situation.
Ministers could delay the bill’s next appearance in the Commons until the results of the crunch summit in October are clear.