Boris Johnson’s clash with the House of Lords is a strange way of negotiating with the EU

Last night’s defeat by peers won’t matter if there is an EU trade deal – and if there isn’t, the government will have more important things to worry about, writes John Rentoul

Peers defeated the government last night by a margin of 433 votes to 165 (AFP/Getty)

The prime minister, Boris Johnson, has promised to reverse last night’s defeat in the House of Lords by reinserting the clauses in the internal market bill that the peers removed. 

When the bill comes back to the Commons, those clauses will be retabled. “We’ve been consistently clear that the clauses represent a legal safety net to protect the integrity of the UK’s internal market and the huge gains of the peace process,” No 10 said in a statement last night.

The defeat in the Lords, by a huge margin of 433 votes to 165, with former Conservative leaders Michael Howard and William Hague voting against the government, was predicted. What is surprising is that it has prompted a lot of chin-stroking speculation about whether the Lords will persist in opposing the Commons if MPs, equally predictably, vote to reinstate the clauses. 

This is to overlook the EU trade negotiations, which are reaching their moment of truth at the same time. If there is a trade deal, it will remove the need for the clauses, and so Johnson will happily drop them. The clauses are needed only if there is no deal, and we leave the EU single market and customs union on 1 January with no new rules in place. 

If that happens, the fallback provisions of the Ireland protocol of the withdrawal agreement are supposed to come into force. 

It would be then, and only then, that the contradiction at the heart of last year’s election campaign would be exposed. The Tory manifesto promised Northern Ireland’s businesses that they would “enjoy unfettered access to the rest of the UK”, whereas the withdrawal agreement allowed the EU to insist that they should complete exit summary declarations for goods going to the rest of the UK. 

This is a bit of bureaucratic pettifoggery, but the EU has refused to drop it because it gives it leverage in the trade talks. Somehow, Johnson managed to blunder into the nuclear option of threatening to break the withdrawal agreement instead of going to arbitration first. Which means that the clash between the Lords and Commons is mainly for show, as an attempt to gain some counter-leverage in the negotiations. 

How Johnson and David Frost, his chief negotiator, think this will put pressure on the EU to finalise the deal is something of a puzzle, but it certainly raises the stakes on the UK side and puts even more pressure on the prime minister to make the compromises needed for a deal. 

I still assume a deal will be done, although I realise this is a dangerous prediction to make. The sticking points of fish and subsidies do not appear to be hard to unstick, but there is always a risk that if both sides push it too far they will end up failing by mistake. 

If there is a deal, then last night’s defeat won’t amount to much – although it seems unwise to those of us schooled in pre-Trump politics to use a threat to break a treaty as a way of doing politics. 

And if there isn’t a deal, then the situation changes significantly, and the balance of the argument in the Lords will shift. If there is no deal, then the question is whether the Lords wants to follow the letter of international law in imposing a pointless burden on Northern Ireland businesses, contrary to the manifesto on which the government was elected. 

But if there isn’t a deal, there will be so much else to worry about, with tariffs on trade with the EU, some of which will have to be levied at Northern Irish ports on goods destined for the Republic, that the internal market bill may seem like a sideshow.