It was last week that questions over Lord Keen’s position as one of the government’s senior law advisers first emerged.
A three-page letter, marked “official – sensitive”, seen by the Guardian, revealed his serious reservations over Downing Street’s intention to override the EU withdrawal agreement.
It summarised the legal opinions of the government’s three law officers – the attorney general, Suella Braverman, the solicitor general, Michael Ellis, and Keen, then the advocate general for Scotland.
The letter showed that Keen, who was also the Ministry of Justice spokesman in the Lords, was alone in advising the government it would breach the ministerial code if ministers defied international law and overrode the withdrawal agreement.
Despite that revelation, Keen held the government line on the necessity of the bill, refining its position by arguing in the Lords that “the bill does not of itself constitute a breach of international law or of the rule of law”.
On Tuesday, however, he took a different tack, appearing in the Lords and putting himself at odds with Brandon Lewis, the Northern Ireland secretary, whose startling admission last week that the internal market bill breached international law triggered the latest Brexit crisis.
Q&A
What is the UK internal market bill?
The internal market bill aims to enforce compatible rules and regulations regarding trade in England, Scotland, Wales and Northern Ireland.
Some rules, for example around food safety or air quality, which were formerly set by EU agreements, will now be controlled by the devolved administrations or Westminster. The internal market bill insists that devolved administrations have to accept goods and services from all the nations of the UK – even if their standards differ locally.
This, says the government, is in part to ensure international traders have access to the UK as a whole, confident that standards and rules are consistent.
The Scottish government has criticised it as a Westminster “power grab”, and the Welsh government has expressed fears it will lead to a race to the bottom. If one of the countries that makes up the UK lowers their standards, over the importation of chlorinated chicken, for example, the other three nations will have to accept chlorinated chicken too.
It has become even more controversial because one of its main aims is to empower ministers to pass regulations even if they are contrary to the withdrawal agreement reached with the EU under the Northern Ireland protocol.
The text does not disguise its intention, stating that powers contained in the bill “have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent”.
Martin Belam and Owen Bowcott
Keen suggested that Lewis’s words should be qualified because he had “essentially answered the wrong question” when he spoke to MPs. But on Wednesday, the Northern Ireland secretary, giving evidence to the Commons Northern Ireland affairs select committee, emphatically rejected that suggestion.
He had given the “correct” answer, Lewis said, and it was a “very straight answer” that was “absolutely in line” with legal advice. Doubling down, he said he had read from a script.
“I read out something very specific because I wanted to ensure that what I said … to make sure that I was giving the house a straight answer. My answer was in line with the legal opinion given by the law officers. The position I took at the dispatch box is not a breach of the ministerial code, but I am not the arbiter of that.”
Lewis said he had spoken to Keen and that he had “agreed that the answer I gave was the correct answer”.
Over the previous hours, there is now known to have been a behind-the-scenes clash with the government, which had been attempting to maintain a unified front, at least at cabinet level.
Keen’s attempt to impose a different narrative on the legislation seems to have failed. Later on Wednesday, he confirmed he had handed his resignation to the prime minister, bringing to an end a years-long tenure as a minister – and adding to the government’s Brexit headaches.