What effect might the outcome of the US election have on the current Brexit negotiations? Joe Biden’s victory signals a dramatic shift in American foreign policy. This means that Boris Johnson’s Irish border gambles look increasingly risky, argues Colin Provost (UCL).
Brexit has not been an easy ride for the British public or for any of the politicians or civil servants involved in its negotiation. While Brexiteers once promised that the UK would “take back control” and be free from EU regulations, relatively open borders and far-reaching legal jurisdiction, we have instead seen negotiations with the EU repeatedly approach the brink of a no-deal Brexit, only to be pulled back at the last second, while extensions and transitions delay the final exit. Boris Johnson’s recent attempts to pass the Internal Market Bill that violates the terms of his own 2019 withdrawal treaty from the EU once again raise the very real possibility of a no-deal Brexit. However, the political ground underneath Johnson’s government has recently shifted, as Joe Biden’s victory in the 2020 US presidential election signals a dramatic forthcoming shift in American foreign policy.
To understand the current negotiations, it is vital to comprehend the importance of the border between Ireland and Northern Ireland – the single largest thorn in the side of Brexit negotiations. Leaving the EU without a trade deal has always meant re-establishing a hard border, as customs checks would need to be performed on goods crossing the border. While the 1998 Good Friday Agreement – the treaty that effectively brought an end to The Troubles – does not explicitly forbid a hard border, most observers agree that a hard border is not desirable and runs counter to the spirit of the agreement.
The 2019 Withdrawal Agreement crafted by Boris Johnson’s government allegedly sorted this problem by fixing the border in the Irish Sea, while keeping Northern Ireland primarily aligned with EU regulatory standards, to avoid the hard customs border. It was this agreement that helped Johnson cruise to victory in the 2019 election on the back of the slogan, “Get Brexit Done”. However, the presence of the border in the Irish Sea means that goods moving from Northern Ireland to the rest of the UK must clear customs. The government’s Internal Market Bill is designed to give ministers the right to overrule this part of EU law, as well as EU state aid conditions that apply to goods in Northern Ireland. But while this flexibility may represent the sort of taking back control originally envisaged by Johnson and other Brexiteers, it nevertheless threatens the Irish border status agreed to in 2019, thereby putting the government in breach of the Withdrawal Agreement and international law.
Johnson has faced pushback from EU negotiators and from within his own party for going ahead with the bill. On November 9th, the bill was overwhelmingly defeated in the House of Lords, but Johnson has signalled intentions to revise slightly the bill, while proceeding apace with its law-breaking elements.
How does the incoming Biden Administration affect the thinking around the Internal Market Bill?
President-Elect Biden cares about what happens in UK-EU negotiations, whereas it is not clear to what extent President Trump does or did care. In most ways, Biden is the opposite of Trump, but especially in foreign policy. Biden served in the US Senate for decades and has developed significant expertise in negotiation and foreign policy. Whereas President Trump sought to take a wrecking ball to the established order of multilateral treaties and institutions, Joe Biden very much seeks to preserve it. And he clearly believes that the Internal Market Bill, possibly followed by a no-deal Brexit, would have destructive consequences for the Good Friday Agreement and peace in Northern Ireland. But what can the incoming president actually do to steer Downing Street in his preferred direction?
What the victory of Joe Biden does for the Brexit negotiations is effectively add a stern and carefully scrutinising observer. Whereas Donald Trump would have stood on the sidelines and cheered Boris Johnson on to deliver red meat to Brexiteers with rebukes to Michel Barnier and the EU negotiators, Joe Biden will be looking to ensure that a trade deal between the EU and UK is achieved, thereby avoiding a hard border in Ireland and preserving the integrity of the Good Friday Agreement. Of course, Biden will still be the president-elect by the time the UK formally leaves the EU on January 1, 2021, so Biden can only leverage the promise of future action (or inaction) as a carrot or stick for the Prime Minister. Johnson’s government is eager for a trade deal with the US, so doing the right thing here in the eyes of the US might be rewarded further down the road. Conversely, taking actions that lead to a no-deal Brexit and a hard Irish Border will eliminate the prospect of a US-UK trade deal happening anytime soon.
Given this political reality, it would seem that the Prime Minister would be pragmatic and remove the offending clauses from the Internal Market Bill. After all, the list of those clamouring for such an excision includes EU negotiators, Joe Biden, Tory backbenchers and a fairly overwhelming majority in the House of Lords. Additionally, the Prime Minister has had four and a half years to come to terms with the fact that preventing the re-establishment of a hard land border means keeping to some degree the EU Single Market in Northern Ireland and ceding some sovereignty to the EU. The Prime Minister cannot have it both ways.
But Johnson appears determined to move forward with the bill intact, even as some of the loudest pro-Brexit voices in his government, such as Dominic Cummings, exit Downing Street. It is not clear if he is embracing a negotiating strategy that borders on reckless, less than two months before the transition period ends, or if he really believes that the Internal Market Bill will prevent a hard Irish border, as he has maintained. Time is running out for him to convince Michel Barnier and now Joe Biden as well, which seems an increasingly impossible task. If he is unable to convince them of the value of the Internal Market Bill, the UK will be more likely to head towards a no-deal Brexit and the honeymoon with the Biden Administration will be over before it can begin.
This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics. Image by Eric Haynes, (CC BY-NC-ND 3.0).
Not sure I get this. The IRE/NI Protocol in the Withdrawal Agreement ensures no hard border in Ireland. A UK-EU FTA would reduce some checks in the Irish Sea (not all). But it has no direct impact on a land border. The Protocol is ‘all weather’.
The Internal Market Bill threatens to override some of these features of the Withdrawal Agreement.
Many peers thought it blows it allows unilateral abrogation of the Protocol by any British Government with a Commons majority for any reason, and without any appeal to any court. If so, the WA Protocol becomes a treaty between the British Government and itself.
It is refreshingly honest for the author to declare that ‘.. the 1998 Good Friday Agreement – the treaty that effectively brought an end to The Troubles – does not explicitly forbid a hard border.”‘ But while discussing how international law might be broken by the Internal Market Bill one might therefore expect some mention of how the Withdrawal Agreement breaks the Good Friday Agreement (GFA). Under the terms of the GFA, Northern Ireland remains within the sovereign territory of the United Kingdom of Great Britain and Northern Ireland and should continue to do so unless the people of Ireland agree otherwise. By handing regulatory powers to the EU, the WA undermines the sovereignty of the UK legislative institutions within the territory of Northern Ireland. As Provost correctly asserts, ‘The government’s Internal Market Bill is designed to give [UK] ministers the right to overrule this part of EU law..’. But Provost really should explain that by preserving the sovereignty of the UK in Northern it also preserves the integrity of GFA. If the GFA is so essentially for maintaining peace in Ireland then understanding how the WA violates it must not be ignored.
Colin Provost rightly points out that the Good Friday Agreement does not explicitly forbid a hard border in Northern Ireland, The reason is that the EU membership of both the UK and Ireland was a fundamental feature of the GFA. Obviously this joint membership removed any possibility of a hard border.
If anyone doubts that joint membership of the EU was fundamental, let them read the introduction to the GFA Annex setting out the British/Irish Agreement. It includes the statement – “Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and partners in the European Union….” . I would go so far as to say that in making this solemn and binding agreement, entrenched by referendums North and South, both the UK and Ireland gave up their entitlement to unilaterally leave the EU. In other words the 2016 referendum on EU membership should never have been put to the UK electorate without reference to the Irish electorate. It is notable tha the Northern Ireland electorate decisively voted to remain in the EU.
My argument here is an amicable one, unlikely to be supported by international law. However the Northern Ireland protocol agreed by the British government which in effect places Northern Ireland jointly in the UK internal market and the single EU market is the only way it would ever have been possible for the EU to sign up to the Withdrawal Agreement which won Boris Johnson the December 2019 general election. The protocol stands whether or not there is a UK/EU free trade agreement and must not in any circumstances be abrogated.
Denis Loretto writes ‘If anyone doubts that joint membership of the EU was fundamental, let them read the introduction to the GFA Annex setting out the British/Irish Agreement. It includes the statement – “Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and partners in the European Union….””
I don’t think this establishes a “fundamental” role for the membership of the EU in the GFA. It says that at the time of signing there is a unique relationship involving partnership in the EU, and that the parties to the agreement wish to “develop” this relationship. “develop”, not “preserve”. If builders develop a greenfield site, it does not remain green.
Also, I certainly don’t remember anyone at the time of the GFA claiming that this entrenched the UK’s membership of the EU.
What I think is true is that back then, no-one really considered it especially likely that the UK would leave the EU. If they had, there would probably have been provisions in the GFA to address this. But there aren’t.
I also think Northern Ireland was hard-done by in the Brexit referendum and I wish Leave voters had considered more seriously the potential damage they were doing to the unity of the UK. The provisions of the Withdrawal Agreement, which commit NI to EU rules, but allow the people of NI a chance to exit this arrangement via their assembly, seem to me to be an elegant solution.
“I would go so far as to say that in making this solemn and binding agreement, entrenched by referendums North and South, both the UK and Ireland gave up their entitlement to unilaterally leave the EU.”
But there again Freedom of Movement appears to be in direct violation of the Equalities Act because it gives fair skinned people a preferential opportunity of immigration to the UK. If the UK were ever to consider rejoining the EU, then the legality of signing up again to Freedom of Movement would need to be addressed first.
“But there again Freedom of Movement appears to be in direct violation of the Equalities Act because it gives fair skinned people a preferential opportunity of immigration to the UK.” Come off it TJ, you are being ridiculous. Freedom of movement gives people the chance of moving to the UK if they possess certain documents issued by certain national governments, irrespective of whether their skin is fair, dark, or green with purple spots. I suppose you already expect persons whose passports bear the words “British Citizen” to be allowed preferential access to the UK, so why any Equalities Act should be violated by extending such access to persons with other passports from certain other governments is beyond me.
Suppose UKIP had got to power and decided that they would allow free entry to citizens from predominantly white Commonwealth countries such as Australia, Canada, New Zealand etc but not the rest of the Commonwealth. I would assume the legislative body in the UK would find some way of making that proposition illegal. If so, I don’t think the situation regarding Freedom of Movement is quite so simple as you suggest.
TJ, yes good point. But the EU borders are not determined by skin colour but by geography. Nobody is suggesting that Nigeria is racially discriminated against by not being allowed into the EU.
In the post-war period immigration laws across Europe, including in Britain, were never expressed in terms of excluding a particular race or ethnicity. But implicitly they were always designed to exclude black people, or “non Europeans”. European immigration laws were designed to permit white Africans, white Americans, and white Australians etc to come, or return, to Europe. Since most of the former European colonial powers came together to form the EU, immigration policy has been largely standardised to continue this policy. Fortress Europe is one of the most heavily policed borders in the world (forget Trump, the EU beat him by years to build his wall). It is designed to separate the labour market between “European citizens” and non-European “Others”. EU citizens have rights, “Others” don’t, the guestworker system makes this only too distinct. In other workers guestworkers are not citizens and few right, they are allowed to remain in the EU so long as, and only if, employers need them. Since colonial times when the concept of the European began to take hold, it was always based on racial ideology. While racial ideology might now be less explicit, it remains embedded within the immigration policy of Fortress Europe.
Judging by the (to me welcome) multiracial nature of most EU countries I think Mr Ramsden’s imagined post – war superplan for keeping Europe white must have been implemented extremely inefficiently.
Ironically Brexit could be good for North-South Irish relations. The UK & EU established that in addition to the 12 areas for cross border co-operation identified in the GFA, that there are now over 160 areas (157 devolved to Stormont Executive) of all island connections that need to be protected or developed.
Potentionally this could develop a nprth-south interdependence and provide the necessary platform around which to build the relationships necessary to develop the next phase of the Peace Process, and a much needed safe landing for Brexit, not to mention the post Covid economic crisis (Shirlow, Irish News Platform 31 August 2020).
This move to greater north-south connectivity would be enhanced and boosted by endorsement by President Elect Biden.
You miss the point – its about rights. Citizens of the EU have rights but these rights are not extended to non-Europeans. It is not an equal arrangement between Europeans and Others. That’s not to say that non-Europeans were are not admitted, they are. But they don’t have the right to enter Europe and when they are, they are invited as “guests”. Immigrants are invited to ensure the labour market does not overheat, and keep wages down and do the jobs that Europeans do not want to do. Trump’s wall between Mexico and the US is based on geography but I don’t think many liberals will miss the racial connotations of race and racism that the wall provokes. Its not as though Trump doesn’t want cheap Mexican labour to work in US factories. Its amazing how those opposed to Brexit will accuse Brexiteers of being racist because they demand control of immigration – not by race but according to the geographical borders of the UK, while ignoring Fortress Europe and the fact that most European countries in the post-war period have had immigration control based on “geography”. It might be worth noting that some of those committed to fighting racism recognsed that immigration control was the cutting edge of racism because it sent out the message that immigrants were responsible for unemployment, housing shortages and crime. But then again some of these opponents of Brexit claim that free movement in the EU is about freedom! Its like suggesting that living in a gated community gives someone the freedom to move around their community un-hindered. Of course, gated communities is not about freedom, its about exclusion of Others. Fortress Europe is about the exclusion of non-Europeans. And of those migrants drowning in the Mediterranean because of Fortress Europe, how many are white?
Mr Wilson does not seem to understand that after brexit Ireland will remain a member of the EU and subject to all its rules and regulations – and also of course its benefits and opportunities. It would not be free to develop with Northern Ireland a separate and different relationship in trading or in anything else which comes within the EU treaties.
An article on TV tonight told us that Tesco is making provisions that it might not be able to transport sausages from its depot on the mainland to Northern Ireland from next year.
Yet the EU has signed up to article 184 of the Withdrawal Agreement which required that the EU negotiate a satisfactory future relationship that respects UK sovereignty using good faith and best endeavours.
I don’t see how these two things can be reconciled.
I used to be undecided about Boris’s Internal Market Bill but given this context I can understand why he thought it necessary.
Mr Biden needs to look more carefully at Brexit, it may not be too long before California decides that it needs to take back control. The US constitution is no longer fit for purpose and is not capable of being fixed. It is time for the Democrat states to reform under a new constitution.
From afar, there are several items which appear.
First is the comment by Ireland that there will be no trade – deal if the internal market bill is passed. This cannot be underestimated.
Second is that the US sponsored the Belfast Agreement / GFA and regard it as their only success in that area in the. 20th Century.
Third, we have seen that the UK (the main island) introduced BSE to the world as an economic matter in manufacturing bonemeal in the. 80’s and introduced Foot & mouth to the RoI in the 90’s.
Merkel has committed to Ireland’s cause, mentioning the E. German border in her upbringing, and Macron is, well, very French.
Fish was not helped by HMG taking control of Guernsey’s fishing (despite its) positioning as a Crown dependency)
These need to be included in any discussion.
With Trump now calling for a complete rerun of the 2020 election, Mr Biden should have some understanding as to why eurosceptics wished to escape from the ‘wrong result vote again’ mentality of the EU.