Editorial from The Irish Political Review December 2018:

The 26 County Government says it will not tolerate the restoration of a Border between the part of the island which it governs and the Six Counties in the North which are part of the British state. It means that it will not tolerate a Customs barrier.

In a bygone era it denied the legitimacy of the Irish region of the British state. Its Constitution asserted de jure sovereignty over the whole island. It repealed that assertion of sovereignty in 1998, after the IRA ended the War that it declared on Britain, on condition that the system of British government in the Six Counties was altered substantially in the interests of the large nationalist minority in the North.

The Dublin Governments had not in any sense been a party to the War between the IRA and Britain. This war was not in any sense a resumption of the Anglo/Irish War of 1919-21. It was a war declared by a new IRA, born out of the undemocratic, sectarian system of British government in the Six County region of the British state. Every Dublin Government during those 28 years condemned the War that the IRA declared and waged on its own authority.

The legitimacy of that authority as stated can be disputed, but the reality of support for the War by the undemocratically-governed nationalist populace is a fact beyond reasonable dispute. And the terms on which the War was settled were a substantial alteration in the British system of undemocratic government in the Six County region.

Dublin Governments throughout the War were disapproving onlookers, except for Charles Haughey and Albert Reynolds, who acted as intermediaries towards a settlement.

The Northern War of 1970-1998 owed nothing to Dublin Governments. They had no part in it. The terms on which it was ended demonstrated that it was—as this journal had maintained throughout—a British affair caused by the undemocratic mode of government that Britain chose to impose on the Six Counties as a means of enacting Partition.

Dublin Governments, while condemning the IRA for waging war on Britain on the issue of Northern Ireland, kept the clause in the Constitution which denied the legitimacy of British government in the Six Counties. And then they repealed that assertion of de jure Irish sovereignty in the North after the IRA agreed terms with Britain for ending the War—just as if they had been a party to the War.

Repeal of the sovereignty clause in 1971, when we demonstrated at the Department of External Affairs building to demand it, might have made a difference to the course of events in the North. Repeal in 1998 was at best an empty gesture.

There were grounds in the pre-1998 Constitution for action against a British border within Ireland. Article Three suspended action to give effect t to the sovereignty assertion of Article 2. Enforcement of sovereignty was left to the discretion of Governments.

In 1974, when the Government was charged with breaking the Constitution by signing the Sunningdale Agreement, its legal defence was that it did no more than recognise the fact that there was a British government in the Six Counties. Doctors C.C. O’Brien and Garret FitzGerald, the Coalition spokesmen on the North, said that their merely factual acknowledgement that there was British government in the Six Counties did not prejudice the right of any future Government to act to enforce Irish sovereignty.

The Constitutional assertion of sovereignty over the North was repealed, to no useful purpose in 1998. British government was recognised as legitimate. So what Constitutional grounds would there be for action by a Dublin Government to prevent Britain from establishing Customs posts along its Border?

The Border did not cease to be a Customs barrier because of any Dublin pressure on London, or any Anglo-Irish Agreement. It happened as a by-product of Ireland joining the EU following Britain in a British Isles sort of way. The sense of national purpose in the state was at a low ebb when it happened. The Establishment middle class of the nation had trivialised itself. It was shamed by the War in the North and it sought refuge from itself in Europe. And, apart from the fiercely resented Haughey period, it was cannon-fodder for Britain in its long, largely successful, campaign to divert the EU from its original purpose.

. . . And Now!

In its negotiations on Brexit, Britain has found itself in a novel position: in the past it has negotiated ‘unequal treaties’ with other countries—treaties in which its own force and might are brought to bear on the other party to secure arrangements to its own advantage and the disadvantage of the junior party. On this occasion the balance of power lies with the opposing party, and Britain must rely on its wits and statecraft to extract the best deal it can.

Ireland is, for the first time, on the stronger side in the negotiations. However, that advantage can be dissipated if it handles Unionist susceptibilities in its usual uncomprehending manner.

After Brexit there must be a comprehensive political, legal and economic barrier between Britain and Europe. The question is whether this division will occur between mainland Britain and the island of Ireland or run across the UK Border with the EU—the old Irish Border with Northern Ireland.

Tory MEP Charles Tannock has called for a referendum to be held in Northern Ireland, to allow for continued membership of the Customs Union and the Single Market after the UK leaves the European Union. At first sight this seems an attractive option: to seek democratic endorsement for the Special Status for Northern Ireland, which the EU negotiators—including Ireland—are seeking to extract from Westminster. The EU is demanding this Special Status, as one of the ‘Red Lines’ upon which agreement must be agreed before negotiations proceed to the next stage, the trade relationship between the UK and Europe.

Given that Prime Minister Theresa May is constrained by reliance on DUP votes to maintain her party in power, this is a way that Special Status for Northern Ireland could occur. Unionists are opposed to Special Status as creating a barrier between themselves and the UK, while it is universally advocated on the Nationalist side. But they could hardly withdraw from the ‘Confidence and Supply’ agreement with the Conservatives on the issue of giving the Northern Ireland democracy a say on a matter of such crucial importance—particularly as Northern Ireland voted to remain in the EU in the UK referendum of June 2016.

However, is such a referendum on Special Status desirable?

In a Special Issue in January 2017, this magazine took the view that, rather than relying on constitutional novelties, people in Northern Ireland should be allowed to experience the reality of separation from the EU—the ‘hard border’ in Ireland—before being asked to vote on Irish unity.

However, that is a cumbersome approach in the sense that Ireland—as the EU country with a land frontier with the UK—would be required to erect an expensive Border apparatus on the island, an infrastructure that would not be required if a majority in Northern Ireland decided to remain in Europe.

That said, however, Ireland will undoubtedly have to regulate an EU external Border with Britain, regardless of whether it falls across the island or in the middle of the Irish sea.

Some years ago Athol Books published The Economics Of Partition, which showed that Northern Ireland formed part of the British capitalist market and concluded that there was a corresponding political expression of that interest. Things have changed a lot since then: the heavy industry which characterised the North, an industry for which the British market was an essential, has been decimated. The Northern Ireland economy is now tailored to the larger European market: agriculture springs to mind here, but there are also other areas. Undoubtedly any new edition of that book would see a very different picture.

The essential point remains that the people of Northern Ireland are entitled to vote on whether to remain in the EU—and thus leave the British polity. Such a vote may overlap the national division in the North but it also transcends it. Many European nationals have made their homes in Northern Ireland and there may be sections of the Protestant nationality which see their interests better served in Europe.

A Border Poll—as provided for under the Good Friday Agreement—should be held not long after the UK has formally left the EU.

While there may be diehard Unionist satisfaction at new barriers being erected against the Republic of Ireland, that emotion is matched by Nationalist anger—low-key at present, but bound to rise.

If an arrangement for this division to be measured by objective voting is not made now, there is likely to be civil unrest in connection with Brexit. Chris Hazzard, the Westminster Sinn Fein MP, has predicted that any attempt to impose a ‘Hard Border’ across the island of Ireland will be met by civil disobedience. In response, Unionists point out that such a movement in 1969-70 led to armed struggle.

While a full-scale war about the EU/UK Border looks unlikely at this stage, there is no doubt that things could get messy if no avenue of political remedy is provided to those who are being subjected to the constitutional injustice—as they see it—of eight DUP MPs creating a Hard Border in Ireland.