Newton Emerson: Bertie’s Border solution is worth considering

Any "hardware" at the Border due to Brexit will provoke widespread civil disobedience, a Sinn Féin MP has warned.

Chris Hazzard, who was Northern Ireland’s infrastructure minister before Stormont collapsed, issued the warning at a Westminster press conference while presenting his party’s legal advice on EU special status.

Hazzard made the interesting observation that all warnings to date about trouble on the Border have focused on violent attacks by dissident republicans.

“But it is wider than that,” he continued. “It goes right down to a feeling of civil disobedience. When you talk to normal people in civic society, they are very, very angry and frustrated at even the thought of a customs post going up. So I think you will see widespread distaste for any notion of a hardened Border, and I mean that from civic society. That’s the strength of feeling from it.”

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Danny Morrison, the former Sinn Féin publicity director, hinted at something similar shortly after the EU referendum, when he said that if he was asked for his passport at the Border, he would simply refuse to comply.

The prospect of passport checks soon faded and Morrison’s remark was forgotten. By resurrecting the idea around customs checks, Hazzard is making an original point.

“Civil disobedience” implies something more principled and less aggressive than conventional acts of vandalism or smuggling.

Few things challenge a modern state quite like peaceful petit-bourgeois rebellion. There is no way to crack down on it without making matters infinitely worse

It is hard to see what this would entail for most people at even the hardest frontier envisaged in Ireland, as checks and inspections would apply only to a small percentage of commercial vehicles.

Never enforced

In theory there should be post-Brexit customs procedures and personal goods allowance for individual cross-Border travellers – but in theory these exist already, even for journeys within the island of Ireland. In practice they are never enforced and it is notable that nobody is suggesting they ever will be.

Only farmers, hauliers and other businesses face new rules of a kind they might nobly disobey, yet businesses are considered so obedient that the British proposal for the Border is to give all enterprises – farmers included – trusted-trader certificates and let everybody mark their own homework.

If Hazzard is right and a serious number of such people are ready for open revolt, it would be a potent and extraordinary development.

Few things challenge a modern state quite like peaceful petit-bourgeois rebellion. There is no way to crack down on it without making matters infinitely worse, as Madrid has just demonstrated in Catalonia.

What the state usually does is retreat as quietly as possible before its authority is further compromised. We had a minor but tellingly pre-emptive demonstration of this in Northern Ireland in 2004, when a strike caused a lengthy backlog at vehicle test centres.

Faced with the certain knowledge that almost everyone would drive around illegally regardless, the government declared that vehicle testing – supposedly a matter of life and death – was a mere nuisance that could be safely ignored until the backlog was cleared, which took two years.

Will enough people keep driving over the Border to pose a challenge to authority, as Hazzard suggests?

It seems unlikely for the vast majority of businesses, as they are under so much pressure to obey the law and are so vulnerable to enforcement if they break it.

However, it is easier to imagine networks of sole traders taking a different view, particularly in nationalist Border communities (as nearly all Border communities are) and of this developing a momentum, or at least capturing the popular imagination.

Fudge the Border

What Sinn Féin may not have grasped is how the British and Irish governments would react to the prospect of civil disobedience.

Nothing inspires you to turn a blind eye like the threat of a poke in the eye

Rather than switching from a physical Brexit border to a formal special-status non-border, they would be strongly motivated to fudge the Border. As Bertie Ahern predicted this week, this could mean “making technology work in most cases and throwing a blind eye to those areas that can’t come within technology”.

The former taoiseach specified “multinationals” as responsible for the bulk of Ireland’s trade and amenable to technological solutions, with virtually everything else going ignored.

Nothing inspires you to turn a blind eye like the threat of a poke in the eye, which is what civil disobedience amounts to from an official perspective.

Ahern’s views are heresy to the Irish Government’s current negotiating position and would presumably be a tough sell to the rest of the EU, especially if the frontier was left wide open to farmers. However, Ahern did not envisage this being a long-term problem. Civil disobedience could be just the excuse required to avoid antagonising Border communities with physical infrastructure. Every EU capital, except Madrid, understands the practical limits of state power.

This is the paradox of Hazzard’s warning. The risk of civil disobedience may be not so much a threat to Brexit as a solution to Brexit. It is the practical justification for an invisible Border, whatever form Brexit takes.