Security Legislation

From 1969 to 1972 little reform of repressive law took place. In fact, the corpus of such legislation expanded. Only in 1973 was the cornerstone of settler security law, the Special Powers Act, finally abolished. Yet the act was quickly replaced with the 1973 Emergency Provisions Act (EPA) and the 1974 Prevention of Terrorism Act (PTA).^[71] Passed in the wake of the worst year of political violence in the province (1972), the EPA applies solely to Northern Ireland. The abrupt enactment of the PTA in one day was precipitated by the bombing of a Birmingham pub in November 1974 that left twenty-one persons dead.

Ostensibly temporary measures, these acts have been renewed annually and biannually by Westminster, often with little debate.^[72] The official rationale for the laws is their absolute necessity to protect the public; the exclusion of Ulster's insurgency from mainland Britain; and the need for an alternative to the restrictions the ordinary criminal law places on the counterinsurgency effort.^[73] That the scope of the security laws might exceed the province's requirements was acknowledged by a former Secretary of State: "I know also that there is a sort of inertia about these matters. It is easier to continue to shelter behind these powers than to determine at a certain point that they are dispensable."^[74]

In some respects the EPA and PTA are reminiscent of the Special Powers Act:

[70] For an elaboration of this argument, see my article, "Policing a Divided Society: Obstacles to Normalization in Northern Ireland," Social Problems 33, no. 1 (October 1985).

[71] The EPA was amended in 1975, 1978, and 1987; the PTA was amended in 1976 and 1984.

[72] Bipartisan support for the acts finally ended in March 1983 when the Labour party voted against renewal of the PTA (which a Labour Government had introduced in 1974). Labour's 1983 election manifesto called for repeal of the PTA and reform of the Diplock courts. In July 1984 Labour voted against the EPA for the first time on the grounds that necessary amendments had not been made.

[73] On the content of the relevant Commons debates, see Matthew Lippman, "The Abrogation of Domestic Human Rights: Northern Ireland and the Rule of British Law," in Terrorism in Europe, ed. Y. Alexander and K. Myers (London: Croom Helm, 1982).

[74] Humphrey Atkins, Great Britain, House of Commons, Debates, vol. 995, 10 December 1980, col. 1030.

• they abolish jury trials in security cases, place the burden of proof on the accused for possession of firearms or explosives, and make bail virtually impossible to obtain;

• extend powers of warrantless search, seizure, arrest, and detention by the army (for up to four hours) and by the police (for up to seven days), and allow security forces to stop and question any individual believed to be connected with "terrorist incidents";

• proscribe organizations "connected with terrorism" and prohibit membership in, recruitment for, and support of such organizations;

• authorize the British Home Secretary and the Northern Ireland Secretary of State to exclude individuals from Britain and Ulster if they are "satisfied" that the person is or may become connected to terrorism.

Until it was amended in 1987, the EPA did not require officers to have "reasonable suspicion" that an offense had been committed to justify arrest, search, or seizure; mere suspicion was sufficient; constables and soldiers did not have to justify their decisions. As Colonel Robin Evelegh revealed, "The vast majority of those arrested by the Army in Northern Ireland were arrested without being suspected of anything except in the most general sense."^[75] This carte blanche allowed authorities to detain, interrogate, and release without charge about 50,000 individuals since 1973. (The proportionate number of the United States' population would be 6.8 million.)

The RUC and army routinely use arrest and interrogation to harass suspects, gather intelligence, and develop informers.^[76] Between 1978 and 1986 only 13.7 percent of those arrested under the EPA were charged with an offense (in Britain, 80 to 90 percent of persons arrested in ordinary criminal cases are charged). The other 86.3 percent were interrogated and released. A study of detentions in 1980 found that interrogators sought information about detainees' movements, political sympathies, associates, and families; only 28 percent of these individuals were questioned about a specific offense.^[77] The study concludes that the powers of arrest and interrogation are used deliberately for "intelligence gathering, surveillance, and harassment": interrogation is designed to generate dossiers on individuals and to deter them from

[75] Robin Evelegh, Peace-Keeping in a Democratic Society: The Lessons of Northern Ireland (Montreal: McGill-Queens University Press, 1978), p. 120.

[76] The last purpose is cited in ibid., p. 75.

[77] Dermot Walsh, The Use and Abuse of Emergency Legislation in Northern Ireland (London: Cobden Trust, 1983), pp. 33, 69.

supporting radical political causes.^[78] The importance of detention and interrogation is evident in the RUC's growing use of the seven-day power under the PTA instead of the three-day power under the EPA.^[79] The lengthier detentions "allow the police to exercise greater pressure on suspects to confess or cooperate"^[80]

Northern Ireland differs from postsettler Zimbabwe and Liberia in that peaceful political opposition is not branded subversive and suppressed. Even groups with connections to insurgent organizations and thus on the borderline of violence—Sinn Fein, Ulster Defense Association—are legal, albeit frequently harassed by the authorities. Groups with an incontrovertible record of violence, however, are proscribed under the security legislation; they include the Irish Republican Army, Irish National Liberation Army, Ulster Volunteer Force, and Ulster Freedom Fighters. The EPA allows the police to arrest anyone suspected of membership or general "involvement" with proscribed organizations.^[81]

Under the EPA, the cases tried in special Diplock courts are those of "scheduled offenses" connected to political crimes; one judge presides without a jury. From 1980 through March 1989, 93 percent of the 5,774 defendants tried in these courts were convicted (82 percent had entered guilty pleas, up from 56 percent in 1973). (Confessions admitted as evidence in Diplock courts need not be corroborated by other evidence.)^[82] Of the cases where defendants pleaded not guilty, 39 percent were acquitted, down from 57 percent in 1973.^[83] The declining acquittal rate may indicate a "hardening" of the judges involved, who hear many

[78] Walsh, Use and Abuse, p. 39; cf. Kevin Boyle, Tom Hadden, and Paddy Hillyard, Ten Years On in Northern Ireland: The Legal Control of Political Violence (London: Cobden Trust, 1980).

[79] The seven-day power was used in 7 percent of the arrests under the two acts in 1979, and approximately 50 percent in 1984.

[80] Steven Greer, Tom Hadden, and Martin O'Hagan, "Arrest and Screening," Fortnight, 18 February 1985, p. 6.

[81] By infringing freedom of association and expression, the banning of organizations arguably goes further than necessary to control the undesirable activities of the members of these groups (see Committee on the Administration of Justice, Emergency Laws: Suggestions for Reform in Northern Ireland, pamphlet no. 5 [Belfast: CAJ, September 1983], p. 10). The British Government has equivocated on the issue of proscribing organizations; in 1974 it lifted the ban on Sinn Fein and the Ulster Volunteer Force, and countenanced the view that individual offenders would be pursued instead of organizations (see the statement by Secretary of State Merlyn Rees, House of Commons, Debates, vol. 871, 4 April 1974, col. 1476).

[82] A recent review of the EPA recommended that confessions be tape-recorded to ensure their voluntary character ([Baker Report] Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978, Cmnd. 9222 [London: HMSO, April 1984], Sir George Baker, Chair).

[83] NIO figures, cited in Belfast Telegraph, 1 November 1989; 1973 figures are from Walsh, Use and Abuse, p. 94.

similar cases without the check of a fresh jury to evaluate each one. This arrangement increases the chances that the accused will be wrongfully convicted.

Despite the fact that Diplock courts show no systematic religious bias in the decisions rendered, they remain highly controversial among Catholics and seem to have affected the standing of the legal system as a whole (see Table 9).^[84] It is widely believed that public confidence could be restored only if the Diplock courts were reformed or abolished.

A relatively recent experiment in these courts was the "supergrass" system, which relied on the uncorroborated testimony of informers to convict individuals accused of political offenses. From 1981 to 1983, 450 people were arrested and charged with terrorist-related offenses on the evidence of 18 Republican and 7 Loyalist supergrasses. The police granted immunity to about half of the supergrasses in return for their testimony, and several received generous monetary payments as well.^[85] An independent investigation by Lord Gifford concluded that the use of uncorroborated evidence had led in some cases to the conviction of innocent persons.^[86] The supergrass system was abandoned at the end of 1986 after the acquittal of a number of defendants on grounds of the informers' lack of credibility.

Persons arrested under the PTA have no right of habeas corpus, are not informed of the charges against them, and have no right to remain silent or to appeal decisions. Abridging the standard right to freedom of movement within one's country, exclusion orders banish suspected terrorists from one part of the United Kingdom to another (most exclusions are from mainland Britain to Ulster). In Britain from 1974 to 1986, 6,246 were detained under the PTA, of whom 4.5 percent received exclusion orders and 8.5 percent were charged with an offense. Of the 7,627 detentions in Ulster between the end of 1974 and July 1987, 31 individuals were given exclusion orders and 2,462 (32 percent) were charged with an offense.

The Shackleton Report on the PTA excused its low rate of exclusions and charges by celebrating "the preventative nature of the legislation in its widest aspects."^[87] Another official justification for exclusion is that it

[84] Boyle, Hadden, and Hillyard, Ten Years On, p. 86.

[85] Secretary of State, Irish Times, 27 February 1985.

[86] Tony Gifford, Supergrasses: The Use of Accomplice Evidence in Northern Ireland (London: Cobden Trust, 1984), p. 34.

[87] [Shackleton Report] Review of the Prevention of Terrorism (Temporary Provisions) Acts, Cmnd. 7324 (London: HMSO, August 1978), Lord Shackleton, Chair.

is necessary when charges cannot be brought against those suspected of planning acts of terrorism in Britain.^[88]

Some have objected to the principle of exclusion or internal exile, noting that this special treatment belies the official position that Ulster is an integral part of the United Kingdom. Others consider it simply unnecessary: the authorities issued exclusion orders (from Britain to Ulster) against only fourteen persons in 1983, two in 1984, and four in 1985, suggesting that it was "no longer of any great significance in the prevention of terrorism."^[89] But the act has been used to induce information from persons with Irish backgrounds and "to severely limit the activities of legitimate groups campaigning on Irish issues in mainland Britain."^[90]

The powers contained in the existing security legislation constitute some improvement—in terms of human rights and the rule of law—over the Special Powers Act of the Unionist state. The current legislation no longer defends a system of sectarian power and privilege. In marked contrast to the regime in Zimbabwe, the British Government has shown a willingness to drop certain provisions of the security law as a result of pressure from opposition parties at Westminster or of recommendations from independent review commissions. But several other provisions arguably overstep what circumstances in the province warrant. In the area of legislation, the net effect of British rule is limited liberalization. The same diagnosis applies to the system of accountability.