Mechanisms of Accountability

Inasmuch as executive departments in Ulster are now answerable to Westminster, formal British involvement is an improvement on the old settler state. But apart from crises, the British Cabinet assigns low priority to Northern Ireland, and Westminster shows little interest in the problem: Parliament's review of the security laws has rarely been more than perfunctory.

[88] Penny Smith, "Emergency Laws and the Prevention of Terrorism Acts," in Securing the State, ed. P. Hillyard and P. Squires, European Group for the Study of Deviance and Social Control, Working Papers in European Criminology, no. 3 (1982), p. 222. See also Catherine Scorer and Patricia Hewitt, The Prevention of Terrorism Act: The Case for Repeal (London: National Council for Civil Liberties, 1981).

[89] Times, 8 December 1988.

[90] Standing Advisory Commission on Human Rights, Annual Report for 1984–1985 (Belfast: HMSO, 1985), p. 23.

One abortive experiment in local democracy and accountability was the Northern Ireland Assembly, which operated from 1982 to 1986. Although it had a narrow advisory role, the Government accepted approximately 75 percent of its recommendations.^[91] In the area of security, however, despite its frequent and impassioned debates, the Assembly had little influence. A Security and Home Affairs Committee was limited to making recommendations and ventilating local concerns over security problems; it was generally disregarded by the Government, as a NIO official confided: "We regard the Committee as something that has to be quieted down rather than something that has to be taken seriously."^[92] Boycotted by the SDLP and Sinn Fein and sometimes the scene of unruly Unionist theatrics over unmet demands, the Assembly was dissolved in June 1986 by the British Cabinet amid protests from the Unionist parties.

In the field of criminal prosecution, a new office of Director of Public Prosecutions (DPP) was established in 1972, following recommendations of the Hunt Committee and the report of a working party on public prosecutions. According to one former minister, the DPP's office was designed so that it would "not be open to the same allegations of bias" that were leveled at the previous system of police prosecution.^[93] The DPP is responsible for the prosecution of all cases of serious crime in which the police have decided to prefer charges and determines whether complaints against police justify criminal charges. In his first and primary responsibility, the DPP has proven to be a valuable corrective in bringing about more impartial treatment of Loyalist and Republican suspects.^[94]

The DPP's role in improving police accountability is less clear, since his decisions to prefer charges against officers depend mainly on prior police investigation. The DPP has prosecuted few officers accused of misconduct and has consistently refused to disclose the reasons behind his decisions. Yet the DPP's involvement does introduce a check into the old system under which police investigated themselves.

The response of the police to citizens' complaints has been a chronic problem in Northern Ireland. The difference between the number of

[91] Secretary of State Tom King, Great Britain, House of Commons, Debates, vol. 99, 19 June 1986, col. 1202. Cf. Brigid Hadfield, "The Northern Ireland Assembly," Public Law (Winter 1983): 550–57, and Northern Ireland Assembly, Local Democracy at Work (Belfast: HMSO, 1984). Almost all the Assembly's sitting members were Unionists; fourteen SDLP and five Sinn Fein members boycotted the Assembly from its inception.

[92] NIO official, Law and Order Division, interview with author, 16 August 1984.

[93] Lord Windlesham, Minister of State at NIO, Irish Times, 2 May 1972.

[94] Boyle, Hadden, and Hillyard, Ten Years On, p. 68; Fortnight, September 1983.

complaints registered and those that are substantiated by the police authorities has been high but relatively constant from 1982 through 1988. In 1985, for example, 51 complaints were substantiated out of a total of 3,237 complaints registered (1,349 complaints were withdrawn or not proceeded with).^[95] An unknown proportion of the complaints registered every year consists of attempts by Republicans to undermine public confidence in the force or tie up police resources, but the Bennett Committee of Inquiry found that such malicious motives "can scarcely account for the volume of complaints" registered.^[96] Changes over time in the number of complaints registered may reflect, inter alia, fluctuations in complaint-provoking conduct by officers, but one independent body concluded, "No clear explanation has emerged."^[97]

Attempting to build public confidence, a Police Complaints Board was created in June 1977 to oversee complaints of disciplinary (not criminal) breaches by officers. Between 1977 and 1981, the board received a total of 2,895 complaints. In only 21 cases (0.7 percent) did it disagree with the decision of the Deputy Chief Constable not to prefer disciplinary charges. Continuing public dissatisfaction over the handling of complaints led to the replacement of the Police Complaints Board in February 1988 with an Independent Commission for Police Complaints, which has an enhanced role in investigating cases.

A substantial number of complaints registered in the 1970s stemmed from allegations of assault under police custody and mistreatment during interrogations. This problem was the focus of several official investigations. The Compton Commission concluded that "physical illtreatment" had occurred during prolonged police questioning.^[98] Hooding, noise treatment, threats of violence, and forced standing for prolonged periods were among the techniques used to extract information or confessions. From 1976 to 1979, ill treatment of suspects in police custody was apparently tolerated by police chiefs and top government

[95] Chief Constable, Annual Report (1985); on the complaints system, see my article, "Accountability and Complaints against the Police in Northern Ireland," Police Studies 9, no. 2 (Summer 1986): 99–109; for England, see Steven Box and Ken Russell, "The Politics of Discreditability: Disarming Complaints against the Police," Sociological Review 23, no. 2 (May 1975): 315–46.

[96] [Bennett Committee] Report of the Committee of Inquiry into Police Interrogation Procedures in Nortbern Ireland, Cmnd. 7497 (London: HMSO, March 1979), Judge Bennett, Chair; p. 112.

[97] Police Complaints Board, Annual Report for 1985, p. 3.

[98] [Compton Commission] Report of the Enquiry into Allegations against the Security Forces of Physical Brutality in Northern Ireland Arising out of Events on the 9th August 1971, Cmnd. 4823 (London: HMSO, November 1971), Sir Edmund Compton, Chair.

officials; they had received evidence of brutality from physicians and others.^[99] NIO ministers and police managers insisted that detainees' wounds were self-inflicted, and that allegations of brutality were part of the IRA's propaganda war. Independent investigations found otherwise. In 1978 the European Court of Human Rights ruled that the use of certain interrogation techniques in Ulster constituted "inhuman and degrading punishment";^[100] Amnesty International concluded that "maltreatment of suspected terrorists by the RUC has taken place with sufficient frequency to warrant the establishment of a public inquiry to investigate it."^[101] A subsequent investigation by the Bennett Committee confirmed that suspects had sustained non-self-inflicted injuries in police custody.^[102] After the implementation of most of the committee's recommendations—including television monitoring of interrogations— allegations of mistreatment incustody diminished considerably.

In settings outside the interrogation room, however, allegations of police assault remain high. In 1980, 33.1 percent of the total complaints dealt with by the authorities alleged assault (compared to 19.6 percent in England and Wales); in 1984 the figure was 27.0 percent for Northern Ireland (19.2 percent in England and Wales).^[103]

Another formal mechanism of accountability is the Police Authority (created in 1970). This body is undoubtedly an advance over the Unionist system where the Ministry of Home Affairs was responsible for policing. Its purview might be expected to include the use of undercover specialist police units, the discharge of weapons, and public complaints. But neither controversial incidents nor the causes of recurrent policing problems have been its major concern; it has focused instead on technical and organizational matters.^[104] The authority has the power, which it rarely exercises, to request reports on policing issues from the Chief Constable and can even call for his resignation. On those rare occasions when it has pressed for greater powers—such as its request in 1976 to attend security meetings at the NIO—it has been refused.

[99] Peter Taylor, Beating the Terrorists (Harmondsworth: Penguin, 1980).

[100] European Court of Human Rights, Case of Ireland against the United Kingdom: Judgment, Strasbourg, January 1978, p. 82.

[101] Amnesty International, Report of an Amnesty International Mission to Northern Ireland (London: Amnesty International, June 1978), p. 70.

[102] Bennett Committee.

[103] Standing Advisory Commission, 1984–1985, p. 69.

[104] On the reluctance of English police authorities to exert control over police activities, see M. Brogden, "A Police Authority: The Denial of Conflict," Sociological Review 25, no. 2 (May 1977): 325–49.

The authority maintains that "Northern Ireland has one of the best police forces in the world."^[105] With this assessment and with its highly deferential approach to the police, the authority has understandably had difficulty convincing the public that it is an effective independent check on the performance of the RUC.^[106] A body more representative of the entire community, actively devising policing policies and priorities, and working to identify and solve continuing problems might enhance the RUC's image and accountability.^[107]

The Standing Advisory Commission on Human Rights (SACHR) was created in 1973 to investigate areas in which religious or political discrimination existed and recommend changes to the Secretary of State. Its consistent interest in human rights and impartial orientation have made it something of a "counterweight to sectarian forces."^[108] SACHR's often critical Annual Reports have concerned, inter alia, controversial aspects of security legislation, complaints against the police, the use of firearms by security forces, procedures for police interrogation, and a proposed bill of rights. SACHR has advocated changes in legislation and institutional practices bearing on human rights and has consistently counseled against policy changes that might further erode public confidence in the administration of justice. Under no obligation to accept and implement the commission's recommendations, the Government has accepted some and rejected others over the years. Governmental refusals or long delays in redressing problems usually include explanations of inconvenient timing or competing legislative priorities—reasoning that the commission does not accept.

Other independent bodies, such as the Committee on the Administration of Justice (CAJ) and the National Council for Civil Liberties (NCCL), have issued reports critical of the security laws, the system for handling complaints, plastic bullets, and fatalities caused by the police. Judging by official practices, these reports have had at best a modest impact. Several major commissions have examined institutional practices and security laws. Their reports led to new mechanisms of accountability, but the changes have stopped short of major reforms.^[109] Commis-

[105] Police Authority for Northern Ireland, Report on the Work of the Police Authority for Northern Ireland: 1970–1981 (Belfast: Police Authority, 1982), p. 6.

[106] See Standing Advisory Commission, 1984–1985, p. 29.

[107] See Committee on the Administration of Justice, Police Accountability in Northern Ireland (Belfast: CAJ, 1988).

[108] Paul Maguire, "The Standing Advisory Commission on Human Rights," Northern Ireland Legal Quarterly 32, no. 1 (Spring 1981): 53.

sions of inquiry have, for example, not questioned the need for emergency legislation, the Ulster Defense Regiment, and the Diplock courts.

The judiciary offers a potential check on abuses as it adjudicates cases alleging criminal conduct on the part of the security forces; but the courts' record in controlling such misconduct has been less than impressive. Of the twenty-two members of the security forces prosecuted for killings while on duty, two have been convicted; one received a suspended sentence, and the other served two years of his life sentence.

As a signatory to the European Convention on Human Rights and other covenants, the British Government accepts the principle of international judicial review of human rights. The European Court of Human Rights has heard cases regarding violations of human rights in Ulster, and its adverse decisions have generated modest improvements. London has sometimes derogated from the court's rulings. In 1988 the European Court ruled that the seven-day detention power under the EPA was excessive, but the Thatcher Government opted not to comply with the verdict.

Another international oversight body is the Inter-Governmental Conference established under the Anglo-Irish Agreement of November 1985, with the Dublin Government acting on behalf of the Catholic minority. Law and order issues have featured prominently in discussions between British and Irish representatives. Thus far, the British Government has responded favorably to some Irish proposals, for instance, Dublin's objection to reintroducing internment without trial. In contrast, suggestions to reform Diplock courts—introducing juries or replacing a single judge with three—or to disband the UDR were flatly rejected by the British authorities.

The preceding discussion has focused primarily on mechanisms of oversight within the state. The question of civic accountability— whereby state agencies respond to representatives of leading social institutions—is a separate issue. It is especially problematic in deeply divided societies: a body committed to democratic accountability might find itself torn by the conflicting demands of a divided public and thus wholly ineffective. Ideally, oversight agencies would be maximally depo-

[109] See the reports of the Gardiner Committee (1975), the Bennett Committee (1979), and the Baker Commission (1984); see also Gavin Drewry, "Judges and Political Inquiries: Harnessing a Myth," Political Studies 23, no. 1 (March 1975): 61; Boyle, Hadden, and Hillyard, Law and State, pp. 126–30.

liticized and composed of responsible members of the community; but in Northern Ireland enticing such persons to serve on bodies like the Police Authority has proved difficult, either because insurgent organizations have issued threats to members or because potential members consider such agencies to be illegitimate or cosmetic.

On balance, the structure of accountability that has been built since 1972 is a clear departure from the settler era, but additional checks would enhance the overall accountability of the security sector. The courts, independent commissions, and oversight bodies have not adequately scrutinized some of the most controversial activities of the security forces. Moreover, when human rights organizations and other bodies have questioned practices such as the use of plastic bullets and the so-called shoot-to-kill tactic, corrective action by the authorities has been difficult to discern.