Ulster's System of Law and Order

Rhodesia's internal security system evolved gradually after 1923 to preempt the rise of African opposition but was galvanized as nationalist opposition intensified after 1958 (discussed below); Northern Ireland laid the institutional foundations of its security system in the settler regime's first year, at the height of political violence. Both cases lend support to Alves's argument that "the character of the national security state can only be understood in relation to its interaction with ... opposition movements in civil society."^[38] Alves's argument exaggerates, however, the role of opposition movements in two respects. First, the development of a repressive internal security enterprise does not logically require manifest opposition but may be designed to prevent its growth. Second, in a nation where civil society is undeveloped, the impact of opposition forces is understandably much less salient than in nations (such as Bra-

[34] Cyril Rogers and Charles Frantz, Racial Themes in Southern Rhodesia (New Haven: Yale University Press, 1962), pp. 90–94.

[35] On the role of the mining compound system in subduing African workers, see Duncan Clarke, "African Mine Labourers and Conditions of Labour in the Mining Industry in Rhodesia, 1940–1974," Rbodesian Journal of Economics 9 (December 1975): 177–218, and van Onselen, Chibaro .

[36] Richard Gray, The Two Nations (London: Oxford University Press, 1960), p. 167; Terence Ranger, Crisis in Southern Rhodesia (London: Fabian Commonwealth Bureau, 1960), p. 12.

[37] Bowman, Politics in Rhodesia, p. 16.

[38] Alves, State and Opposition, p. 9.

zil, the Philippines, or South Korea) where civic institutions provide a rich source of resistance to repressive policies.

Northern Ireland's internal security institutions were from the beginning blatantly sectarian in outlook and operation: security powers were vigorously applied to Catholics, whose slightest protest was defined as "treachery," while Protestant political crime was treated leniently or with impunity, under the rubric of "Loyalist activity."^[39] According to Farrell, "The Unionists did not accept the basic assumption of British democracy—that the public administration and the security forces should be neutral between the contending parties in the state."^[40] "Between 1920 and 1968," writes O'Dowd, "Unionist 'law and order' remained inviolate from the modernization of repressive apparatuses in Britain."^[41] Had the regime taken steps to reduce the security system's sectarian orientation, it might have signed its own death warrant, for such action would have violated the raison d'être of the settler state: namely, the defense of specifically Protestant interests. As in Rhodesia, the hegemonic forces within the dominant caste never accepted that their long-term interests might best be served by some accommodation with the subordinate community; they conceived power as a zero-sum matter, ruling out concessions. In this deeply divided society, the settler community would almost certainly have defined universalistic enforcement of law and order as betrayal and resisted it—precisely what has occurred since 1972 under the more modernized security system imported into Northern Ireland by the metropole, as Chapter 7 shows.

During the formative years of the new state, grass-roots Protestant pressure was an important catalyst in the creation of a political and security system that would tolerate no opposition from the Catholic minority.^[42] Protestant supremacist forces were particularly influential in the passage of the draconian 1922 Special Powers Act and the creation and preservation of the sectarian, paramilitary Ulster Special Constabulary. Popular Protestant demands were generally consistent with the Government's interests in the development of repressive security policies and institutions: the Unionist regime sought to maximize its control over the minority, nurture Protestant solidarity, perpetuate the party's incum-

[39] Buckland, Factory of Grievances, pp. 200, 206.

[40] Farrell, Arming, p. 278.

[41] Liam O'Dowd, "Shaping and Reshaping the Orange State," in L. O'Dowd, B. Rolston, and M. Tomlinson, Northern Ireland: Between Civil Rights and Civil War (London: CSE Books, 1980), p. 21.

[42] This is amply documented in Farrell, Arming .

bency, and achieve the level of stability required to keep the British Government at bay.^[43]

These interests shaped the development of the core executive organizations, ranging from the Cabinet to the various security agencies. Former British Prime Minister James Callaghan once wrote that he "found it difficult to take seriously the idea that the Northern Ireland Cabinet and Prime Minister bore any resemblance to what we in Britain understood by those offices."^[44] Like Unionist MPs, almost all Cabinet ministers were members of the bitterly anti-Catholic Orange Order and they were sometimes unabashed in expressing their sectarian, antiCatholic views.^[45] The first prime minister, James Craig (1921–1940), proclaimed: "All I boast is that we have a Protestant parliament and a Protestant state."^[46] The third premier, Basil Brooke (1943–1963), cautioned against employing Catholics and declared, "Ninety-seven per cent of Roman Catholics are disloyal and disruptive."^[47] Such views colored the thinking of the Cabinet and other state elites at least until the late 1960s.^[48] Generally, the more moderate Cabinet members were eclipsed by hard-liners, but the moderates sometimes tempered extreme policies that might have invited problems with the British Government.^[49]

The Ministry of Home Affairs was the center of gravity within the security establishment. In league with top police officials, it was instrumental in shaping a sectarian security policy, targeted almost entirely against Catholics.^[50] In addition to policing, the ministry had responsibility for the controversial areas of local government, electoral affairs, and general law and order. Those in charge of Home Affairs were strident defenders of Protestant and Unionist interests. The first Permanent Sec-

[43] Bew, Gibbon, and Patterson, The State, pp. 131ff.

[44] Callaghan, House Divided, p. 77.

[45] From 1921 to 1969, 138 out of 149 MPs were Orangemen (Edmund A. Aunger, In Search of Political Stability: A Comparative Study of New Brunswick and Northern Ireland [Montreal: McGill-Queens University Press, 1981], p. 123).

[46] Quoted in Michael Farrell, Northern Ireland: The Orange State (London: Pluto, 1976), p. 92.

[47] Quoted in Geoffrey Bell, The Protestants of Ulster (London: Pluto, 1976), p. 40.

[48] "Councils of moderation and conciliation for their own sake were almost unknown among the Unionist leaders and, without strong and persistent outside pressure, the pragmatic elements had no incentive to urge conciliatory policies" (Farrell, Arming, p. 280). See also Buckland, Factory of Grievances, p. 22; Derek Birrell and Alan Murie, Policy and Government in Northern Ireland: Lessons of Devolution (Dublin: Gill and Macmillan, 1980), p. 142; C. E. B. Brett, "The Lessons of Devolution in Northern Ireland," Political Quarterly 41, no. 3 (July 1970); Patrick Shea, Voices and the Sound of Drums (Belfast: Blackstaff, 1981). In 1972, approximately 85 to 95 percent of the civil servants above the level of deputy-principal were still Protestant.

[49] Bew, Gibbon, and Patterson, The State, pp. 131ff.

[50] Buckland, Factory of Grievances, p. 206.

retary, Samuel Watt, doubted in 1921 whether "it was ever contemplated that these extraordinary powers [in the existing emergency legislation] should be used against those who are loyal to the Crown [i.e., Protestants]."^[51] He suggested that the ordinary criminal law be used against Loyalists. Dawson Bates, minister from 1921 to 1943, regarded all Catholics as fifth columnists, and kept them out of his ministry. All in all, Home Affairs displayed what one historian calls a "contemptuous" attitude and a "hostile spirit" in its dealings with Catholics.^[52]

The top levels of the police were closely linked to the Unionist establishment, and the rank and file fervent defenders of the Protestant state. It is thus not surprising that the Royal Ulster Constabulary and the Ulster Special Constabulary developed a reputation for sectarian law enforcement. Not only did the forces of order operate with bias, but there were no independent mechanisms of accountability.^[53] Completely lacking was a body—representative of the entire community and detached from the Home Affairs ministry—with a mandate to scrutinize contentious police matters and hear public grievances, an entity that seems vital in communally divided societies.

In the event of the slightest hint of unrest, the police were prepared for paramilitary action.^[54] Indeed, the general lack of disorder during the half-century of Unionist rule was in part a function of the fact that "Catholics did not wish to challenge a police force and a para-military service that were ready to die or kill to maintain their constitution."^[55] Members of the Ulster Special Constabulary, in particular, had a reputation among Catholics as state-sponsored Protestant vigilantes. One former Chief Constable told me of the USC's serious problems: "They were not trained in normal policing, were not subject to discipline, and tended to be a law unto themselves."^[56]

One of the first pieces of legislation passed by the new Parliament was the 1922 Special Powers Act (SPA). Its harsh features were officially justified as a welcome departure from Britain's previous "inept" and "vacil-

[51] Watt, quoted in ibid., p. 193.

[52] Ibid., pp. 204, 205.

[53] [Hunt Committee] Report of the Advisory Committee on Police in Northern Ireland, Cmnd. 535 (Belfast: HMSO, October 1969), Lord Hunt, Chair.

[54] Buckland, History, p. 64.

[55] Richard Rose, Northern Ireland: A Time of Choice (London: Macmillan, 1976), p. 16.

[56] Interview with author, 2 August 1984. The USC staffed road blocks, patrolled, guarded public utilities, and assisted in riot control.

lating" security policy in Ireland.^[57] The act's provisions probably went further than necessary even in the midst of the serious unrest and violence of 1922.^[58] It prescribed punishments of whipping and death for the possession or use of explosives or weapons, and the Minister of Home Affairs was given power to issue regulations of wide latitude that were exempt from parliamentary scrutiny and judicial review: to "take all steps ... as may be necessary for preserving the peace and maintaining order." In due course, a host of executive regulations were promulgated. These included, inter alia, police powers of arrest and search without a warrant, the proscription of clubs and organizations, censorship of publications, imposition of curfews, and seizure of property. One sweeping regulation criminalized "doing or attempting any act calculated or likely to cause ... disaffection among the civilian population or to impede, delay or restrict any work necessary for the preservation of peace or maintenance of order."

To cover any unforeseen activities, a blanket provision was included in section 2(4) of the act:

If any person does any act of such nature as to be calculated to be prejudicial to the preservation of the peace or maintenance of order in Northern Ireland and not specifically provided for in the regulations, he shall be deemed to be guilty of an offence against the regulations (emphasis added).

This provision clearly violates the principle of nulla poena sine lege (no crime without violation of a specific law).

During the formative years of the state, the measure was used frequently against suspected Catholic rebels, political opponents, and "innocent and law-abiding people"—but rarely to suppress Protestants' sectarian crimes against Catholics.^[59] The SPA was used to ban Republican publications, proscribe meetings and marches, crush labor protests in the 1930s, intern suspects, and facilitate general police harassment of the Catholic minority.^[60] From 1938 to 1945 and from 1956 to 1961, the

[57] Parliamentary Secretary of Home Affairs, Robert Megaw, Northern Ireland House of Commons, Debates, vol. 2, 21 March 1922, col. 87 (hereafter, Commons Debates ).

[58] Harry Calvert, Constitutional Law in Northern Ireland (London and Belfast: Stevens, 1968), p. 385.

[59] [Cameron Commission] Disturbances in Northern Ireland, Cmnd. 532 (Belfast: HMSO, 1969); Buckland, History, p. 66; Kevin Boyle, Tom Hadden, and Paddy Hillyard, Law and State: The Case of Northern Ireland (Amherst: University of Massachusetts Press, 1975), p. 7.

[60] Farrell, Orange State, p. 94.

act was used for internment without trial. During periods when its use was more restrained, it continued as a general deterrent to organized opposition.

By assenting to the SPA, Stormont in effect surrendered its power to make and revoke security legislation and authorized rule by executive fiat. Although the act was designed as a temporary measure, it was made permanent in 1933, when—paradoxically—serious unrest in the province had long abated. According to Buckland, the timing of its legal entrenchment was an attempt to preempt parliamentary debate over renewal of the act at a moment when Catholic opposition MPs had decided to take their seats at Stormont.^[61] But the official reasoning highlighted the act's effectiveness: the statute was responsible for the peaceful conditions that prevailed and the "slightest relaxation of the law" would enable sinister forces to "plunge this Province into a welter of bloodshed."^[62] A 1936 inquiry by Britain's National Council for Civil Liberties (NCCL) disagreed: "Despite occasional disorders it cannot be said that the special circumstances alleged to have existed when the Act was passed in 1922 prevail today."^[63] By the 1930s, the Irish Republican Army had become a spent force and the external threat from southern Ireland had essentially vanished.

But the act had proven a convenient and effective instrument for disorganizing opposition political forces. The NCCL concluded that "the Northern Irish Government has used Special Powers towards securing the domination of one particular political faction and ... towards curtailing the lawful activities of its opponents." The act had become the keystone of "a permanent machine of dictatorship" in the province.^[64]

If manifest disorder had ceased in the early 1920s, the Government could readily define deep Catholic disaffection from the Protestant state and southern Ireland's irredentist claims to Ulster as latent security threats. Yet those "threats ... had no independent significance" in explaining the character of the political system and the sectarian structure of law and order.^[65] These latent threats interacted with abiding settler interests in upholding Protestant supremacy in the province. Catholic dis-

[61] Buckland, Factory of Grievances, p. 219; Buckland, History, p. 65.

[62] Minister of Home Affairs, Commons Debates, vol. 9, 15 May 1928, col. 1688. The Parliamentary Secretary of Home Affairs made the same argument in 1933 (Commons Debates, vol. 15, 14 March 1933, col. 848).

[63] National Council for Civil Liberties, Report of a Commission of Inquiry Appointed to Examine the Purpose and Effect of the Civil Authorities (Special Powers) Acts (Northern Ireland) 1922 and 1933 (London: NCCL, 1936), p. 24.

[64] Ibid., pp. 39, 40.

[65] Bew, Gibbon, and Patterson, The State, p. 216.

loyalty served Protestant interests insofar as it could be used to remind London of the imperative of "Loyalist" rule in Ulster. MacDonald stresses the functional consequences of Catholic alienation from the state:

Protestants had a vested interest in sustaining the Catholic disloyalty that, first, legitimated Protestant privileges; secondly, accentuated the salience of Protestant loyalty to Britain; and thirdly, provided the threat that maintained Protestant solidarity.^[66]

The exceptional outbreak of disorder that punctuated the half-century of settler rule—such as the abortive IRA insurgency from 1956 to 1962—suggests that the Catholic minority did not threaten security to the extent the Protestant population imagined. In order to end British occupation and to reunify Ireland, the IRA in 1956 launched a campaign of sporadic sabotage and armed attacks. Ultimately the campaign lost momentum for two reasons: it encountered swift police action and it failed to generate support within the Catholic enclave. Catholics were simply not willing to endorse a violent frontal assault on the state. When the IRA called off its campaign in February 1962, it lamented this very lack of popular support: "Foremost among the factors motivating this course of action has been the attitude of the general public whose minds have been deliberately distracted from the supreme issue facing the Irish people—unity and freedom of Ireland."^[67]

The central features of this politico-security system developed in a context of deep communal and political cleavages. The system of majoritarian democracy facilitated the political subordination of the minority—a majority dictatorship under the veneer of British parliamentary democracy. The security sector was well insulated from potential checks both inside and outside the state. And it displayed a patently sectarian slant in defense of the narrow interests of the Protestant community.

The state and its security wing had not only clear sectarian commitments but also the objective capacity to institutionalize them. The first decade of the new state's existence was a history of its successful efforts to secure autonomy from British interference, win the support of the various Protestant classes, extract financial resources from Britain, and

[66] MacDonald, Children of Wrath, p. 24.

[67] Quoted in J. Bowyer Bell, The Secret Army: The IRA (Dublin: Academy Press, 1979), p. 334.

liquidate pockets of violent opposition to the state. Over the next decades, the Unionists were in a good position to maintain Protestant dominant-party rule, cement partition, disorganize both overt Catholic nationalist mobilization and perceived subterranean threats, and satisfy the Protestant electorate. These were simultaneously ends in themselves and means to guarantee a paramount interest: that of the state's very survival. Without autonomy from Britain, an inviolable border, the pacification of Catholic opposition, and broad-based Protestant support, the pillars of the settler power structure would have cracked. In the late 1960s they cracked irreparably, as Chapter 5 shows.