British Civil Liberties

Because British civil liberties are based on common law, rather than in formal legislation, in times of perceived crisis the Parliament can enact emergency legislation powers as it deems necessary, without being constrained legally or constitutionally.
Legislatively, Northern Ireland has been in a state of emergency since its formation. A year after partition, Parliament passed the Civil Authorities (Special Powers) Act of 1922. This and subsequent emergency legislation were succeeded by the Northern Ireland (Emergency Provisions) Acts of 1973, 1978 and 1987, and the Prevention of Terrorism (Temporary Provisions) Acts of 1974 and 1989. Michael Freeman relates the introduction of emergency powers legislation to four phases in British counter-terrorism efforts in Northern Ireland: internment without trial, Diplock courts, criminalization and the super-grass system (Freeman, 2003). The policies associated with each essentially extended a de facto separate legal system created for dealing with individuals accused of terrorist offenses.

Internment without Trial

Internment without trial, authorized by the Civil Authorities (Special Powers) Act of 1922, had been used effectively in Northern Ireland by the British in dealing with internal security threats in 1922-26 following the partition and the Irish Civil War, 1939-44 during World War II, and 1956-62 during IRA’s Border Campaign. In each of these cases it was applied almost exclusively against Catholics.
Tactically, internment was ineffectual in diminishing IRA activity. As quickly as suspected IRA members were taken off the street, additional volunteers took their places. Indeed, shortly after the introduction of internment, Republican News carried an article in which the Provisionals gloated over this fact: ‘The Republican movement in Belfast extends to her Majesty’s forces their heartfelt thanks for the magnificent recruiting drive that they have held on our behalf’ (9 October 1971). Politically, internment was a disaster for the British and a blessing to the republican movement.

Because of the perceived sectarian nature of internment, it further alienated the entire nationalist community from the state and its security forces, and in the process garnered support in Catholic neighborhoods for the IRA. As Ó Dochartaigh notes, “The comprehensive alienation of huge sections of the Catholic community from the state had the effect of transforming the Republican movement from a small, marginal and conspiratorial group of individuals…into a major force within the Catholic community”. Its indirect effects were also far-reaching. It was in the context of the Northern Ireland Civil Rights Association march against internment on Sunday 30 January 1972 that British troops killed over a dozen unarmed demonstrators, and it became known as Bloody Sunday. Because of Bloody Sunday, the IRA’s ranks swelled with willing volunteers, some of them reasoning “you were going to be shot anyway so you might as well be shot for something as for nothing” (Ó Dochartaigh, 2005).

Although the military operations that resulted in the tragedy of Bloody Sunday were not a counter-terrorism operations per se, they resulted from a chain of causations extending back to military enforcement on internment without trial in using troops that have been trained to kill enemy combatants in civilian settings.

Diplock Courts

In light of the deteriorating security situation following Bloody Sunday, Parliament commissioned Lord William Diplock to issue recommendations concerning more effective ways of combating IRA terrorism. Aware that Protestant and Catholic juries were prone to render sectarian verdicts, and that ordinary jurors were vulnerable to intimidation by paramilitaries, he recommended that trial by jury be suspended in favor of hearings before a tribunal of judges. This recommendation was formalized in the Northern Ireland (Emergency Provisions) Act of 1973, which also granted the security forces wide powers of arrest and detention. Individuals could be arrested even when no specific crime was suspected, and could be held for extended periods of time for in-depth interrogation. The prosecution could give as evidence any statement made by the accused while in detention, an apparent necessity in a context in which witnesses might be reluctant to testify in court, but also a policy that seemed tailor-made for widespread abuse by the security forces. Complaints that confessions were obtained through the use of torture were common and often corroborated by compelling evidence.
Criminalisation
In June 1972 the British government introduced special category status for paramilitary prisoners, thereby acknowledging the political nature of their offenses. Such prisoners were permitted to wear their own clothes, to associate with other prisoners and were exempt from the work required of prisoners incarcerated for criminal offenses. In March 1976 their special category status was withdrawn as the British government introduced its related policies of ‘Ulsterisation’ and ‘criminalization’. Ulsterisation meant giving the locally recruited RUC (Royal Ulster Constabulary) the day-to-day responsibility for security in Northern Ireland. This amounted to an important shift in counter-terrorism strategy. With the introduction of Ulsterisation the conflict would be conceptualized as an internal security problem to be dealt with by law enforcement agencies. The RUC was given additional men and equipment, whereas the army was relegated to its original role of merely assisting the civil authorities.
Criminalization meant ending special category status for paramilitary prisoners. Henceforth they would be treated as ordinary criminals. As Margaret Thatcher later explained, ‘We are not prepared to consider special category status for certain groups of people serving sentences for crime. Crime is crime is crime. It is not political, it is crime.’ To the extent that paramilitary prisoners were incarcerated for their violent deeds rather than for their political beliefs, she had a point. But her insistence that ‘there is no such thing as political murder, political bombing or political violence. There is only criminal murder, criminal bombing and criminal violence’ conveniently overlooked the fact that the hunger strikers had been convicted under legislation stemming from the Prevention of Terrorism Act (1974) that had defined terrorism as ‘the use of violence for political ends’ (Neumann, 2003). In addition, it was in response to the withdrawal of special category status that the blanket protest, dirty protest and hunger strikes were undertaken by republican prisoners in the first place, suggesting that much republican paramilitary violence was indeed politically motivated.
Supergrass Trials
By the early 1980s, nationalist outrage, following negative publicity connected with the interrogation procedures used on suspected terrorists, convinced British authorities of the need for a different method of obtaining convictions. If confessions from suspected terrorists could not be obtained through coercive means, then security forces would find other suspects who would implicate their former associates in exchange for reduced prison sentences or immunity from prosecution. Beginning in 1981, British authorities staged ‘super-grass’ trials in Diplock courts. ‘Grasshopper’ was British slang for an informer, and a particularly well-placed informer was a ‘super-grass’. In 1981, super-grass Christopher Black gave statements which led to thirty-eight arrests. Based on his testimony, twenty-two members of the Provisional IRA were convicted and sentenced. The last super-grass trial concluded in December 1985. By the time it ended, some 500 persons had been charged on the word of twenty-seven super-grasses (Bonner 1988). Because many of the informers were of questionable credibility, super-grass trials turned out to have questionable judicial value. Of the 217 defendants in the first ten super-grass trials, 120 were found guilty. Of these, sixty-seven convictions were overturned on appeal. Although in the short-term they succeeded in taking suspected terrorists out of circulation, they also had the long-term effect of further eroding confidence in the judicial system among ordinary citizens. 

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