Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987

Review of the Northern Ireland
(Emergency Provisions) Acts
1978 and 1987

Chairman: The Viscount Colville of Culross, Q.C.

Presented to Parliament by the Secretary of State for Northern Ireland by Command of Her Majesty
July 1990

Published in London by,
HER MAJESTY'S STATIONERY OFFICE, 1990

Cmd 1115

ISBN 0 10 111152 5

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I was appointed by the Secretary of State for Northern Ireland in September 1989 with the following terms of reference -

To review the operation of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987, and to consider:
(a) whether any of these temporary provisions can safely be allowed to lapse in 1990;
and taking into account the need to ensure that there are both effective powers to deal with terrorist violence and adequate safeguards for the individual,

(b) what changes to existing provisions should be made when the time comes to replace the two Acts; and

(c) whether it would be appropriate to consolidate into new legislation applying only to Northern Ireland any of the provisions relating to Northern Ireland in the Prevention of Terrorism Act 1989 (either in their present or some modified form);

and to report.

On the first matter, I published a brief report in February which recommended no changes in the Renewal Order for 1990. That Order was made.

Thereafter I embarked upon a process for the "enhanced review", which included three weeks of discussions and interviews in Northern Ireland, and meetings in London. These had been preceded by writing some hundred letters last Autumn to as wide a variety of recipients as could be devised. I was already acquainted with spokesmen for a number of political parties and with numerous other organisations who had assisted on previous annual reviews. Each of the local authorities was contacted, as were all the main churches. All were invited to send their views in writing by the New Year, and to say if they would like a meeting. Advertisements were placed in the newspapers, and this provoked a number of letters from the public. I am not aware of having failed to see anyone who so requested, and arrangements were made to seek out people who could express some points of view or concerns not otherwise canvassed. I went to all six counties, spending a full 24 hours each in County Londonderry and County Fermanagh. I was invited to address, but more particularly listen to, the Coleraine Borough Council, the Derry City Council, the Strabane District Council and the Ards Borough Council. The Army organised discussions in each of the three Brigades, both at Brigade and Regimental level, with a visit to a Border Crossing Point in County Tyrone, and two Permanent Vehicle Check Points; while the RUC gave me their views at Headquarters, in Londonderry and Enniskillen, and in the course of a tour in West Belfast I was able to talk to all ranks, both in the Army and Police. I spoke to several Departments and Agencies of Government.

The list omits mention of many others, both individuals and organisations, who made a fascinating and perceptive contribution to the review. This is from no ingratitude, but having thought long about it, I concluded that this is the fairest way. There were some who feared that they might be misunderstood for having participated; yet to leave them out of a list would do serious damage to the balance. For the same reasons there is little in the text which attributes any comment to its source.

To everyone, however, I have to express my deep gratitude. They accommodated my closely-packed schedule, were forthcoming with ideas and propositions, and in many cases with kind hospitality. I enjoyed and was much enlightened by meeting them all.

I must also thank most warmly the officials who made all the plans, and helped with notes and papers, and, in no small way, those who typed the manuscript. The time table has been very tight, and without their generous help could not have been achieved.

1.1 The temptation arises to embark on a definitive treatise on the situation in Northern Ireland in early 1990. There is a wealth of fact and opinion, and suggestions for policy too, in the written and oral information which I have been given. Yet this was a snapshot only of those months, albeit with a panoramic background stretching back over seven centuries or so. Without a wary eye on that history, it would be rash to make recommendations to fulfil my main terms of reference, about a new Emergency Provisions Act in 1992; lasting until 1997 as I see it. However, the task must be forward-looking; though inevitably technical, and so for many hard work to read, the report must represent raw material for formulating any new Emergency Provisions Bill and for discussion in Parliament of the text. That legislation will address only a small portion of the situation in Northern Ireland. It is much better, therefore, only to recognise and mention some of the strands which make up the tapestry which includes the emergency. I recognise, anyway, the constraints on any writer who was not brought up in Ireland.

1.2 Some who have contributed by their letters and in discussion will be disappointed that I do not cover all their points. There are those, like harmonisation of UK terrorist law with that in the Republic, or the whole EEC, which go wide of my terms of reference. So too does an overview of the criminal law in Northern Ireland, including detention of young people during the Secretary of State's pleasure, or indeterminate sentences. I have had no more success than others in finding a way to prohibit amazingly realistic imitation firearms from sale in a shop or by mail order, without comprehending children's toys as well. I fear that many topics remain unaddressed, but I do not believe that any of them would have added to the fulfilment of the comparatively narrow remit which I have been given.[1]

1.3 There is a direct challenge, in the representations made to me, to a continuation of the EPA. The Labour Party puts it thus:-

"The Labour Party continues to believe that emergency legislation cannot resolve the problems which exist in Northern Ireland. Furthermore, the grievances to which the operation of emergency powers give rise are in themselves one of the causes of the continuing violence. They also lend credence to the claims of the paramilitaries by giving them a status they would not otherwise have.
We believe that the basic task of government in Northern Ireland is to ensure that the Province is administered on the basis of the rule of law. It is an extremely dangerous fallacy to believe that the absence of political stability justifies deviations from the rule of law. On the contrary, precisely because the political institutions lack legitimacy, the negative effects of deviations from the rule of law are magnified."

1.4 They would be supported by the SDLP and others. They see the Acts as an obstacle to a political solution. From an entirety different source, the Ulster Unionist Party, I have been reminded of the long history of emergency legislation in Ireland. Acts to suspend habeas corpus (Coercion Acts) were regular features in the 18th and 19th centuries, and the law was virtually codified in the Criminal Law and Procedures (Ireland) Act 1887, which was aimed primarily at "agrarian outrages". This was insufficient to deal with the rebellions of 1916 and 1918, for which powers under the Defence of the Realm Act 1914 and 1915 were used. Next came the Restoration of Order in Ireland Act 1920. Stormont, when it was set in place, passed an equivalent to the 1887 Act, which was never implemented; reliance for years was placed instead on the Civil Authorities (Special Powers) Act 1922 and Regulations made under it, until the advent of the Emergency Provisions Act 1973. It must therefore be conceded that "normality" in the rule of law, as it is enjoyed in the rest of the UK, has never been quite the same in Northern Ireland. I can readily understand why there is a concern about human rights; and many nationalists would say that I have not gone far enough into history.

1.5 An opposite point of view would set forth from the most basic human right of all, the right of life. This is at the forefront of the International Covenants, and of the European Convention [2]. Without it everything else loses its significance. In his Annual Report for 1987 the then Chief Constable of the RUC said in his Foreword:

"Terrorists are well schooled in methods designed to impede investigation into their acts of violent criminality. They are educated to a high degree in the working of the legal system and use this knowledge to their advantage. Training in interrogation resistance, with lectures and practical demonstrations, is standard procedure to all so-called volunteers. They are also made fully aware of the value of scientific evidence and take immediate steps to remove or destroy any traces of their criminal actions. Detection is thus avoided and justice thwarted.
This state of affairs inevitably raises a serious question which must be faced: how is society to defend itself against a determined criminal conspiracy which abuses the freedoms of democracy in order to destroy it? The police and the courts must have adequate powers to deal effectively with terrorist criminality in all its forms. It cannot be right that known murderers can walk the streets with apparent impunity and that the community can he intimidated and coerced."

1.6 In the following Annual Report he was no less forceful:

"The perception of 1988 is one of terrorist atrocity followed by terrorist atrocity and the year will undoubtedly stand out as one in which murderous inhumanity was portrayed as never before. The Provisional IRA in particular had intended a year of seriously escalating violence and only the dedicated efforts of the Police and the Army prevented their full plans from being realised. In the event the number of deaths did not exceed those of the previous year but the continuing loss of life is totally unacceptable if Northern Ireland is to be regarded as a civilised society. It is more encouraging to report that the overall level of crime decreased substantially and the high detection rate was maintained. Most importantly, stability was also maintained in public order."

1.7 Some members of the public took the trouble to write to me saying that the existing emergency laws are inadequate; and I received the same message from some councillors whose Council meetings I attended.

1.8 To illustrate the extent in recent years of terrorist activity the following statistics present the facts-

*Deaths are up to 31 May - the remaining figures are as at 31 March 1990.

I would add a footnote: the weight of explosives in this table does not differentiate between home-made explosives and Semtex: the latter, lb for lb, causes vastly more damage.

1.9 Confronted with these diametrically opposing views, I am not even allowed to come down somewhere in the middle, because my terms of reference predicate a replacement of the EPAS. I would not, in fact, be able to recommend otherwise, on the facts presented to me; but I do recognise that, if there can be seen some glimpse of a path leading to a political resolution of the emergency, a larger prospect may have opened up by the time a new Bill comes to be debated in Parliament; or even as late as May 1992 when it is due to come into force. There is a long way to go, but I suggest that it might be worth considering, for that purpose, a commencement order procedure, so that no decision need finally be taken until just before that date.

1.10 For the moment, however, I am happy to adopt the principles supplied to me by the Alliance Party:

"(1) The principles of human rights and the preservation of civil liberties are an essential priority in any democratic society, Alteration in the processes of the criminal law may be essential in the face of violent attack on the democratic process and the rule of law, but any such alteration must be carefully scrutinised and considered, and must not go beyond what is necessary to protect the public.

(2) The preservation and promotion of public confidence in policing and in the administration of justice is of the utmost importance in ending Northern Ireland's years of division and communal violence. The police and the courts, and the laws which they administer and apply, must be clearly seen to be fair and impartial.

(3) The same standards should be clearly seen to apply in Northern Ireland as in the rest of the United Kingdom. Legislation peculiar to Northern Ireland must not limit the standards of human rights and civil liberties prevailing in the rest of the UK without the clearest possible justification, and where such legislation is made necessary by the current political conflict in Northern Ireland that linkage must be clearly identified.

(4) It is at all times essential that the letter and spirit of the European Convention on Human Rights be complied with."

Note The derogation following the Brogan case is not for an EPA review.

1.11 It has always been my approach that no deviation from the normal law should be allowed to continue unless the case for it is made out on each occasion when a decision falls to be taken. That is the way to look at an emergency; if it is to be called an "emergency" after all these years, only those measures are legitimate which are the minimum needed to bring it to an end. And even though one member of the public wrote that "the so-called Troubles are the norm". it still seems to me most unsatisfactory to adopt a policy which is based on that assumption.

1.12 There is universal agreement that the struggle to eradicate terrorism in Northern Ireland must be conducted with the widest possible support from the community if it is to be successful. This is said by those, like the Workers' Party , whose recipe would include abolition of the EPA. It must be an even more strongly held tenet for those who support a continuation, or a reinforcement of emergency powers. I have no doubt at all that Government in all its forms, the police and the Army are fully seized of this point, but there is no end to the vigilance required to temper the inconveniences caused by the operation of the EPA. I give a few examples:

(1) There is complaint, particularly in West Belfast and West Londonderry that the police are very slow to respond to ordinary crime; the point was made, too, in one country area. I may say that this is not an annoyance unique to Northern Ireland. Most police forces have their priorities and take longer to respond to some categories of reported crime than others. However the RUC's manpower is stretched, and they face the hazard which occurs nowhere else that a call for the police to attend a burglary may be a set-up for an ambush. It is, however, most encouraging to find, in the Chief Constable's newly published strategy, that two of the aims are to reduce the incidence and enhance the detection of crime, and to reduce the incidence of road traffic accidents: both are normal and traditional police priorities, and the emphasis must be seen as commendable.
A businessman wrote to tell me that his premises had been bombed 8 times, and burgled on 73 occasions. He quite simply thinks the policing has broken down and the EPA does not work: it is not difficult to see his point.

(2) It can well be counter-productive, as the common complaint tends to indicate, to pick on young men in certain areas for particular attention by patrols. It is just these people who are potential recruits for the terrorist organisations. If they believe themselves to be victimised, or are humiliated in the company of a girl-friend, such treatment may lead to permanent alienation from the forces of law and order. If, however, they really are becoming "fed up with being used as terrorist cannon-fodder", this must be an attitude which needs every encouragement.

(3) Delays at Permanent Vehicle Check Points on the Border are a continuing irritation to regular users. At the Clady PVCP in West Tyrone it can take three quarters of an hour to get through to Mass, on Sunday mornings. At Gortmullan in South East Co. Fermanagh there are regularly delays which cause frustration to those who cross the border to their work, and substantial financial penalties for commercial firms. One industrialist calculated that the delays at that crossing alone cost him nearly £300,000 pal, largely made up from having to run 5 extra lorries.
It is not that people object to being checked, although frequently they are waved through when their turn comes. It is the unnecessary hold-up. I have much sympathy with proposals for some time-and-motion techniques to be applied. Some PVCP's such as Aughnacloy have a lay-by facility into which a vehicle to be searched is diverted, allowing the other traffic to proceed; but at others, like Gortmullan, the road is a narrow lane in each direction. The cost of purchasing a small piece of land and surfacing it would bring a handsome return in goodwill. It is very hard to devise a method of apologising to individuals for delays which can badly upset the purpose of a joumey; the better solution must be to avoid the tail-back.

(4) It appears that the security forces take photographs of people, in the street and at Vehicle Cheek Points. The only reason can be that policemen and soldiers wish to recognise those in whom they have a security interest. This was, at the time of my visit to Northern Ireland, a very sensitive subject, in the aftermath of "montages" appearing on walls, and the inquiry carried out by Mr. Stevens. It is not irrelevant to mention that there would be a fair amount of support in Northern Ireland for a national identity card system, which incidentally would provide photographs of everyone.

(5) Apprehension can be caused by soldiers drawing a plan of the house when a house-search takes place. Some house-holders are convinced that this is part of a plot to enable ("Loyalist") terrorists to find their way to, for instance, a bedroom when they come to carry out an assassination. In fact, these sketches are drawn in order to identify the position of any item which may have been damaged during the search, so that the Civil Representatives may accurately assess and pay compensation. They are also useful in identifying where any suspicious items are found.

1.13 It would be impossible to remark on all the initiatives which are currently under way in Northern Ireland. Social advances are instrumental in reducing the draw of terrorism; employment and prosperity, good housing and a better environment are as much cherished in Northern Ireland as in the rest of the UK. The Central Community Relations Unit and the Northern Ireland Community Relations Council are engaged in cross-community contact and co-operation, mutual understanding and respect, as well as equal opportunities and equity of treatment, and a respect for the cultural roots of both communities, including the use of Gaelic. Mutual understanding truly needs developing. The same events are perceived, Bishop Cahal Daly told me, in strongly different ways within the Catholic and Protestant parts of his diocese. The Northern Ireland Community Study Group has recently formulated some rules of dialogue, one of which is this:

"In talking to each other we have to use language. I realise that human language is not a perfect instrument. No matter how well-educated a person may be, he will not always succeed in saying exactly what he means, so if something you have said makes me annoyed I will not immediately react angrily. I will ask as many questions as are necessary to be clear about what you actually meant. The chances are that there will be very little to be angry about."

There is room for a wider application of this rule.

1.14 I was impressed by the fortitude of the communities whom I met in the border area. It seems that they do apply the "rule" just mentioned to very good effect. Their anxieties, however, about terrorist activity in this sensitive zone deserves recognition; Chapter 13.3.3 gives an example of what may be done.

1.15 Lastly, out of many instances of wise advice, I would wish to give an example of a gesture which brought a beneficial response in community perceptions. The Christmas release scheme for prisoners was a most successful concession. It is worth considering Northern Ireland prisoners in the GB prison system. A transfer to Northern Ireland would be well received; visiting by relations is extremely difficult and even accumulated visits are a rare event. With over-crowding in England and wider use of capacity in Northern Ireland more than one objective might be gained. The dominance of family and community links in Northern Ireland would be acknowledged and sustained.

1.16 This must, however, suffice as an introduction to the detail of the legislation.

Notes:
[1] I have seen the RUC's prospective concerns about changes to PACE Code of Practice B, which is about endorsement of warrants between the UK jurisdictions. This must be dealt with on a UK-wide basis, and has nothing to do with the EPA.

[2] European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2: "Everyone's right to life shall be protected by law".