'Discrimination and the Administration of Justice' from 'Perspectives on Discrimination and Social Work in Northern Ireland'by Andrew Hamilton

Key Readings

Boyle, K., Hadden, T. and Hillyard, P. (1980) Ten Years on in Northern Ireland: The Legal Control of Political Violence. London, Cobden.

Dickson, B. (1990) Civil Liberties in Northern Ireland: The CAJ Handbook. Belfast, the Committee on the Administration of Justice (Chapters 1-4).

Darby, J. (1976) Conflict in Northern Ireland: The Development of a Polarised Community. Dublin, Gill and Macmillan (especially Chapter 3).

Flackes, W.D. and Elliott, S. (1989) Northern Ireland: A Political Directory 1968-88. Belfast, Blackstaff Press (especially pp. 383-409).

Hillyard, p. (1983) "Law and Order", in Darby, J. (ed.), Northern Ireland: The Background to the Conflict. Belfast, Appletree Press.

Smith, D. J. and Chambers, G. (1987) Equality and Inequality in Northern Ireland: Part 3 Perceptions and Views. London, Policy Studies Institute.

Walsh, D.P.J. (1983) The Use and Abuse of Emergency Legislation. London, Cobden.

Resources

1. The Ombudsman
Progressive House
33 Wellington Place
Belfast BTI 6HN
Telephone (0232) 233821

The Northern Ireland Ombudsman consists of two offices held by the same person. They are the Parliamentary Commissioner for Administration and the Commissioner for Complaints.

The Ombudsman is responsible for responding to complaints from individual members of the public who claim to have experienced maladministration by certain public bodies.

Matters concerned with fair employment are handled by the Fair Employment Commission, and not the Ombudsman.

Actions of Northern Ireland government departments can be scrutinised by the Parliamentary Commissioner for Administration, who cannot initiate a complaint; this must be channelled through a member of Parliament. Complaints have to be brought in writing within twelve months of the matter coming to the attention of the complainant. There is discretion to extend this time limit.

Acting as Commissioner for Complaints, other public bodies such as area boards and the Housing Executive may be subjected to inquiry about complaints brought within six months of the action complained about or within two months of becoming aware of the action, whichever is the earlier event. Complaints about these statutory bodies can be made directly and do not have to be channelled through a mimber of parliament.

2. Standing Advisory Commission on Human Rights (SACHR)
55 Royal Avenue
Belfast BTI 1TA

The SACHR was appointed under section 20 of the Northern Ireland Constitution Act 1973 with the role of "advising the Secretary of State on the adequacy and effectiveness of the law for the time being in force, in preventing discrimination on the grounds of religious belief or political opinion".

The SACHR commissions much useful research and is responsible for bringing the outcomes to the attention of the public and the government. The SACHR, however, is critical of its own effectiveness and has stated that often no notice is taken of its advice, or the government introduces measures relating to its remit without consulting or even informing it.

3. Committee on the Administration of Justice (CAJ)
45-47 Donegall Street
Belfast BT1 2FG
Telephone (0232) 232394

The CAJ was established as an independent voluntary organisation to monitor the Northern Ireland legal system, to provide information and to campaign for changes in the law. It is also called the Northern Ireland Civil Liberties Council.

1. Definitions

Milestone Legislation and Events

2. History

Issues concerning security policy and the administration of justice have been central to the polarisation of Northern Irish society since the establishment of the state, and they continue to divide the two communities. On the one hand, most Unionists see the various institutional arrangements and legislative framework for the administration of justice as essential to the preservation of the constitutional status quo in the face of the threat from republicanism; on the other hand, most nationalists view the same institutions and legislation as yet another example - and one of the most blatant and important examples - of the sectarian nature of the state. Indeed, as Hillyard points out, from the outset the law-and-order strategy adopted by successive Unionist governments continually alienated the minority community from both the law and the state (Hillyard 1983). This has proved to be a difficult legacy for successive British governments striving to deal with the security problems facing the province at the same time as trying to establish some degree of confidence in the law-and-order institutions among the Catholic population.

In October 1920 the British government, responding to Unionist pressure, set up the Ulster Special Constabulary (USC) to assist the police to counter the threat posed by the IRA. However, while the Westminster government may have acted in the role of midwife to the organisation it quickly became the child of the Unionist government at Stormont. The force originally comprised three elements - Class "A" Specials, who were full-time members who could be posted anywhere in Northern Ireland; Class "B" Specials, who were willing to do part-time duty in their own locality; and Class "C" Specials, who were willing to go on reserve and who could be called upon in an emergency. The "A" and "C" Specials were eventually dropped, but the "B" Specials were retained until 1970. While membership of the force was not in theory confined to Protestants, the selection and screening practices - allied to the risks of Catholic members becoming especial targets of the IRA - meant that in practice it quickly became a wholly Protestant force, with no educational tests for members. The number of "Specials" involved varied periodically from some 25,000 in the early 1920s to 8,285 in 1969 (Darby 1976, p. 61).

Towards the end of 1921, responsibility for the preservation of law and order was transferred to the Stormont government in accordance with the provisions of the Government of Ireland Act. As Hillyard points out, the Specials played the central role in the establishment of the authority of the new government in Northern Ireland, and from the outset they were surrounded by controversy (Hillyard 1983, p. 33). The slack recruitment procedures and training methods, allied to the anti-Catholic bias in membership and the undisciplined and partisan behaviour of some of the members of the force, resulted in its being viewed with suspicion, resentment and even hatred by most Catholics. The Scarman Tribunal, which investigated the riots and shootings in the summer of 1969, concluded that the USC was "totally distrusted by the Catholics", who saw it as the strong arm of the Protestant ascendancy" (quoted in Flackes and Elliott 1989, p. 384).

It has been argued that the sectarian conduct of members of the USC contributed to the anti-police sentiment amongst the Catholic population, since not only were the USC and the Royal Ulster Constabulary (RUC) - which had replaced the old Royal Irish Constabulary in January 1921, in the process taking on the paramilitary functions of the old force - linked together in the public mind, but also half the initial recruits for the RUC came from the "A" Specials (Hillyard 1983, p. 33). Whatever the precise reasons, by 1969 the lack of confidence in the RUC among the Catholic population was clear to the Scarman Tribunal, which, while rejecting the charge that the RUC was a partisan force which had co-operated with Protestant mobs to attack Catholics, concluded that the events of August 1969 had resulted in a complete loss of confidence by the Catholic community in the police force as it was then constituted (Flackes and Elliott 1989, pp. 250 and 385-6). As Darby has pointed out, while almost all of the responsible investigators of police conduct during the Civil Rights period remarked favourably on the actions of the great majority of policemen in the province, all of them also commented on the poor quality of the leadership (Darby 1976, pp. 61-2).

The distrust felt by most Catholics was exacerbated by what was seen as politically repressive legislation dating back to the establishment of the Northern Ireland government. In 1922 the Stormont parliament passed the Civil Authorities (Special Powers) Act, which empowered the Minister of Home Affairs to "take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order" and conferred upon the police and other agents of the Ministry of Home Affairs wide powers of arrest, questioning, search, detention and internment. The Act permitted the arrest and detention of anyone who was acting, had acted or was about to act "in a manner prejudicial to the preservation of the peace and maintenance of order". Although this Act was intended as a temporary measure and initially required to be renewed annually, in 1933 it was made permanent. Not only was internment used when the state appeared to be under threat from IRA campaigns, but it was also used as a short-term "preventive" measure in other circumstances - for example, when Republican politicians were interned for a week during a Royal visit in 1951. The decision to intern - or to release internees - was entirely an executive prerogative resting with the Minister of Home Affairs, since, while there was provision for the appointment of an advisory committee to review the cases, the Minister was not bound to accept the recommendations (Hillyard 1983). The power of internment was used almost exclusively against Catholics and added to the widespread sense of resentment and lack of confidence among the Catholic community. The essentially political nature of the Act was seen even more clearly by the 1967 banning of the Republican Clubs when they appeared to have been engaged in legitimate political activities (Darby 1976, p. 57).

Catholics also had little confidence in the courts in Northern Ireland. In part this stemmed from the strong imbalance between Protestants and Catholics in the composition of both the judiciary and the magistrates' benches and in part from the perception that many of these posts were awarded primarily on political grounds. Furthermore, an imbalance in the composition of juries - partly as a result of property qualifications and partly as a result of the rules concerning the right to stand by or challenge jurors - further exacerbated the problem of lack of confidence in the administration of justice (see Darby 1976, pp. 63-5 and Hillyard 1973, p. 35).

In August 1969, the Stormont government, faced with the inability of the RUC to contain the violent disturbances in Belfast and in Derry, was forced to request the deployment of British troops in a peace-keeping role. Prior to this there had always been a British army presence in Northern Ireland, but at a fairly low level and solely to deal with any external threat to the Northern Ireland state. The new situation provided the British government with the opportunity to pressure Stormont into a series of reforms intended to reduce discrimination and increase Catholic confidence in the institutions of the state.

Following the recommendations of the Hunt Committee (1969), the RUC was remodelled along the same lines as police forces in Great Britain, with the objective of establishing a wholly civilian force, with no military role and free from direct political control. Under the Police Act 1970, a Police Authority, representative of the main sections of the community, was set up and was given the responsibility to maintain an adequate and efficient police force. The size of the force, which had previously been limited to 3,500, was increased to 4,940 in 1970. A series of subsequent increases led to a full-time force of 8,236 by 1987. In addition there was a full-time Reserve of 2,987 with a part-time Reserve of 1,659 (Flackes and Elliott 1989, p. 386). The plans to disarm the police were, however, quickly dropped in the light of increasing violence, and the increasingly military nature of the situation resulted in the police returning to their old role, and the initial approval of the Catholic community gave way to renewed suspicions and distrust.

The USC was disbanded and in April 1970 it was replaced by the Ulster Defence Regiment (UDR), a locally raised force within the British Army structure. Although the UDR did attract up to 18% Catholic membership in its early days, by the end of the 1980s this had fallen to some 3% (Flackes and Elliott 1988, p. 396). While this may have, to some extent, resulted from an IRA campaign against Catholic members it also clearly indicates that the regiment has a major credibility problem in the eyes of the Catholic community, a problem which has been exacerbated by the conviction of some of its members, or ex-members, on sectarian murder charges and on charges of links with loyalist paramilitaries.

Although the UDR was originally intended to be primarily a part-time force, the continuing campaign of terrorism and the policy of "Ulsterisation" - a policy pursued since the 1970s in which the primary responsibility for law and order has been restored to the RUC in particular and the local security forces in general, with the regular army operating in a support role - has meant that by 1988 46% of its overall strength of 6,300 was full-time (Flackes and Elliott 1989, p. 398). And since the vast majority of the personnel in both the UDR and RUC are Protestant, the effect of the Ulsterisation policy, whatever its intention, has been to replace British security personnel by Ulster Protestants (Hillyard 1986, p. 44).

The reforms which resulted firstly from British government pressure and subsequently from the introduction of direct rule by the Westminster government following the suspension of Stormont in March 1972 - closely related to the disastrous consequences of the widespread use of internment in August 1991 - were not restricted to the structure and control of the security forces. In 1972 a new office of Director of Public Prosecutions was set up with full responsibility for the selection and prosecution of all serious criminal charges. There was a change in the internment process and indeed in the very name used - it was now referred to as "detention" and involved a system of judicial hearings rather than a decision by a government Minister. In August 1973 the Special Powers Act was replaced by the Northern Ireland (Emergency Provisions) Act (EPA) which implemented most of the recommendations of the Diplock Commission (1972).

The EPA provided the police and the army with extensive powers to question, search, arrest and detain. It also introduced non-jury trials for a wide range of "scheduled" offences - the so-called Diplock Courts in which the guilt or innocence of the accused, as well as any sentence, is determined by a single judge, sitting alone - and introduced far-reaching changes in the rules of evidence. In 1975, as part of a general strategy of "criminalisation" in which actions associated with political violence would be treated, as far as possible, as normal criminal acts, a policy decision was taken not to resort to detention without trial and to rely instead on the Diplock Courts to deal with terrorist suspects. The detention without trial process has not been used since then.

In 1974 the EPA was supplemented by the Prevention of Terrorism (Temporary Provisions) Act (PTA), which, unlike the EPA, relates to the whole of the UK but was originally designed only to deal with violence associated with Northern Ireland (in 1984 it was extended to apply to international terrorism). Among its provisions, the PTA provided for the exclusion from Great Britain, from Northern Ireland, or from the UK as a whole, of persons involved in terrorism associated with Northern Ireland. It also provided for the arrest and temporary detention of suspected terrorists. Such persons can be detained for up to 48 hours but this can be extended for up to five days by order of the Secretary of State. The EPA and the PTA have since been amended and updated on several occasions and, operating in tandem, continue to provide the legislative framework for combating political violence in Northern Ireland and Great Britain. In addition to the measures outlined above, the PTA also gives the government power to proscribe in Great Britain organisations deemed to be associated with terrorism - the EPA already provided a similar power for Northern Ireland - and also makes it an offence to contribute or solicit money for terrorism, or to withhold information on terrorism.

3. Contemporary Issues

The overriding question is whether it is possible to construct in Northern Ireland structures and practices for the administration of justice and the enforcement of law and order which can provide adequate security while at the same time gaining the confidence of both the Catholic and the Protestant communities and

respecting basic human rights and civil liberties. This broad question can be related to four specific aspects of the system in Northern Ireland:

(a) The courts

(b) Emergency legislation

(c) The role of the RUC

(d) The role of the army.

(a) The Courts
A survey carried out in June 1986 on behalf of the Standing Advisory Commission on Human Rights (SACHR) showed that 21% of Catholics thought that the courts were very unfair when dealing with Catholics; a further 17% thought they were a bit unfair (Smith, D.J. 1987). Much political attention has focused on the Diplock Courts. It is highly unlikely, in the face of continuing violence and the possible, indeed probable, intimidation of both witnesses and jurors, that there will be a return in the foreseeable future to trial by jury for acts associated with political violence. However, it has been widely suggested that a system of three judges sitting together rather than a single judge sitting alone would be, or at least would be perceived to be, more fair. The Irish government, through the Anglo-Irish Conference, has pressed consistently for such a change and has pointed to the precedent of the Special Criminal Court in the Republic which has operated on that basis since 1972.

The main argument against moving to a three-judge system has been practical - the difficulty of appointing the additional judges required without seriously depleting the senior criminal bar in Northern Ireland and thus reducing both the quantity and quality of legal assistance available to accused persons. Such an increase in numbers of judges would also lead to a significantly increased burden on the security forces since members of the judiciary are high-priority targets for the IRA. It has also been pointed out that all persons convicted in Diplock Courts already have the right to have their cases brought before the Appeal Court, which involves three judges sitting together. Furthermore, the most controversial verdicts in terrorism cases in recent years have in fact been in cases tried in the normal way by a jury court in England.

Nevertheless, there is some evidence that the introduction of three-judge courts would be generally welcomed by the Catholic community, although the actual constitution of the courts is accorded much less importance than some measures which have eroded the rights of accused persons (such as modifications in the rules of evidence) and the actual behaviour of the security forces.

(b) Emergency Legislation
The Diplock Courts are, of course, only one manifestation of the emergency legislation introduced by the British government in the mid- 1 970s and renewed and extended by successive governments since then. The continuation of such measures has provided a valuable propaganda weapon for the paramilitary organisations, particularly the IRA, and has on occasions brought the British government into conflict with international judicial and civil liberties organisations.

Hillyard has argued that one effect of this reliance on, and normalisation of, emergency legislation has been a fundamental shift within the criminal justice system from policing offences to policing people (Hillyard 1983, p. 58). The counter-argument remains that such measures are a regrettable necessity in any democratic society faced with the type of security situation which exists in Northern Ireland. It is frequently pointed out, for example, that the Republic of Ireland has its own, in some ways more severe, special legislation on the statute book. However, even this argument ignores the question of the degree of consensus concerning the legitimacy accorded to the state which such measures are designed to "protect". In Northern Ireland the maintenance of law and order is as intimately concerned with political and constitutional issues as with the criminal law itself or any specific security policies.

(c) The Role of the RUC
During the last twenty years the RUC has made strenuous efforts to improve its professionalism and to gain acceptance by both communities in Northern Ireland as anon-political, non-partisan force. There would be a large level of agreement that through stricter recruitment policies and better training and management it has made significant progress in the first objective. However, it has been less successful in achieving confidence and legitimacy in the eyes of the Catholic community. The 1986 SACHR survey showed that only 42% of Catholics (compared to 63% of Protestants) believed that the police treated Protestants and Catholics equally - indeed, 32% of the Catholics questioned said they felt that the police treated Protestants much better, with a further 24% saying that Protestants were treated a bit better.

In its most recent position statement, the Police Authority for Northern Ireland, while accepting that the security situation imposes unique demands on the police, states that if the RUC is to be effective in tackling crime, including terrorist crime, it must have the wholehearted support of all sections of the community. The Police Authority has pledged itself to monitor public opinion and to seek to promote the wider acceptability of the RUC. However, this has proved and will continue to prove a difficult task since there is a long legacy of complaints by the Catholic community against the RUC, with allegations ranging from general harassment to the operation of a shoot-to-kill policy.

One particular area of concern has been the procedures for investigating and pursuing complaints against the police. In 1988 a new Independent Commission for Police Complaints was established and given the primary responsibility for supervising the investigation of complaints against the RUC, although the Police Authority acts as the complaints and discipline authority for chief officers and also has reserve powers to refer any matter relating to the conduct of a police officer to the Commission. It must be stressed, however, that the actual investigation of all complaints against the police is carried out by the police themselves and there remains widespread scepticism among the Catholic community as to the effectiveness of such procedures. Indeed, it is probably fair to say that the establishment of credible and speedy processes for dealing with

complaints would be the single measure most likely to increase the legitimacy accorded to the police by the Catholic community.

(d) The Role of the Army
Although the widespread welcome given to the army by the Catholic population in 1969 was to prove short-lived, it is nevertheless true that the regular army continues to be perceived by Catholics as less partial than the RUC. However, the opposite is the case as far as the UDR is concerned. In the 1986 survey referred to above, only 27% of Catholics felt that the UDR treated Protestants and Catholics equally, while 50% felt that they treated Protestants much better and a further 18% felt that they treated Protestants a bit better. These general figures undoubtedly disguise an even deeper distrust and hatred of the UDR in certain nationalist areas of the province.

In 1991, the government announced the amalgamation of the UDR with the Royal Irish Rangers, a process currently being implemented. Although this measure was introduced as part of a general review of defence policy, there seems little doubt that it was also intended to deflect increasing criticism of the UDR emanating not only from the Catholic community and its political representatives in Northern Ireland, but also from the Irish government. Certainly it was perceived as such by the majority of the Protestant population, and this highlights the dilemma facing any British government. It is exceptionally difficult, given the historical record of locally recruited military or paramilitary forces, to persuade the Catholic community of the legitimacy of any such force, particularly if it includes a significant part-time element. Yet given the current security situation and the general policy of "Ulsterisation", it is equally difficult to see how the government can provide adequate security without such a force.

Exercises