Anti-Terrorism Law and Normalising Northern Ireland

Jessie Blackbourn

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317964186
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The Northern Ireland peace process has been heralded by those involved as a successful example of transformation from a violent conflict to a peaceful society. This book examines the implementation of the Belfast Agreement in Northern Ireland, and evaluates whether its goal to establish a normal, peaceful society has been fully realised.

Using the political and legal status of England, Scotland and Wales as a comparison, Jessie Blackbourn evaluates eight aspects of Northern Ireland which the Agreement aimed to normalise: the contested constitutional status of Northern Ireland, the devolution of power, decommissioning, the removal of emergency laws, demilitarisation, police reform, criminal justice reform, and paramilitary prisoners. The book highlights the historical context which gave rise to the need for a programme of normalisation within the Belfast Agreement with respect to these areas and assesses the extent to which that programme of normalisation has been successfully implemented.

By evaluating the implementation of the Belfast Agreement, the book demonstrates the difficulties that transitional or post-conflict states face in attempting to wind back extraordinary counter-terrorism policies after periods of violence have been brought to an end. The book will be of great use to students and researchers concerned with the emergence, evolution and repeal of anti-terrorism laws, and anyone interested in the history of the conflict and peace process in Northern Ireland.

1 Resolving the constitutional question

On 10 April 1998, the peace process participants accepted a simple, but interesting and novel, solution to the contested constitutional status of Northern Ireland. Whilst recognising that Northern Ireland was currently a part of the United Kingdom (UK), they agreed to disagree on where Northern Ireland’s constitutional future lay: within the Union with Great Britain or as an integral part of a united Republic of Ireland.¹ In doing so, they agreed to respect the validity of both constitutional claims. The Agreement proposed a political mechanism to bring about future change to the constitutional status of Northern Ireland.² It also ensured that any change would be based on the consent of a majority of the people of Northern Ireland.³ The Agreement’s solution aimed to prevent a violent minority from forcibly partitioning Northern Ireland from Britain against the will of the majority. It also prevented the UK government from taking unilateral action to concede the territory of Northern Ireland to the Republic of Ireland against the wishes of the majority. This response to the root causes of the conflict in Northern Ireland was radical in its simplicity, but it involved a seismic shift in traditional nationalist and unionist ideology. Nationalists had traditionally held that it was for the Irish nation – that is, all of the people on the island of Ireland – to determine Northern Ireland’s constitutional status.⁴ It was therefore a significant departure for nationalists to accept that it was only for the people of Northern Ireland (the majority of whom favoured retention of the Union) to make a decision on Northern Ireland’s future constitutional status. In contrast, unionists had long held that Northern Ireland was, just like Scotland and Wales, an integral part of the UK.⁵ For unionists to accept that Northern Ireland’s place within the Union was not permanent, but was dependent on the will of the people (a people who might one day vote Northern Ireland out of the UK), represented a drastic change from their traditional perspective.

The simplicity of the Agreement’s solution to the contested constitutional question concealed the enormity of the challenge that it had to overcome. The first part of this chapter will explore those challenges; it will examine the history which gave rise to Northern Ireland’s contested constitutional status. This history will demonstrate the significance of the Agreement’s success in achieving consensus on a mechanism for resolving the constitutional question. The chapter will then outline the Agreement’s solution to the contested constitutional issue and assess the implementation of its programme of normalisation by the UK and Republic of Ireland governments. Finally, the chapter will draw broader conclusions as to whether the implementation of this aspect of the Agreement has helped to create a normal, peaceful society in Northern Ireland.

The origins of the exception: the contested constitutional status of Northern Ireland

Northern Ireland, as a political unit, was formed by the partition of Ireland in 1920 to 1921. The six counties of the Irish province of Ulster that became Northern Ireland remained part of the new United Kingdom of Great Britain and Northern Ireland. The 26 counties in the southern part of Ireland were constituted into the new Irish Free State as a dominion of the British Commonwealth. Questions over Northern Ireland’s constitutional status as part of the UK reflected earlier debates regarding Ireland’s place within the Union with Britain. The history of Ireland’s relationship with Britain is long and complex, and cannot be covered in detail here.⁶ But in order to appreciate why the constitutional status of Northern Ireland was so contested – and therefore why the Agreement’s solution was so remarkable – it is necessary to understand at least the basic origins of the conflicting claims to national sovereignty on the island of Ireland. This will demonstrate how deeply the unionist and nationalist views of Northern Ireland’s constitutional status had come to be entrenched by the time the Agreement was reached. This chapter highlights three of the key periods in which questions regarding the constitutional status of Ireland and Northern Ireland emerged as a political issue: first, at the founding of the Union between Britain and Ireland in 1801 and during subsequent attempts to secure its dissolution; secondly, in the new states of Northern Ireland and the Irish Free State in the aftermath of the partition of Ireland in 1920 to 1921; and thirdly, during the early stages of the peace process in the 1990s.

Making and breaking the Union

In 1801, the parliament of Ireland acquiesced in its own abolition and formed a political union with Britain, establishing the new United Kingdom of Great Britain and Ireland.⁷ The move towards political union between Britain and Ireland had been on the agenda for some time; however, it was secured by a failed rebellion in 1798, which had sought to attain greater autonomy for Ireland from Britain.⁸ The use of violence for the purpose of achieving Irish independence was a recurring theme throughout the first half of the nineteenth century.⁹ However, a constitutionalist approach to the issue was also taken. By the late nineteenth century it had – at least temporarily – superseded violence as the primary strategy for pursuing an Irish nationalist agenda. The constitutional nationalist approach was narrow; it aimed to secure ‘home rule’ – a parliament for Ireland within the Union with Britain.¹⁰ The Irish Parliamentary Party (IPP) was the protagonist of Irish home rule on this model. Founded in 1882, it represented the majority of Irish constituencies in the UK parliament at Westminster. It sought to achieve home rule through purely political means, that is, by securing the enactment of legislation granting an autonomous parliament to Ireland. The IPP’s home rule agenda was adopted by the UK Liberal Party in the mid-1880s. Over the next 30 years, Liberal Party governments attempted to place home rule on the statute books. These endeavours had unanticipated outcomes. They caused sharp divisions within Ireland and led to the violent partition of Ireland into two new states. They also cemented nationalist and unionist positions on the constitutional status of Northern Ireland.

In 1886, Prime Minister William Ewart Gladstone introduced his first Home Rule Bill.¹¹ It aimed to establish a ‘domestic Legislature for Irish affairs’.¹² The introduction of the Home Rule Bill caused a split in the Liberal Party. Liberal Unionists joined the emerging Irish Unionist Party to vote against the Bill. The government was defeated by just 30 votes in the House of Commons.¹³ Gladstone called a general election over the issue, but the measure was not popular amongst the British electorate and he was defeated by a large margin by the Conservatives and Liberal Unionists at the polls.¹⁴ The Liberal Party was re-elected to government at the next election in 1892 and Gladstone introduced a second Home Rule Bill, similar to the first.¹⁵ This time, the Bill passed the House of Commons but was defeated in the House of Lords. Home rule was then abandoned by the UK’s main parliamentary parties until the general election of 1910, which saw the Conservative and Liberal parties deadlocked.¹⁶ Neither party had sufficient Members of Parliament to form a government. The IPP suddenly held the balance of power. In return for helping the Liberal Party to form a government, it secured a promise for new legislation granting home rule to Ireland. This was introduced by Prime Minister Henry Herbert Asquith in 1912.¹⁷

Although popular amongst nationalists in Ireland, home rule was still opposed by unionists in Britain and Ireland in 1912. This opposition took two different forms.¹⁸ In Britain, the Liberal Unionist and Conservative opposition in the UK parliament maintained political pressure on Asquith’s government to exclude Ulster, or a majority Protestant portion of Ulster, from any home rule settlement.¹⁹ In Ireland, the leaders of the Unionist Party...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Table of legislation
• List of abbreviations and defined terms
• Introduction
• 1 Resolving the constitutional question
• 2 Devolution and decommissioning
• 3 The ‘normalisation of security’ I: the removal of emergency powers
• 4 The ‘normalisation of security’ II: the military in Northern Ireland
• 5 Normalising policing and justice
• 6 Paramilitary prisoners
• 7 Northern Ireland: the new normal?
• Index