The fortification of an emergency regime.

• Author: Aolain, Fionnuala Ni
• Position: Northern Ireland, United Kingdom

INTRODUCTION

Emergency powers have a long and tainted history in the United Kingdom, particularly in Northern Ireland, where their use and abuse have been especially troublesome. Emergency is no new phenomena to Northern Ireland; it predates the current period of political instability in the jurisdiction and finds its foundation in the very creation of the state.(1) The state's existence as a separate political entity stems from the partition of the island of Ireland in the early 1920s.(2) This partition was precipitated by Northern Ireland's Protestant majority, who were militarily and ideologically opposed to being subsumed into the new Irish Catholic state then emerging from a colonial war of independence with Britain.(3) From the time of the state's creation, the use of emergency powers became synonymous with the maintenance of security and the political status quo.

The primary emergency laws currently in force in the jurisdiction are the Northern Ireland (Emergency Provisions) Act 1991(4) (EPA), and its counterpart, the Prevention of Terrorism (Temporary Provisions) Act 1989(5) (PTA). The EPA operates only in Northern Ireland, while the PTA operates throughout the entire United Kingdom, but both statutes "are designed to obtain convictions in cases involving those suspected of paramilitary activity, based on confessions obtained through prolonged detention and intense interrogation."(6)

The EPA evolved from legislation initially passed in 1973.(7) The 1973 legislation repealed the Special Powers Act,(8) an act perceived by the Catholic minority as symbolic of the dominance and undemocratic nature of the state, but it also paradoxically reenacted many of the same provisions that the Special Powers Act had contained.(9) A 1975 review of the EPA by the government-sponsored Gardiner Committee(10) saw some minor adjustments in the legislation, which by 1978 was consolidated with its 1973 parent act into one piece of legislation, the 1978 EPA.(11) In 1984, another government-sponsored review recommended significant adjustment and expansion of the emergency powers.(12) In 1987, the EPA was further expanded by the incorporation of the Northern Ireland (Emergency Provisions) Act 1987,(13) which operated in conjunction with the EPA of 1978.(14) The most recent version of the EPA, introduced in 1991, consolidated earlier legislation, created new offenses, and brought into the EPA's domain provisions of the PTA, which were applied only in Northern Ireland.(15) In June 1995, the United Kingdom renewed the EPA, despite the unequivocal movement of paramilitary organizations to non-violent for-me of political activism.(16) Then, in December 1995, the government brought forward the renewal date of the EPA by three months.(17) By bringing the legislation quietly before the House of Commons for its first reading in the week before Christmas vacation, the bill was ensured minimal publicity and debate (as many members of parliament had already departed for the holidays). No nongovernmental human rights organizations were informed of its impending early appearance on the legislative calendar in the month of January.(18) In January 1996, the Secretary of State for Northern Ireland announced that the EPA would be renewed for two more years, with the extension commencing in August 1996.(19) In addition, the legislation moved a significant number of wide-ranging provisions concerning racketeering into the ordinary criminal law.(20)

The PTA was enacted in 1974, following the killing of twenty-one people in bombings in Birmingham pubs during November 1974.(21) It was derived from two earlier pieces of legislation: the 1973 EPA legislation(22) and the Prevention of Violence (Temporary Provisions) Act 1939,(23) which had been enacted for use against an earlier campaign by the Irish Republican Army (IRA).(24) Although the PTA was originally intended to expire after only six months, it has endured to the present.(25) Initially, the PTA was subject to renewal by Parliament every six months, but in 1976 it was reenacted subject to yearly renewal.(26) The statute was overhauled and updated in 1984(27) and 1989.(28) As with the EPA, there have been a number of major reviews and yearly assessments of the PTA.(29) As with the EPA, such reviews have been vaunted by the United Kingdom as demonstrative of the accountability and oversight of the emergency regime.(30)

Ongoing disputes, academic and otherwise, exist as to whether the political exigencies of the situation existing in Northern Ireland since 1973 warrant the imposition of such draconian legislation.(31) The existence of military cease-tires in the jurisdiction for seventeen months, from August 1994 to February 1996, makes this debate all the more significant.(32) During the cease-fire period, the absence of a sustained campaign of violence in Northern Ireland and the engagement of all parties to the conflict in bilateral negotiations completely removed whatever justification which may have previously existed for the use of the emergency powers. The United Kingdom's government, however, took no action on the limitation, repeal, or lapsing of its emergency legislation during this time, and conclusive evidence exists that by failing to rescind this legislation the United Kingdom violated its international legal obligations.(33) In fact, it may be argued that the continued imposition of such laws limited the negotiation process and facilitated the outlook in certain communities that the peace process had failed to deliver a tangible dividend.

It is axiomatic that the use of extraordinary laws restraining the rights and protections of individual citizens are counterproductive to the creation of a normal and functioning society. Since the official ending of the cease-fire period,(34) political negotiations and communal responses in Northern Ireland and the United Kingdom have been in a state of flux. Given the resumption of political violence, there may be an assumption that any discussion of the validity of emergency powers is now moot. That is not the case. The debate is all the more relevant as we discuss the interrelationships between "confidence-building" measures and the renunciation of violence, the links between excessive state powers and negative relationships between the state and its citizens, and the central notion that human rights abuses arising from the conflict are not only wrong in themselves, but also continue to perpetuate conflict.

This Article examines the imposition of the emergency regime in Northern Ireland during the cease-fire period. Section I explores the limitations on due process rights; the starting point for all emergency regimes.(35) Part II specifically investigates arrest powers, drawing upon the experiences of those detained by the state.(36) It finds that, during the negotiation cycle, the structures of the emergency regime continued to operate, though on a lesser scale, refining and modifying themselves to the requirements of the changed political situation. The overriding concern in this respect is evidence of the normalization of extraordinary laws, and the adverse impact this has upon democratic and legal structures. Part III looks to the abuse of the derogation provision under international human rights law by the United Kingdom.(37) Following from this, Part IV reviews the performance of government-appointed overseers of the emergency regime.(38) Frequently vaunted as independent and impartial, the Article underscores the contradictions inherent in their appointed role. Part V is concerned with fair trial and the abrogation of jury trials in Northern Ireland.(39) Part VI expands the discussion of the normalization of crisis powers, with a detailed overview of the removal of the right to silence in criminal proceeding in both the United Kingdom and in Northern Ireland.(40) Finally, the use in the United Kingdom of exclusion orders, a form of internal exile or banning, is considered in Part VII.(41)

1. DUE PROCESS RIGHTS UNDER THE EMERGENCY POWERS

   The due process protections of individuals are the rights which are most frequently and extensively limited under the emergency regime.(42) This is particularly true in Northern Ireland.(43) These rights are the most vulnerable to governmental intrusion and limitation when a state responds to crises by modifying its normal criminal processes, and are one of the most effective vehicles for streamlining the state's response to crises. Thus, arrest, detention, and trial are pivotal points of institutional response for the state. In Northern Ireland, the criminal justice structure has been a key component of the state's response to internal exigency from its very creation.(44)

   Using its criminal justice structure to respond to internal crises provides the state with two distinct advantages. First, it has a useful symbolic effect, in allowing the state to claim that crises are under control because ordinary processes are apparently utilized. Although the ordinary criminal justice system may have to be severely modified in order to contain crises, the appearance of normality is nonetheless maintained. Second, legitimacy is maintained through the use of legal sanctions, as opposed to extralegal measures.(45) However, the experience in many jurisdictions (including the United Kingdom) is that extralegal measures are part and parcel of state response, although they are partly concealed by the overt response of the criminal justice system.(46) In Northern Ireland, these concerns have centered primarily on allegations of a shoot-to-kill policy by law enforcers and on collusion between members of the security forces and paramilitary organizations.(47)

2. ARREST

   The Royal Ulster Constabulary (RUC)(48) relies primarily on Section 14 of the PTA(49) to facilitate extended detention in Northern Ireland. Sections 14(4)(50) and (5)(51) allow an initial arrest period of forty-eight hours,(52) which can be...