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Living History: The Boston College Case and the SPADs Bill

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18 June, 2013
Colin Murray, Human Rights Law
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2052704384– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

“The past invades the present, The present lives in the past, The future will never come.” The closing words of Robert Greacen’s poem, Procession, lamented the atrophy of unionism in the aftermath of partition. In the last week, the troubled passage of the Special Advisers Bill through the Northern Ireland Assembly and the UK Government’s fight through the US Courtsfor records of an oral history project held by Boston College (pictured left) indicate just how far Northern Ireland hasn’t come in tackling the Troubles’ legacy.

Both events relate to the victims of the Troubles. In the case of the SPAD Bill, completed its tortured journey through Stormont on Monday, much to the delight of its sponsor, the TUV’s Jim Allister. The legislation prevents anyone with serious criminal convictions from serving as special advisers at Stormont. In this context, serious criminal convictions inevitably relate to activities during the Troubles. Sinn Féin is the party directly affected by the measure, with several former Provisional IRA prisoners having held adviser positions to its leading representatives. It has doggedly defended the line that this legislation does not recognise the victimhood of former prisoners, and thereby creates a hierarchy of victims of the Troubles.

Sinn Fein’s legal criticisms of the Bill are twofold, and it seems inevitable that they will be tested in court. One, they assert that this legislation discriminates against its members on the basis of their political beliefs. Two, they believe that as the legislation applies no matter when a serious crime was committed, the legislation amounts to a retrospective punishment for the advisers’ crimes, contrary to Article 7 ECHR. The SDLP abstained from voting on the legislation because of these flaws.

The first argument has been played out in the courts before, when the Simon Community refused to employ former PIRA prisoners John McConkey and Jervis Marks. The House of Lords ultimately rejected their claim, despite acknowledging that it seemed to chime “with the often-expressed desire for a new start for Northern Ireland after the Good Friday Agreement” (at [29]). As Lord Rodger concluded (at [31]):

[There is nothing surprising, far less absurd or outrageous, in holding that [anti-discrimination legislation] allows such people to say: “No, I’m sorry, because of all I have suffered, I won’t employ you; I won’t serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.

With the courts having dismissed these claims once, it is unlikely that they will gain any traction with regard to arrangements surrounding government. As for the Human Rights argument, the focus on any litigation will be on whether this bar on becoming a Special Advisor amounts to a penalty, for the ECHR prevents the imposition of “a heavier penalty … than the one that was applicable at the time the criminal offence was committed”. The counter-argument will be that the measure does not constitute a penalty at all, but a protection for the democratic process. With regard to bars on prisoners voting, the European Court of Human Rights has explicitly recognised the leeway states have to protect their electoral systems where individuals have been involved in activities (such as political violence or electoral fraud) which undermines the democratic process (see Frodl v Austria, [28]). Any potential case would be the most important constitutional issue for Northern Ireland’s legal system for decades, for the courts have the power to strike down any Assembly legislation which fails to meet human rights standards.

Despite the weaknesses of the case, the legislation seems to use victims to score political points rather than serve their interests. That former paramilitary prisoners would have to have a role in Northern Ireland politics following the peace process was one of the most contentious issues in the Good Friday Agreement negotiations. Politicians can be elected to the Northern Ireland Assembly regardless of their past convictions (indeed, the MLAs who backed this legislation sit in the Northern Ireland Executive with former PIRA prisoners like Gerry Kelly). The DUP and UUP recognise that they cannot challenge Kelly’s position (or say, prior to his death, PUP MLA David Ervine, a contributor to the Belfast Project) without destroying the peace process, regardless of what might be said about his position by the victims of his bomb attacks. In that respect, this legislation is creating a hierarchy of victims, those whom others can use to score political points, and those whom they cannot.

If the SPADs Bill displays the failure of Northern Ireland’s politicians to move on from the Troubles, the Boston College case show the hubris of historians in thinking that they had. Led by journalist Ed Maloney, from 2001 the team at the Belfast Project went about recording interviews with former members of the republican and loyalist paramilitaries to provide an archive for historians to use after the participants in the interviews had died. As some of those involved died, Maloney began publishing and broadcasting material from the archive (including the award-winning documentary Voices from the Grave). This, in turn, drew the attention of the PSNI Historical Enquiries Team, particularly as some of the released material related to the murder of Jean McConville. Under the US-UK Treaty on Mutual Legal Assistance on Criminal Matters the UK requested that the US Government subpoena materials relevant to this investigation. Boston College fought against efforts at disclosure, on the basis that interviewees had been promised confidentiality.

On May 31st, the US First Circuit Court of Appeals delivered its latest judgment in the saga, a partial victory for Boston College. The appeal recognised that the College should only have to release material directly relevant to the McConville investigation, in light of the “heightened sensitivity” surrounding the free speech concerns inherent in academic research of this type. Rather than having to release fully 85 interviews, the College must now release only 11.

Maloney and his fellow researcher Anthony McIntyre celebrated the decision “as at least a partial indictment of the whole process” by which the US Government sought the release of information. Both the US Government, and the PSNI Team requesting the information, however, are simply fulfilling their roles under treaty and domestic law. Whether those roles overstep constitutional boundaries in the US may yet be a matter for the US Supreme Court, with further appeals a possibility. What the case does indict is the record of Northern Ireland’s politicians in dealing with the legacy of the Troubles, in leaving the Historical Enquiries Team to soldier on as the official organ for the investigation of serious crimes committed during the conflict.

The SPADs Bill and the Boston College case have attracted considerable hyperbole. Sinn Féin has accused the SDLP of abandoning the Good Friday Agreement in refusing to reject the legislation, whilst the Belfast Newsletter posed the doom-laden question of whether the “secret” Belfast Project archive could “end our peace” by triggering a raft of prosecutions. Together they exemplify the consequences of the failure to deal with the Troubles in any holistic way, and simply add to the malaise of recriminations afflicting politics in Northern Ireland.

Much ink has been spilt outlining what an effective Truth and Reconciliation (TRC) process might look like for Northern Ireland (not least on the pages of humanrights.ie). The events of the last week, however, show us what the absence of a TRC process will look like for years to come. Persistent court cases. Partial legislative fixes. Inquiries and rumours of inquiries. The resolution of each new crisis portrayed as a victory by one side or the other, with little overall regard for the interests of victims or advancement of the political process, just the hope that simmering discontent does not, once again, boil over. Will the future ever come?

Is the Problem of Rape Myths in the Criminal Justice System Overstated?

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16 June, 2013
Criminal Law, Dr Nikki Godden
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rapecrisispostcard

(Picture card ‘this is not an invitation to rape me’ from Rape Crisis Scotland.)

– Dr Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law Gender and Sexuality

The low conviction rate for rape – approximately 6 per cent where convictions are measured out of the number of reported cases – and the high rate at which rape cases filter out of the criminal justice system before trial is well known. One common explanation for these statistics is that rape complainants and cases are judged by reference to rape myths, which are false assumptions as to what constitutes rape, and when, where and between whom sex is typically non-consensual. Examples of rape myths are propositions such as: a woman wearing a short skirt is more likely to have consented to sex than a woman wearing less revealing clothing; rape victim-survivors report the incident immediately to the police; rape victim-survivors typically physically resist the perpetrator; subsequent sexual engagements between two people are more likely to be consensual than the first time they had sex. Failing to reflect women’s lived experiences of sexual violations, it is often said that reference to these myths result in complainants being treated with suspicion, cases not being adequately investigated or prosecuted, and defendants being acquitted relatively frequently. However, in an article in the Oxford Journal of Legal Studies which was summarised in the media (see here for example), Helen Reece argues that ‘rape myths’ are not as widespread as is commonly claimed, and do not hinder the investigation and prosecution of rape cases to the extent that is argued by many researchers, feminist activists and policy-makers.

Reece argues that the ‘rape myth’ explanation for the high attrition rate and low conviction rate is overstated. She explains that: one, ‘some of the attitudes are not myths’; two, ‘not all the myths are about rape’; and three, ‘there is little evidence that the rape myths are widespread’. While her point that the term rape myths has become shorthand for a wide collection of assumptions, attitudes and stereotypes about rape, sex, sexual behaviour and so on is fair, it is where she goes from here that is problematic. Reece seems to suggest that there is little that can be done to improve the attrition rate and conviction rate for rape cases. While improving the conviction should not necessarily be the main aim of reform in this area, and instead the focus should be on improving the treatment of victim-survivors through investigation, prosecution and trial (for example, see the treatment of victim-survivors at trial in the Oxford abuse ring case), Reece does not go down this road. Rather, her argument risks overshadowing and undermining efforts to improve the criminal justice response to rape and the treatment of victim-survivors. Indeed, she begins the article by arguing that the criminal justice response to rape does not need to be understood as a particular problem which should engender particular attention.

The Particular Problem of Rape

The ‘justice gap’ – that is, the large gap between the number of reported rape cases and the number of cases which result in a conviction for rape (the basis of the 6 per cent national conviction rate) – is frequently cited in academic articles and in the media to justify a focus on improving the criminal justice response to rape. Reece draws statistical comparisons to highlight high attrition and low conviction rates for some other serious offences, such as burglary, suggesting that there is no justification for a focus on rape (p 5). However, pointing to other crimes which have equally poor attrition and conviction rates does not mean that there is no problem to be addressed, although it does raise the question: why should time, energy, and resources be spent on attempting to improve the criminal justice response to rape in particular? While Reece anticipates and addresses answers to this question, she fails to adequately challenge the strongest and most significant reason for focusing on rape – the point that it is a gendered harm. Reece recognises that rape is ‘particularly harmful’, justifying academic, political, and legal attention, even if some other crimes have comparable attrition and conviction rates (when measured in the same ways; p 6). However, she challenges this position, noting that some feminists have argued that over-emphasising the ‘intrinsic trauma’ of rape may be a factor preventing women from recognising that they have been raped if they do not experience this form or extent of harm (p 6). This, however, is a narrow understanding of the harm of rape. Rape may be traumatic and may be psychologically and emotionally harmful, but what justifies particular attention to the crime is that it is a gendered harm – one which is most commonly perpetrated by men against women, reflecting and reinforcing male power and gender inequalities. As such, improving the criminal justice response to rape deserves and requires particular attention and effort, not only to secure justice in individual rape cases but to address gender injustices at the societal level.

Rape Myths that are Not Myths ; And Myths that are Not about Rape

Reece also argues that some of the ‘rape myths’ are not really myths, in the sense that they cannot be proven to be false. For example, she says the idea that there are a high number of false allegations of rape is often described as a myth. There is no evidence that there are more false allegations for rape than for any other crime, but there is little proof that there is not a high number of false allegations of rape, and therefore as this cannot be proven one way or the other it is wrong, she says, to label the false allegations assumption as a myth (pgs 16-17). Reece’s analysis of claims that are labelled myths when they are not factually proven as false is technically accurate, but it obscures the fact that the assumptions made are problematic.

This leads into another point she makes – that claims are given the status of myths when feminists argue that they are ethically or normatively wrong rather than wrong in fact. While Reece acknowledges that the ethical status of some commonly termed rape myths is acknowledged by some scholars (see references on pgs 9-10), she argues that it is ‘disingenuous’ to label the presumptions as myths (pg 22). Reece is right in so far as the label ‘rape myth’ has become shorthand for a variety of assumptions, gendered stereotypes, social norms, and so on. And some of these myths are primarily about sex – for example, reading or misreading an invitation to have coffee as an indication of willingness to have sex. But rape and sex are only distinguished by the presence/lack of consent and reasonable belief in consent (see pg 23). Assumptions as to when, where, and with whom women consent to sex/do not consent to sex are about the line between sex and rape, and what constitutes a criminal offence and what are otherwise lawful sexual relations. I fail to see how an assumption regarding consent to sex does not also raise assumptions about rape. But, in any event, if the assumptions, norms, and so on were more clearly conceptually distinguished and labelled, I would have no objection. What is objectionable is that Reece’s points about the mis-labelling of rape myths supports an approach which takes social, political, and legal attention away from addressing sexual violence against women, and instead focuses on abstract ethical debates.

Rape ‘Myths’ and the Conviction Rate

Reece argues that rape myths – presumably understood in the broad sense of incorporating ethical statements – do not affect the attrition and conviction rate to the extent that is commonly argued. Rather, she says:

‘There are a lot of [rape] cases where there’s no other evidence than one person’s word against another. Both sides are saying they had sexual intercourse but [don’t agree that it] took place in the [same] way … I don’t think there’s much more we can do to increase the conviction rate. I would like to see a more straightforward debate about the issue.’

But it is not that straightforward. From the facts, evidence, and testimonies, criminal justice personnel, judge, jurors, and so on must interpret whether the complainant consented and whether the defendant held a reasonable belief in consent. Interpretations of the circumstances and who is telling the ‘truth’ – the complainant or defendant – are informed by gendered norms regarding sexual behaviour. What counts as evidence is also contested – notably when, if at all, a complainant’s sexual history can be used as evidence of consent, or as grounds for reasonable belief in consent. Part of Reece’s point, though, is to challenge the extent to which social norms and rape myths do influence interpretations of evidence and the complainant’s and defendant’s perspectives. In this respect, she critiques the methodologies of research studies which investigate ‘rape myth acceptance’. Reece raises some very good and valid points, and feminists and others writing on rape and sexual violence should pay close attention to the studies they are citing as evidence of public attitudes towards rape. What I do not think necessarily follows is that problematic attitudes towards sex, and women’s sexual choices and behaviour in particular, are not as widespread as is commonly claimed. Looking at the wider picture illustrates this: for example, victim-survivors’ experiences of the criminal justice system and how they can be treated by criminal justice personnel; or public and media commentary on recent attacks, such as in Steubenville, Ohio; or the everyday sexism and sexual objectification that women experience.

In addition, it is not just only the conviction rate that is a problem, but the way that victim-survivors are treated in the criminal justice system and at trial. Sometimes this relates to attitudes that are held by criminal justice personnel, sometimes it is a lack of regard for or lack of knowledge about rape victim-survivors’ experiences and needs, and sometimes it may be a lack of resources for victim-survivors. While the criminal justice process should be improved to ensure that victim-survivors are properly treated and are not subject to further harm, these points do also relate to the conviction rate. The high rate of non-reporting is related, in part, to victim-survivors’ perceptions of inadequate criminal justice responses to rape, and some victim-survivors withdraw their complaint because of a negative experience in the criminal justice system. Reece’s argument risks overshadowing and undermining efforts to challenge gendered social norms which restrict women’s sexual choices and to improve the criminal justice response to rape, and the treatment of victim-survivors.

Alternative Revenue Sources for Copyright Owners in the Digital Age

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12 June, 2013
Media Law, Victoria Hall
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Orangecopyright

– Victoria Hall (MJur, Durham University) vicky.hall@durham.ac.uk

With regard to the music industry, there is one major source of revenue which is, unsurprisingly, usually left out of copyright owners’ calculations when producing profit and loss reports. Clark argues that ‘revenue opportunities being afforded to touring, live performances and merchandising outstrip record sales by some distance’. Moreover, the live music industry seems to be going from strength to strength. Pollstar claims that ‘Between 1999 and 2009 concert-ticket sales in America tripled in value, from $1.5 billion to $4.6 billion.’ This trend was set to continue, as in 2012 the ‘Top 100 Tours in North America generated a combined gross of $1,125.9 million, up 1.2 percent over last year [2011].’ The continuing growth and popularity of live concerts can be attributed to one key fact: ‘There is no way to digitally recreate the excitement and atmosphere of a live concert.’ Concert lovers will always pay to see their favourite artists live, irrespective of whether or not they own the track(s) performed. This is surely a key way in which copyright owners can continue to obtain substantial revenue, to help subsidise a far cheaper retail value for their recorded material.

Advertising will also be a key factor in the reshaping of the copyright landscape. It offers a good, reciprocally beneficial arrangement to both the advertisers and the host forum, and, ultimately, the consumer at the end of the chain.  This could be achieved both through the website selling the concert tickets, as well as at the venue itself. This two-fold advertising campaign could realise even further profits. Artists are simply not taking sufficient advantage of the alternative revenue sources available to them. Perhaps this is because, although it is in their own interests, it is not in the interests of the ultimate copyright owners: their record labels. Before too much pity is felt for recording companies however, it should be noted that, despite the prevalence of copyright infringement, ‘Digital music revenues to record companies grew by 8 per cent globally in 2011 to an estimated US$5.2 billion. This compares to growth of 5 per cent in 2010.’ Claims that record companies will struggle and fail in the current climate do not seem to be upheld by the real facts and figures.

It would appear that the creators themselves, those being the individuals copyright law was supposedly developed to protect, generally support these alternative systems. Many artists have experimented with these methods, and have, by and large, been successful in doing so. Some bands have provided free copies of their music to fans to publicise their live tours, of which McFly, The Kinks and Prince are just a few. Indeed, Prince found his album giveaway to be so successful (it led to a record breaking, sell out concert tour) that he repeated the experiment with his next album. Whilst it is undeniably unfortunate for high street record shops to have to suffer as a result of this, this cannot be a sufficient reason to deter the trend. High street retailers will simply have to adapt to the new changes in digital technology, just as producers of floppy disk and VHS cassette equipment (to name but a very few examples) were forced to do before them. Technology will not wait.

Yet it seems to be a commonly held belief that it should, or that providers of outdated technology have some sort of right to continue to profit on their increasingly redundant products. Duboff states for example that ‘In the United Kingdom, digital growth during 2011, reported at 24.7 per cent by the BPI in February 2012, only offsets two-thirds of the decline in income from sales of physical  music products.’ But why should digital sales have to ‘offset’ physical products? The decline in sales of physical music products, is an unfortunate (for those involved in their production) but inevitable consequence of technological advancement, and has been throughout recent history. There should be no obligation to, in some way, ‘subsidise’ this sector. Many retailers of physical music products have altered their business models to suit the now flourishing digital market. This is arguably how it should be.

For the most part, consumers tend to support this model too, as the consistent growth of concert ticket sales mentioned above indicates. This may be because live concerts are seen as special events by consumers, to be remembered long afterwards, and are categorised entirely separately to the purchase of a track or album. As Wing points out, for some there is no substitute for the experience. The time and expense expended on organising and producing the event is more evident to the consumer, who is therefore more willing to pay a relatively large sum for a ticket.

So if artists and consumers are in favour of using live concerts as a major source of revenue to subsidise low material sales, why is this not now merely commonplace? The answer, unfortunately, leads to a serious obstacle. Record labels, which make their profits from record sales, are against this sort of shift in revenue sourcing. Bearing in mind that they now tend to be the copyright owners, it becomes clear why more artists are not changing their business models to accommodate this new change in demand. Until a more fundamental overhaul of the nature of copyright itself has occurred, this convenient and sensible option will most likely be shunned by the powerful creative industries.

It is not only music artists who have used the potential of free material to tempt individuals to ultimately pay for more in the future. The BBC has recently released a Youtube-only nature documentary channel, aimed at teenagers. It aims to attract a new audience to what the BBC has to offer. Clearly it recognises the direction most new users are taking when it comes to material for entertainment. The channel is a good example of a short term loss in order to, hopefully, reap long term rewards by attempting to secure the patronage of the next generation. A more cynical view may be that the BBC has decided that, ultimately, ‘if you can’t beat them, join them’.

 

Sources:

  • Clark, R ‘Sharing out online liability: sharing files, sharing risks  and targeting ISPs’ in Strowel, A (ed) Peer-to-Peer File Sharing and Secondary Liability in Copyright Law 2009 Edward Elgar Publishing Inc. At 196-228, 197.
  • Duboff, A ‘IFPI Digital Music Report 2012 – what’s the story?’ [2012] 23(4) Ent.L.R. 96-98, 98.
  • Wing, M ‘The digital copyright time bomb in the BRIC economies, some ideas from the UK for the Indian market’ [2012] 54(4) Int.J.L.M. 302-210,307.

The Changing Winds of Planning Law

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8 June, 2013
Catherine Caine, Environmental Law, Planning Law
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I(mage Source: http://www.flickr.com/photos/65193799@N00/34030128/)

– Catherine Caine (LLM Environmental Law and Policy, Newcastle University) c.a.caine@newcastle.ac.uk

Wind farms have often managed to divide the nation. Whilst some view wind turbines as a clean solution to our energy sourcing problems, others regard them as a blight on our countryside. Both sides have fought their arguments with passion and rigorous debate. However, one undeniable fact running alongside the wind farm debate is that our need to mitigate climate change cannot be ignored. By agreeing to increase the proportion of renewable energy in the UK’s total energy consumption figures to fifteen percent by 2020, the UK has already made a commitment within the European Commission to change for the future. However, recent news indicates that a change in planning guidance could compromise the UK’s ability to meet such targets.

Following on from the Coalition Government’s Localism Act 2011, the focus on planning law has shifted towards a decentralised system whereby local communities are afforded the opportunity to have their say in local planning decisions. Within this, a general power of competence was afforded to local authorities to allow them to take reasonable action needed for the benefit of the authority, relevant area and residents. It is anticipated that upcoming planning guidance will allow local authorities and residents to have a greater say on whether or not wind turbines should be erected within their area. The announcement has created somewhat of a double-edged sword whereby local communities are capable of overriding national energy requirements by refusing plans to construct wind farms; however, increased financial incentives will be imposed to encourage local communities to consider wind energy. The Energy Secretary, Edward Davey, has stated that the announcement “will ensure that communities see the windfall from hosting developments near to them, not just the wind farm”.

The expected planning guidance will “see a five-fold rise in the benefits paid by developers to communities hosting wind farms”, with subsidies provided to the local communities that decide to include wind farms in their planning decisions. The wind farm company RES in Meikle Carewe near Aberdeen has demonstrated how a similar scheme can be of benefit to the local community with local residents receiving £122 off of their annual electricity bills. Interest in the scheme has been expressed in Bryn Llywelyn, Wales, with three-quarters of residents showing an interest in taking part in the scheme offered by RES. By providing a financial incentive to local residents for the construction of wind farms, it is arguable that wind farm development will begin to see a shift in popularity.

However, as well as providing a financial incentive to the communities that do wish to utilise wind energy, the planning guidance will also allow communities that do not wish to reap the benefits of wind energy to refuse wind farm development in their area. Many views on this aspect of the proposed guidance suggest that the reforms could in fact allow a nation of ‘NIMBYs’ (“not in my back yard”) to kill our future of onshore wind farms. The argument presented by Mark Prisk, Housing Minister, clearly states that the need to meet the UK’s energy targets does not justify “the wrong development in the wrong location.” However, the extent to which a community should have the right to determine the energy infrastructure of the UK can be called into question. Indeed, if the local communities surrounding some of our largest power stations had the opportunity to refuse their development on the basis of a NIMBY attitude, the energy infrastructure that the UK enjoys today would look dramatically different. It is well understood that nobody wants to suffer an eyesore in their area. However, without the eyesore, there can be no energy generation.

The anticipated planning guidance will not only have an impact on a local scale. With the potential refusal from local communities to tolerate onshore wind farms, the UK’s targets within the European Commission could also be affected. However, with the Coalition Government opposing attempts to set new renewable energy targets, opting instead to focus on a new decarbonisation target for 2030, it has been argued that the Government is refusing to commit to renewable energy through its preference for the use of shale gas. The anticipated planning guidelines reflect this non-committed approach from the Government towards the use of renewable energy as a main source of the UK’s energy.

Whilst the effect that the upcoming planning guidance will have on future wind farm developments in the UK remains uncertain – the fact that wind farms divide the nation, and are likely to continue to do so, remains undisputable.

All Liars: Thatcher and the Troubles

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25 May, 2013
Colin Murray, Constitutional Law
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MARGARET-THATCHER---1983-007

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

‘I’ve got one thing to say to you, my boy … you can’t trust the Irish, they are all liars … and that’s what you have to remember, so just don’t forget it’. Death cannot constrain the effervescent charm of Margaret Thatcher. Or maybe Peter Mandelson, who revealed this gobbet of bile to the world in the aftermath of her death, still knows how to skewer his political opponent with an anecdote to which she can’t very well respond.

Fabrication or not, the story had enough of a ring of truth to it to eat up column inches in the aftermath of Thatcher’s funeral. Kevin Meagher’s New Statesman blog post sums up the reflexive response the story; the quote was the product of ‘Thatcher’s own strident unionism’. Conversely, claims by her official biographer, Charles Moore, that her hatred was directed only towards terrorists and not to the Irish as a people, and that her comments to Mandelson reflect the early stages of her dementia, seem all-too-convenient.  I’m not sure that the story can be dismissed as either simple paddy-wackery, or that her comments can so easily be brushed under the table.

Thatcher was UK Prime Minister throughout the bloody slog of the 1980s (and a cabinet minister and leader of the opposition for the 1970s). She had therefore been party to most of the false starts and peace initiatives of these decades. Moreover, Mandelson revealed that their conversation took place at the time of his appointment as Northern Ireland Secretary, in the crucial phase after the introduction of power sharing following the Good Friday Agreement, when negotiations were still needed to bed-in policing reforms, secure paramilitary decommissioning and bring the DUP fully round the table. The “all” in her statement is telling. Loyalist, unionist, nationalist and republican were, for Thatcher, allIrish, and were arguably the collective subject of her ire.

The loss of her Shadow Northern Ireland Secretary (and the man who had masterminded her Conservative Party leadership campaign), Airey Neave, to an INLA car bomb just over a month before her 1979 general election triumph is often regarded as having a dramatic impact on her approach to the Troubles. It certainly affected the early years of her administration. In many respects Enoch Powell, Ulster Unionist MP for South Down since 1974 (having been exiled from the Tory party in the wake of his “Rivers of Blood” speech), is the Svengali of the piece, trying to control Thatcher’s administration from off-stage.

Powell was convinced that only full integration of Northern Ireland within the centralised government structures of the UK could avert a united Ireland. He met with Thatcher privately, goaded her publically and at one point even claimed to have struck a secret deal with Airey Neave over the direction of Northern Ireland policy. Under this influence, the Thatcher administration seemed to hold firm to a policy of greater integration of Northern Ireland with the remainder of the UK. Her government did not see any return to special measures such as internment. The use of targeted extra-judicial killings, such a prominent part of Labour’s policy in the late-1970s, was scaled back. Instead, Thatcher was determined to deal with terrorism in Northern Ireland through the “ordinary” criminal justice process (at least, as ordinary as any system using Diplock Courts and a raft of special terrorism offences can be): ‘Crime is crime is crime, it is not political’. Her attachment to this position, which saw the removal of Special Category Status for all paramilitary prisoners in March 1980, precipitated the Hunger Strikes of 1980-1981.

The Thatcher Government’s integration policy, however, was never as dogmatic as her critics have made out. “Criminalisation” was less a gut reaction to groups Thatcher would gladly have dealt with by entirely military means, than a way of buying off Powell and his acolytes. For as Thatcher conveyed the public image that violence in Northern Ireland would be treated by her Government in the same way as violence anywhere else in the UK, her ministers were laying the foundations for a major effort to address nationalist grievances over the mis-government and abuse of power in the Stormont Parliament era. From 1980 onwards, White Papers began to hint towards an “Irish dimension” in Northern Ireland’s governance.

A culmination of factors brought the new policy to fruition. First, the Hunger Strikes broke the integrationist spell. “Treat Northern Ireland like any other part of the UK” was clearly an inadequate prescription. Powell’s grip on Thatcher weakened as her own star rose following the Falklands War. When Argentina invaded the Falkland’s Powell had thrown the Iron Lady epithet in Thatcher’s face, telling Parliament that the weeks ahead would show “of what metal she is made”. Two years later, the Brighton bombing might well have increased Thatcher’s hatred for Republican groups, but it also gave her useful leverage to deal with them. The final, and most important, piece of the puzzle came about with the election of theFine Gael-Labour Coalition Government in Ireland in December 1982. It is easily forgotten at 30-years remove how powerfully Charles Haughey feared that doing a deal with Thatcher would alienate his republican base. Indeed, the archives of the Thatcher Foundation reveal how Haughey-Thatcher negotiations would often send UK policy “back to the drawing board”. The Coalition Government avoided these preoccupations.

Despite this confluence of favorable circumstances in the early 1980s, it soon became clear to Garret FitzGerald that Thatcher herself was an impediment to inter-governmental negotiations, not necessarily for the UK Government view she put across, but for her own relentlessly patronising manner. The Anglo-Irish Agreement which emerged from these tortured sessions (and more substantively, from civil service an ministerial meetings at which Thatcher was absent) stands as a legal landmark, introducing permanent as opposed to ad hoc inter-governmental co-operation in the governance of Northern Ireland and a permanent secretariat, part-stocked by civil servants from the Republic, based in the Belfast suburb of Maryfield. Thatcher held her nose, held her nerve, and signed.

At a swoop, the Agreement sundered Enoch Powell’s efforts to have Northern Ireland fully integrated into the remainder of the UK. He seethed, and amid the “Ulster Says No” protests he once again harried Thatcher in Parliament, warning her that ‘the penalty for treachery is to fall into public contempt‘. The Unionist MPs launched a mass series of by-elections to highlight their fury, with Powell narrowly retaining his seat.

The Agreement’s short term impact was to deepen divisions. It would take over a decade for ardent anti-Agreement Unionists like Michael McGimpsey (who famously challenged the constitutionality of the Agreement before the Irish Supreme Court) to advance to the front rank of pro-Good Friday Agreement Unionism. But members of Thatcher’s Government laboured to make the Anglo-Irish arrangements work and to spur other peace initiatives. Only the declassification of documents under the thirty-year rule will disclose the full extent of Thatcher’s knowledge of the first, tentative, Hume-Adams talks in 1988. Nonetheless, the message put across in Northern Ireland by her last Northern Ireland Secretary, Peter Brooke, built on this dialogue. Brooke would be the first Northern Ireland Secretary to float the idea that future talks could involve Sinn Fein, opening the channels for dialogue into the 1990s.

Looking back at the Anglo-Irish Agreement now, its position as a “game-changing” event in Northern Ireland’s history seems self evident. But, in publishing her memoirs The Downing Street Years in 1993, Thatcher was still patently queasy about her administration’s approach to Ireland, and about the Agreement in particular:

I started from the need for greater security, which was imperative. If this meant making limited political concessions to the South, much as I disliked this kind of bargaining I had to contemplate it.

Even in 1998, when the co-operation between the UK and Irish Governments had borne fruit in the Good Friday Agreement, Thatcher could not resist scratching at old wounds. Reviewing a biography of Enoch Powell, she came close to dismantling her own legacy, revealing how Powell’s barbs in the aftermath of the Agreement had wounded her: ‘hisassessment was right, though I wish that on this as on other occasions he had been less inclined to impugn the motives of those who disagreed with him’.

I often seem to reach for the adage that if some policy or actor in Northern Ireland politics seems to be annoying all sides then they must be doing something right. Perhaps Thatcher is the exception to the rule.Throughout her tenure as PM she found herself neck deep in the skullduggery and machinations of Troubles-era politics. Republicans tried to murder her andmurdered her colleagues and friends. Unionists repudiated her with all the vitriol they could muster. If she did hate the Irish, collectively, then to all intents and purposes it must have seemed to her that the feeling was mutual.

And yet the Anglo-Irish Agreement and Hume-Adams talks were the foundations on which the peace process was built. Thatcher must at once be seen as a figure who deepened the divides of the Troubles and who ultimately helped to pave the road out. Ironically, for the woman who brought Saatchi & Saatchi into UK politics, an image problem will forever hang over her achievements in Northern Ireland. The impression lingers that what good she did, she often did in spite of herself.