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Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

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26 February, 2014
Civil Liberties, Colin Murray, Human Rights Law
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David Miranda

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

This post was first published on Human Rights in Ireland

Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons.

The problem, as so often is when counter-terrorism is at issue, is that when such exorbitant powers are assumed, legal systems can find it very difficult to constrain their abuse. The problem really comes to the fore when, as David Anderson QC, the UK’s independent reviewer of counter-terrorism powers, told Parliament on 12 November, criticism of the security services within the UK is often muted, partly because of national pride in their activities (dating from the work of the code breakers at Bletchley Park during the Second World War) and partly as a result of the 007 brand’s ongoing appeal.

This situation produces one key question. In rather feverish context of the security debate, and with a seemingly in-built national deference to the activities of the security services, what is to stop police and security officials from abusing extended stop and search powers? For over a decade the airport powers attracted little attention. This is especially the case when their operation is compared to the furore which surrounded the day-to-day use of extended counter-terrorism stop-and-search powers on the UK’s streets, which ultimately led to the European Court of Human Rights finding a breach of Article 8 ECHR. The police seem to have appreciated, as Joshua Rosenberg picked up from Anderson’s reports on the use of Schedule 7, that the power was not simply valuable, but that “like all valuable things, it needs careful handling”.

The powers suddenly became an issue of national importance with the detention for nine hours at Heathrow of David Miranda (pictured above), partner of US journalist Glenn Greenwald. The police were investigating whether Miranda had in his possession US national security documents received from the NSA whistleblower Edward Snowden. Embarrassing for a key ally perhaps, but where is the basis for using counter-terrorism powers, Greenwald and his supporters asserted? Miranda was not a member of any banned terrorist group. For the police, however, the link between these security-related documents and counter-terrorism powers was indirect, based upon the damage that the release of these documents could do to counter-terrorism operations. This attempt to link his case to terrorism has been likened to a “conjuror’s trick” by barrister and blogger Adam Wagner.

Yesterday the High Court ruled that a challenge to the legitimacy of this exercise of the power and to the compatibility of the power generally with the freedom of expression under Article 10 ECHR could not succeed. First off, Lord Justice Laws (giving the lead judgment) quickly dismissed the contention that the power had been used for an improper purpose, ie, that the examining police officers’ purpose in stopping Miranda was out with the scope of a counter-terrorism power. Laws LJ summed up the purpose of the Detective Superintendent involved stopping Miranda (at [24]): “given the connection with Mr Snowden and the latter’s movements, that the claimant might have been concerned in acts falling within the definition of terrorism in s.1 of the 2000 Act which might be carried out by Russia and designed to influence the British government”.

The key factor is that the court accepted that the definition of terrorism under section 1 of the Terrorism Act 2000 was broad enough to provide a basis for this arrest, notwithstanding that Miranda himself could not be described as a “suspected terrorist” (at [29]):

[T]he bare proposition that the definition of terrorism in s.1 is very wide or far reaching does not of itself instruct us very deeply in the proper use of Schedule 7. … S.1(2) is concerned only to define the categories of “action” whose use or threat may constitute terrorism: not to impose any accompanying mental element. Similarly, the expression “concerned in” in s.40(1)(b) is not to be taken to import the criteria for guilt as a secondary party which the criminal law requires in a case of joint enterprise.

As long as Miranda was linked to Snowden, who was intent on publishing materials which would influence government policy and could endanger the lives of UK agents, this was sufficient for the court to find that the purpose was proper (at [32]):

Putting all these features together, it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2). If the possibility is established, the statute prescribes no particular consequence. What happens will depend, plainly, on the outcome of the Schedule 7 examination including any searches where those have been carried out. There may be a prosecution for an offence under the Act, or indeed some other offence; materials in the subject’s possession may be retained if the general law allows it; the subject may be released with no further action.

In terms of whether the stop was proportionate, in light of Miranda’s involvement in journalistic endeavour, drew Laws LJ into a detailed consideration of the freedom of the press in general. Whilst he appreciated that importance of the public interest in a free press, the proportionality of any interference had to be judged in light of other public interests, such as national security (at [46]):

[There is] an important difference between the general justification of free expression and the particular justification of its sub-class, journalistic expression. The former is a right which belongs to every individual for his own sake. But the latter is given to serve the public at large; … It follows that so far as Mr Ryder claims a heightened protection for his client (or the material his client was carrying) on account of his association with the journalist Mr Greenwald … [t]he contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

Whilst he was not willing to give carte blanche to a public official’s assertions of security concerns (see [57]), Laws LJ was clear that valid security concerns had been made out in this case, and that he would not substitute a journalists view of these questions for those of government (at [71]):

Journalists have no … constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government …

Wrapping up, Laws LJ concludes that the powers (limited to a ports and airports context) are hedged by adequate safeguards. For all that complaints have already begun regarding the level of respect accorded to elected decision makers in the security context, it seems that the strongest ground for appeal is this briefly addressed issue of safeguards. After all, it was the basis on which the general no-suspicion stop-and-search power was subject to major reform in the Protection of Freedoms Act 2012, and is already under fresh review by David Anderson QC. This legal battle may be lost, the war over counter-terrorism powers looks set to rage on.

Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights

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13 February, 2014
Colin Murray, Human Rights Law
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Tom Watson MP (Picture Credit: The Telegraph)

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

This post was first published on Human Rights in Ireland

Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP.

His impact as a minister may have been limited, and his spell as Deputy Chair of the Labour Party might have ended ignominiously last summer, but as a backbench parliamentarian he has few equals. He knows how to use the power of select committees, castigating Rupert Murdock as a “mafia boss” when the latter appeared before the Culture, Media and Sport Committee. Alongside this grand standing comes the meticulous use of an MP’s privilege to question ministers. The House of Commons’ Questions Book overflows with queries over the minutiae of UK drone policy, systematic probing which aims to build up a picture of UK operations and to identify weaknesses in the Government’s legal and policy justifications. He is also a master of the Trojan-horse question, keeping the issue of drones alive even in tangentially related debates. A couple of weeks ago, in a debate on redundancies in the UK armed forces, he popped up with the following question:

[W]e have deployed military personnel in a US base in Djibouti. Please will he tell me what their role is? Are they involved in the drones programme in Yemen, and will they be affected by this cuts announcement?

Alas, readers, no substantive answer. For the UK Government is seemingly intent on boring Watson and his tenacious APPG into submission, or at least driving the public to disinterest. Questions on “drone strikes” are met by a blizzard of blandishments and technical-sounding acronyms. The UK doesn’t have drones, it operates UAS (Unmanned Aircraft Systems) or RPAS (Remotely Piloted Aircraft Systems) or UAV (Unmanned Air Vehicles), depending on the minister responding.

But Watson appreciates the limits of a parliamentarian’s reach. The APPG is well-resourced and backed by expert groups outside Parliament (declarations of interest show that the legal NGO Reprieve provides regular funding for a researcher to support its activities). Furthermore, in an effort to deflect the claims of political partisanship that invariably accompany any scrutiny work by MPs, Watson’s APPG has turned to commissioning and publishing legal advice on drones. And not simply on drones. With an eye towards the bigger prize, the legal advice sought by the APPG manages to elide the two most pressing security issues of our times; drones and electronic interceptions by UK spy agencies.

The advice, provided by the highly-respected Jemima Stratford QC and her colleague at Brick Court Chambers Tim Johnson, examines a scenario where the UK intercepts information (whether through the contents of an electronic communication or associated “metadata”), permits the United States to access it, and the United States then employs that information as the basis of a lethal drone strike. The barristers explain in their beginning of their advice (at [5]), ‘the authorities must establish that every step in the chain is lawful if they are to be permitted to carry on with these activities’, before making out what seems like a compelling case on which grounds UK law may fall foul of the requirements of Article 8 of the ECHR (the right to private and family life).

Their analysis is at its strongest when it comes to their discussion of various rouses which may be used by GCHQ to enable “mass” interception (ie, interception not permitted by a specific warrant) of contents of electronic communications within the UK (for example, by arguing that it is routed through a US-based internet server). Such efforts to circumvent the legal regime for intelligence gathering under the Regulation of Investigatory Powers Act 2000 are a key plank of the allegations made by Edward Snowden. And it turns out that with advice in hand focussing on this issue Watson is pushing at an open door. Figures who should know better, like Conservative grandee (and former Foreign Secretary) Sir Malcolm Rifkind, who heads up Parliament’s Intelligence and Security Committee, have in recent weeks spectacularly failed to coherently counter allegations over the legality of UK intelligence gathering. In a Channel 4 News interview Rifkind blustered that his committee’s oversight of Government Communication Headquarters (GCHQ) activities had been entirely appropriate as there was lawful authorisation of these activities under RIPA. This approach abjectly fails to deal with the contention in the Stratford/Johnson advice that it is not the existence but the “quality” of the law which is problematic in granting too broad a power to security agencies (see [35]).

Watson must have been laughing at this point, as the security community has so tied itself up in knots over an intervention before the European Court that Rifkind is reduced to repeatedly saying he thinks that the terms of RIPA are sufficient lawful authority. He would be wise to disappear from our TV screens for a while. All of this looks like pointing towards an easy win in Strasbourg, where Big Brother Watch v United Kingdom is pending before the European Court. High-fives for Watson on the way into Court (with a special degree of kudos for finding a way to hitch his APPG’s work on drones to the challenge to RIPA).

But as I noted last summer, the European Court has rarely challenged Security Service judgements over the requirements of national security and has often given considerable leeway, provided a legal framework is in place, on questions of whether interference with privacy interests are “proportionate” (for the classic example of this case law, see Klass v Germany). The claimants will have to establish that abuse of the RIPA framework has occurred or that the framework itself is inadequate constraint upon state surveillance. Even a “win” on the basis that there are not adequate protections surrounding the harvesting of metadata is unlikely to ultimately prevent the Security Services from undertaking this activity. As the Stratford/Johnson advice notes (at [46]):

RIPA is now 13 years old. As discussed above, the statute draws a sharp distinction between content and communications data. That distinction derives (at least to some extent) from the traditional ‘postal’ distinction between the address on the envelope and its contents. However, the significance of that boundary has been eroded by the realities modern internet usage. Communications data now encompasses each individual URL visited, the contents of an individual’s Twitter and Facebook address lists, messages posted on social media websites and numerous other significant elements of an individual’s online private life. Given modern trends in internet use, the binary distinction between contents and communications data has become increasingly artificial.

Precisely because this material is so useful for the work of security agencies across Europe, the European Court is highly unlikely, even if the current RIPA regime is found to be inadequate, to require specific authorisation for every interception of such information (as is required for the contents of communications). Defeat for the UK Government is likely to be embarrassing (and may require enhanced oversight), but in all likelihood GCHQ will be left with sufficient leeway to continue widespread surveillance of metadata.

As for drones, the supposed focus of the Stratford/Johnson advice hardly gets off the ground before running into the brick wall of the Khan case, where just last month the Court of Appeal emphatically refused to get drawn into passing judgment on the illegality of activities of a foreign state (in this case the US). The advice continues to look at the question based on the issue of data transfer ([85] onwards), but with the courts maintaining this stonewalling approach (effectively saying that claimants should pursue a claim against the US directly), it all begins to sound rather hopeful. So much for Government having to make out every step in the chain to win its case, if the courts will not even grant such claims permission to proceed to full judicial review.

Not that this issue necessarily matters. Fear of adverse judgements in the security sphere can have as salutary an effect on Government policy as joyful scenes of victorious claimants. The UK Government seems particularly defensive on issues of drone policy and intelligence sharing, as Professor Michael Clarke of the defence think-tank RUSI noted late last year:

We share information and it’s very hard to say that it is not used to target individuals. There’s a reasonable presumption that sharing information makes us complicit in the US policy…the UK silence [on the UK’s role in the US drone programme] is deafening.

Watson (with a little help from his legal team) appears to have his foes on the run even when the ground he stands on is weak.

Lost in Time? Controversy over Police Powers in Northern Ireland

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24 December, 2013
Civil Liberties, Colin Murray, Human Rights Law
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Image Source: http://www.bbc.co.uk/news/uk-northern-ireland-25412487

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

This post was first published on Human Rights in Ireland

The Troubles just won’t slip conveniently into history. In recent weeks anyone confident that Northern Ireland has “moved on” will have received multiple jolts to such complacency. A car bomb (and last night a fire bomb, pictured left) and Loyalist protests have disrupted shopping in Belfast’s city centre in the run up to Christmas. And as for the Troubles themselves, they have been a prominent part of the news headlines. Revelations UK army units operating beyond the standard rules of engagement in the 1970s. Outcry over the fate of the “disappeared” and over the strenuous denials by Gerry Adams over his own involvement. Shock over the detail of collusion between members of the Garda and the Provisional IRA in the findings of the Smithwick Tribunal. The risk of more bloodshed today running hand-in-hand with blood continuing to seep under the door marked “the Troubles” with every new revelation.

This barrage of stories has wrong footed many. Most obviously, Sinn Féin has seriously miscalculated in its response to the Smithwick Report’s findings, the Disappeared documentary and the conviction of Liam Adams. The dogmatic adherence to the line that Provisional IRA volunteers were “only doing their duty” in a dirty war has never washed for the UK Government in accounting for the actions of members of the UK security forces, and indeed, in responses to events such as the Saville Report, has now largely given way to outright apologies rather than attempted justifications.

Perhaps, in this atmosphere, Northern Ireland Attorney-General John Larkin misread the auguries when he put his head above the parapet and raised the possibility of calling a halt to investigations of Troubles-era political violence, finding himself alone in the face of a barrage of criticism. Maybe Larkin thought that a stultified debate over what to do about the past could be advanced by someone saying the unthinkable. At the very least he did prove that there are certain things that can unite politicians from all political perspectives in the Province. Victims must never be forgotten went the rallying cry, all the more galling when the Northern Ireland Executive has steadfastly failed to move any proposals to address victims’ issues since the Assembly was restored in 2007.

Still, the furore is nonetheless surprising. Few commentators can predict with any degree of accuracy what reports or comments will catch the attention of Northern Ireland’s politicians. October saw the Northern Ireland Policing Board published its extensive Thematic Review on the use of police powers to stop and search and stop and question under the Terrorism Act 2000 and the Justice and Security (NI) Act 2007. Maybe the title put people off, for the Review (despite being trailed by David Anderson QC, the UK Independent Reviewer of Counter-Terrorism legislation) generated almost no attention, despite the high levels of public concern over stop and search. Just this May the Northern Ireland Court of Appeal ruled that the stop and search under section 21 of the Justice and Security (NI) Act 2007 of a former IRA hunger striker and a brother-in-law of Martin McGuinness were unlawful (the Fox and McNulty Case). The Court concluded (at [45]):

A power vested in the police to openly stop and question a person is not the exercise of a covert surveillance power but it partakes some of the characteristics of surveillance.  The fact that it can lead to open stopping and questioning in circumstances which do not ensure even privacy between the police and the individual adds to the potential for invasions of the article 8 right.  It is a power which does require justification and which provides effective guarantees and safeguards against abuse.

As the Thematic Review found, working with both the Fox and McNulty decision and the jurisprudence of the European Court (ECtHR) on the right to privacy (p.27):

The case law of the ECtHR clearly establishes that covert and secret surveillance by state agencies constitutes a particular threat to democracy and freedom which requires strict justification in the interest of national security or for the prevention of crime. The system itself must provide adequate and effective guarantees against abuse.

It ultimately restated the importance of the ECHR in policing and security operations (p.110):

The debate about the police use of powers to stop and search and stop and question can become clouded by many false assumptions, which it is hoped are challenged in this thematic review, but what is abundantly clear is that the Human Rights Act 1998 does not value individual rights at the expense of the community. Rather, it provides a model for a functioning society within which certain rights can be limited while protecting the human rights of all members of society. The Committee has stressed many times, but wishes to restate its central message that there is no conflict between human rights and policing because policing is the protection of human rights.

Such conclusions should resonate not just through Northern Ireland, but into debates over treatment of individuals such as David Miranda as well. So why did the report get ignored? It must have been the title. Or are we, as a community, better disposed to looking back to the time of the Troubles, rather than considering how its legal framework continues to affect our lives?

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?

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.