Political Violence and the Irish Question 69

Chapter 3
Political Violence and the Irish Question

Introduction

With Ireland and the United Kingdom working together as European Union partners and to provide stability so that Northern Ireland continues to enjoy its longest period of comparative peace since 1945, it is easy to forget the problems produced by the troubled relationship between these two islands on the western edge of Europe. Those problems had persisted since the ‘systematic colonization’ of Ireland undertaken under the later Tudor and early Stuart monarchs by means of ‘plantation’ of colonists to provide stability to a land England had occupied in part much earlier.1 Unlike other colonies, however, Ireland became an integral part of the United Kingdom, losing its own Parliament in 1800 after an abortive rebellion in 1798. The territory now comprised by Ireland (initially the Irish Free State) only ceased to be so in 1922 after a War of Independence managed to separate part of the Irish national territory. It was successful where earlier attempts to gain independence by violent means or gain more autonomy by constitutional means (Home Rule) had failed. But that separation did not ‘solve’ the Irish question. The presence in the north-eastern corner of Ireland of a majority of Unionists – some descendants of the ‘planted’ and mainly of Protestant religion – saw the island partitioned with six of the nine counties of Ulster remaining, as now, an integral part of the United Kingdom, but with a sizeable ‘nationalist’ minority, almost exclusively Roman Catholic in religion. Until recently, the Irish Government maintained a constitutional claim to Northern Ireland, and a number of nationalist groups worked within constitutional politics for Irish unity. It also produced violent irredentist nationalism in various manifestations of the paramilitary Irish Republican Army (IRA), illegal in both countries, which waged armed campaigns to try to achieve Irish unity and in times of sectarian crisis to protect the nationalist minority in Northern Ireland. These armed campaigns were resisted by United Kingdom security forces (police and army) and a variety of ‘Loyalist’ paramilitary groups, prepared to use violence to preserve a Protestant hegemony and Northern Ireland’s place as part of the United Kingdom. The IRA and other violent nationalist groups operated invariably as ‘anti-State’ terrorists. For the most part, ‘Loyalist’ paramilitaries acted as ‘pro-State’ terrorists or even as ‘proxy’ terrorists for the State itself.2 But they were not averse to armed resistance to the Crown to which they were supposedly loyal, or the deployment of industrial action paralysing the Province, if Government action was perceived to threaten the status of Ulster as part of the United Kingdom or involved the Irish Government too much in decision-making on the governance of Northern Ireland.3 The success to date of the Belfast ‘Good Friday’ Agreement of 1998 has seen the Provisional IRA (PIRA), the main nationalist paramilitary group, disarm and its political ‘wing’, Sinn Fein, take part in the government of Northern Ireland, leaving only fringe republican terrorist groups perpetrating a very low level of violence.4 ‘Loyalist’ paramilitaries have similarly withdrawn from political violence. The extent to which both sides engage in other criminality remains in dispute. Despite the electorate in the Province being polarized into sectarian camps represented mainly by Sinn Fein (nationalist) and the Democratic Unionist Party (unionist), May 2007 brought an historic establishment of a power-sharing devolved government with a DUP First Minister and a Sinn Fein Deputy. ‘Emergency’ anti-terrorist legislation (a permanent feature of Northern Ireland since 1922) remains fully to be dismantled. Moreover, while the focus in the United Kingdom’s anti–terrorist legislation has increasingly moved from ‘Irish’ to ‘international’ terrorism since the 1980s, the Terrorism Act 2000 built on earlier measures to deal with the extension (in most of the phases) of the IRA campaign to mainland Great Britain. And its post-9/11 response draws heavily on earlier measures to suppress political violence connected with Irish (and later Northern Irish) affairs since 1798 as well as on measures from the two World Wars examined in chapter 2.

One can identify a number of recurrent but not invariable features of that political violence and those suppressive measures. ‘England’s difficulty’, when facing invasion from other States (France in the Revolutionary/Napoleonic wars, the Kaiser’s Germany in the First World War and Nazi Germany in the Second), has often been seen as violent Irish nationalism’s ‘opportunity’. Hence support from the would-be invader formed part of rebellions in 1798,5 in 1916 and again in 1939–45, although the degree of support other than in 1798 was marginal. Financial and material support in terms of arms from the Irish diaspora, particularly in North America, has been a prominent feature from the Fenian dynamite war of the nineteenth century onwards.6 More recently, the IRA received support from Libya.7

Violent Irish nationalism has not confined its campaigns to Ireland, but has tended (other than in 1956–62) to extend them to Great Britain, and, in the case of PIRA which emerged as the dominant group in the 1970s, to British targets on the European mainland. Whether in Ireland or Great Britain, a prime suppressive mechanism has been widened criminal law and modified criminal processes, including in Ireland and Northern Ireland, the use of criminal courts sitting without a jury in serious criminal cases. But also prominent has been supplementing or providing an alternative to that criminal process by means of executive measures of internment without trial, of restrictions on residence and movement, of protecting Great Britain through orders prohibiting entry to or expelling persons (including British citizens) from Great Britain, and of deporting Irish citizens to the Republic of Ireland. In security terms, such powers have been seen to work best when that country was taking action against violent nationalism both through its modified criminal process (a juryless Special Criminal Court) and through internment without trial.8

Unsurprisingly, such measures (each affording their own administrative challenge mechanisms) have come before the courts. The same judicial deference is seen here as that pervading challenges to such powers in wartime (chapter 2), in dealing with undesirable ‘aliens’ (chapter 4) or in combating emergencies as part of the withdrawal from colonial empire (chapters 5 to 8). Individuals might win technical victories, rendered pyrrhic by a further application of the powers avoiding the technical error or with the defect removed by retrospective legislation. Major parts of the violent campaign to achieve Irish unity have occurred since the coming into operation of the ECHR. Challenges to anti-terrorist powers have provided some of the major cases before the Commission and the Court of Human Rights. They establish that there is an element of European judicial supervision of such executive measures restricting liberty, free movement and other rights, but that the ECHR bodies will accord a wide margin of appreciation to the State deploying them.

Seeking constitutional structures to reconcile communities with opposing political aspirations on the governance of Ireland has also been a prominent feature of the period, an attempt to win ‘hearts and minds’ and lessen support for paramilitary groups. Significantly, both in 1922 and 1995-to-date this has involved Government dealing directly with representatives of those previously condemned as terrorists, just as in Cyprus and Kenya.

The chapter divides treatment into four different phases of the campaign for Irish unity in the twentieth century, phases in which the exact line between those involved in political activity and those in the use of violent means has sometimes been uncertain. Each considers the executive measures used, the challenge mechanisms afforded and the response of national courts and, where appropriate, the ECHR organs. Those phases are: Home Rule to partition (1900-23); the 1939–45 campaign; the 1956–62 Border campaign; and from Civil Rights to urban terrorism/guerrilla war to lasting peace (1969–2007).

Home Rule to Partition (1900–23)

The intricacies of the Home Rule question have cogently been analysed by others.9 Prime Minister Gladstone’s desire from the 1870s on to end the ‘Irish’ question by according Ireland ‘Home Rule’ (a degree of self-government with a devolved legislature) split his own Liberal party. The existence in Parliament of a sizeable number of Irish nationalist MPs (the Irish Party) ensured the recurrence of the issue, Unionist opposition its longevity. Measures to achieve it passed the Commons but were rejected by the Unionist majority in the second chamber, the House of Lords. Moreover, the issue was hardly a vote-winner with the electorate in Great Britain.10 In Ireland itself, Unionists and Nationalists formed bands of armed ‘volunteers’ with Unionists determined to resist Home (Rome) Rule by force of arms, supported in their endeavour by the Conservative and Unionist Party and some Liberal ‘unionists’. It became clear to the Liberal Government, however, that the Army might not be willing to deploy to coerce Ulster. Its Government of Ireland Act 1914 passed into law without the assent of the Lords whose powers had been reduced by the Parliament Act 1911 to two years’ delay. It transferred certain powers to a devolved Irish parliament. The onset of the First World War saw it consigned to cold storage for the duration of the war, expected to be over by Christmas 1914. It was overtaken by events. Nationalist opposition to conscription in Ireland might ultimately have produced the same result, but the Easter Rising in 1916 by some of the Irish Volunteers, which lacked any substantial public support, in effect secured its ends of mobilizing nationalist public opinion against the Government because of the harshness of the Government’s response to what had been an unpopular rebellion. The Government overreaction succeeded where the rebels’ military attempt inevitably had failed. The execution of 15 of the Rising’s leaders after court martial trials under DORA and the internment of the rank and file of the rebels produced a swing in majority public opinion away from the constitutionalism of the Irish Party towards Sinn Fein by 1918. In striving for a political solution, Government failed to recognize the non-existence in Ireland of moderate ground. It was unwilling or unable to coerce ‘loyal’ Ulster, many of whose ‘volunteers’ had died for ‘king and country’ on the Western Front. Partition was the only workable solution in the circumstances existing at the time. The Government of Ireland Act 1920 devolving legislative powers to two Parliaments, one for Northern Ireland and another in Dublin for the remainder, also established a Council of Ireland to which those Parliaments might transfer powers. It was the culmination of Government attempts to find a reconciliatory constitutional compromise to an apparently insoluble political problem. For most of Ireland, these steps proved meaningless. Sinn Fein had in effect established its own Government, legislature (Dail Eireann) and some courts, and sought admission at the Versailles peace conference to the League of Nations.11 Since 1919, there had been an ongoing guerrilla war in Ireland between the IRA seeking an independent Irish republic and British Government forces aiming to restore law and order and a return to constitutionalism.

It was an escalating war of IRA attacks on policemen and police posts; a war of movement, of ‘flying columns’ and in rural and urban areas ‘hit and run’ roadside ambushes of Crown forces; of intelligence and counter-intelligence as Michael Collins succeeded in penetrating the heart of the Dublin Detective Branch intelligence operation; of the killing of informers and of the assassination of key British intelligence officers. It was a war in which ‘rebel’ forces were met by a range of Crown forces: the regular army and a militarized police force, the Royal Irish Constabulary (RIC), whose strength was augmented by the recruitment of former soldiers (the Black and Tans and an Auxiliary force). The war was one in which those forces with some government approval met terror with terror, with savage reprisals against people and property.12 It was a conflict in which ‘rebel’ forces fought with substantial support from Irish public opinion and as if they were the army of an established State.13 Indeed the British Government declined publicly to call it a ‘war’ to avoid enhancing Irish claims for belligerent status. The Sinn Fein Provisional Government and the IRA received substantial political, financial and material support from the Irish diaspora in the United States, including, late in the conflict, Thompson sub-machine guns. It was a conflict in which the British Government found little support in Irish public opinion, save in Ulster, and its deliberate reprisal policy steadily alienated British public opinion. The atmosphere is said to be vividly conveyed in Ken Loach’s 2006 film The Wind that Shakes the Barley. The conflict is analysed in a more scholarly manner in a number of works, on which the treatment here has drawn.14 Nor was the conflict confined to Ireland. IRA units also perpetrated attacks in major centres of population in Great Britain, hitting docks and public utilities.15 In the Unionist heartland, the conflict was more markedly sectarian, with major public order clashes between Catholic ‘nationalists’ and Protestant ‘loyalists’, and Loyalist ‘pogroms’ of Catholics, a degree of ethnic cleansing. Government mobilized the remnants of the Ulster Volunteer Force, eventually accommodating it in a Special Constabulary (the A, B and C Specials). The A and C soon disappeared, but the B Specials played a significant role in producing the breakdown of order in Northern Ireland in 1969. While the Government was not prepared to coerce Ulster into a united Ireland, leading Liberals sought to persuade them to leave the United Kingdom. As at April 1921, in Ireland 276 policemen and 99 soldiers had been killed, and 456 and 216 respectively wounded. There had been almost 10,000 raids for arms, more than 500 police barracks destroyed and 246 damaged. Sinn Fein claimed that British reprisals had seen 2000 private homes put to the torch.16 In Great Britain, Hart estimates that in the period October 1920 to the truce in July 1921, there were almost 400 cases of arson or sabotage, 25 robberies and 17 shootings. Most operations were in London, Liverpool, Manchester, Tyneside and Scotland. One policeman, five IRA men and four civilians were killed, with respectively nine, seven and eight wounded.17

The conflict settled, like the PIRA campaign in the last three decades of the same century, into a stalemate which desperately needed a political solution. A ‘truce’ was agreed. The Government then negotiated, as in the 1990s and as in the withdrawal from colonial empire (see chapter 5) with those it had previously condemned as criminals.18 The majority faction in the Dail accepted the resultant Anglo-Irish Treaty 192119 giving effective self government to the 26 counties of the Irish Free State and a Boundary Commission to consider the Border between the North and South of Ireland. The Northern Ireland Parliament had the right to opt out and soon did so, and set about constructing a ‘statelet’ in which unionists (mainly Protestants) would always hold power, protected against coercion into a united Ireland by a security regime modelled on DORA and the DORR. The Border Commission produced nothing of note.20 In the Irish Free State, the pro-treaty Provisional government (with support from the United Kingdom) won a civil war with the anti-Treaty irregulars.21 From 1925, Partition was a reality which produced peace for a time but within which lay the seeds of future conflict as the militant wing of Irish nationalism several times by force of arms sought to achieve its goal of Irish unity and the true ‘Republic’ (the other three phases analysed in this chapter).22 For this book, the more important question is how Government dealt through law with this political violence in the period 1916–23 in Ireland itself and in Great Britain. The question, interesting in itself, is the more important because in the methods chosen then and subsequently to deal with outbreaks of irredentist violent Irish nationalism, can be found the essence of much of the modern anti-terrorist response in terms of executive measures.

DORA Restriction of Movement and Internment

DORA internment came in two phases: immediately after the Easter Rising; and as part of the response to the so-called ‘German plot’ in May 1918.

The Easter Rising of 1916 saw the invocation of martial law under which a curfew was put into effect and it was proclaimed that those carrying arms risked being shot without warning. But action against the rebels was in fact effected under DORA and the DORR which operated throughout the United Kingdom. The only specifically ‘Irish’ change was to remove the right to jury trial (inserted into DORA in 1915), thus authorizing even the capital trial of civilians by courts martial under DORA rather than the military tribunals usually a feature of martial law. Martial law and its renewal were short-lived and there as a symbolic rather than legally important deterrent. Ample powers existed in the raft of wartime statutory measures.23

Initially, almost 3500 were arrested; orders were that all Sinn Feiners who had supported the movement were to be arrested even though they had taken no part in the Rising.24 Very soon afterwards, 1,424 men and 73 women were released. A few (159 men and one woman) were tried by courts martial. Only eleven were acquitted. Ninety, including De Valera and Countess Markiewicz, were sentenced to death. Only 15 were executed. The others received various periods of imprisonment. The Countess was saved because of her gender, De Valera (some thought) because of his supposed United States’ citizenship, although there is no direct evidence for this.25 Those suspects against whom there was insufficient evidence of guilt to put before a court martial were interned. Internment covered 1,836 men and five women, and saw their removal for security reasons, some to mainland prisons (Aylesbury for the women, Stafford, Usk, Lincoln, Lewes, Dartmoor and Reading prisons for the men) but the majority of the men to the two Frongoch camps in Wales (replacing German prisoners of war there). Initial detention was on the basis of custody pending charge or trial under DORA. Internment and removal, however, were effected by a misuse of DORR 14B. It was suggested that a new retrospective regulation specifically framed to cover participation in the Rising would be advisable to ensure the legality of action. Government, however, decided to proceed under 14B. That enabled detention or restriction in respect of persons of ‘hostile associations’. These

… could only have been associations with each other, not with foreign enemies. So the regulation was stretched and used for this entirely new purpose, for in no conceivable sense were the Irish detainees in effect enemy aliens, covered by Simon’s explanation of the purpose of the regulation in June of the previous year.26

A planned legal challenge never materialized, the internees being released before it ever came to court.27 The advisory committee that considered detentions must not have been troubled by it.28 As with internment in Northern Ireland 1971–75, the action was counterproductive in that the camps in particular became something of a ‘Sinn Fein University’ within which the ‘rebels’ maintained a degree of their command structure, and which enhanced cohesion among otherwise regionally disparate groups.29 Most were released relatively quickly, there being only some 550 still interned in mid-August 1916. An amnesty was granted for the remainder in June 1917.

In April 1918, faced with an initially highly successful German offensive on the Western Front, applying conscription to Ireland again became an issue. The government also wished to cripple Sinn Fein. DORR 14B was thought inaptly worded to catch Sinn Feiners not connected with discussions with Germany. The ability to exile Sinn Fein leaders to Great Britain using DORR 14 was thought inappropriate as leaving them essentially free there. Accordingly, but only in Ireland, 14B was amended so as to allow detention or restriction where someone was ‘suspected of acting, having acted or of being about to act in a manner prejudicial to public safety or the defence of the Realm’. In May 1918, 73 activists in Sinn Fein and the Irish Volunteers were arrested supposedly on the basis of involvement in aiding Germany and interned in England. This was an odd way of doing things since such (if true) would have justified detention under the unamended 14B (‘hostile associations’), but this ‘German plot’ was presumably highlighted to try to reduce Sinn Fein support. Most were released in March 1919. A ‘fresh counter-insurgency drive’ early in 1920 saw increasing arrests and detentions so that by May over 250 ‘rebel leaders’ were interned in England. Detention increased thereafter at a slower rate.30 Relatively few were held under 14B in Ireland and those on hunger strike in Dublin were released.

Restoration of Order in Ireland Act 1920: Restriction of Movement and Internment

The official ending of the war with Germany saw the demise of DORA and the DORR. From 31 August 1920 the Restoration of Order in Ireland Act 1920 (ROIA) enabled the effective continuance of 14B in terms of threats to ‘the restoration or maintenance of order in Ireland’ rather than ‘public safety or the defence of the Realm’. The powers could also be exercised by the relevant Secretary of State in Great Britain. Mass internment began after the assassination by Collins’ IRA ‘Squad’ of British intelligence officers on Bloody Sunday (21 November 1920).31 Essentially the Chief Secretary rubber-stamped recommendations by Divisional Commanders. By July 1921 4,554 orders had been made. Some were interned in England, others at camps near Dublin and Belfast. Internment now operated alongside a more draconian regime of military justice under ROIA and, in certain areas, martial law powers. None of this seems to have impacted significantly on IRA activity in Ireland.32 Hart estimates that in 1920–21 in Great Britain, well over 200 people were arrested, charged, convicted or interned on IRA-related suspicion.33 Internees in Ireland were released on conclusion of the Treaty. Action, including internment, continued to be taken in Great Britain under ROIA into 1923 against Irish individuals opposed to the Treaty, in effect being disguised extradition to aid the Government side in the fledgling Free State’s civil war.34

Northern Ireland 1922–23: Restriction of Movement and Internment under the Civil Authorities (Special Powers) Act 1922 (SPA)

In response to high levels of violence in Northern Ireland between December 1921 and the end of May 1922, the new Northern Ireland Parliament in 1922 enacted the SPA. Political violence in that period produced 236 deaths and 346 persons suffering injuries.35 There was a spate of sectarian assassinations attributed to the Ulster Protestant Association (UPA).36 The SPA enabled the Northern Ireland Government to take action and make regulations (SPAR) ‘for preserving the peace and maintaining order in Northern Ireland’,37 essentially giving the Executive the same powers as under DORA and ROIA. SPAR 23 (corresponding to DORR 55), gave the police and army extensive powers of arrest without warrant on suspicion of past, present or future prejudicial activity, possession of certain items or an offence against the Regulations, and enabled detention.38 SPAR 23A (restriction on residence and expulsion from an area) and 23B (restrictions and indefinite internment) conferred powers to deal in one or more of those ways with those ‘suspected of acting or having acted or being about to act in a manner prejudicial to the preservation of peace and the maintenance of order in Northern Ireland’ corresponding to those in DORR 14 and 14B, discussed above and, with respect to other wartime use, in chapter 2. Restriction orders were used independently from internment or detention.39 In 1922, persons arrested were split by the police into one of two categories. The first was made up of the organizers and perpetrators of serious crimes and those with the potential to be so. The second category were less important ‘rebels’ who if admitting membership or opposition to the Crown or the Northern Ireland Government could be released, after fingerprinting and photographing, if they agreed to leave or be deported from Northern Ireland. Apparently most of the Loyalists interned did so, emigrating to Canada and Australia. Other internees were ‘exiled’ to England or the Irish Free State for two years.40 Screening for deportation was eventually carried out by a court. Internment orders were made at the behest of the police. By May 1923, 575 people were interned and some 700 in all in the period 1922–24. Less than 20 were loyalists (mainly UPA members),41 the vast remainder republican/nationalist. They were held in prison (men in Belfast and Londonderry, women in Armagh Female Prison) and on a prison ship, initially in Belfast Lough and later in Larne harbour. Eventually the Larne workhouse and the Malone Reformatory were also used. Their cases were kept under review in response to a changing security situation. Many would later be released on terms or subject to a SPAR 23A or 23B restriction order which imposed ‘limits on the geographical area in which the exinternee could reside or enter, established bail, detailed requirements for reporting place of residence and regularly registering at specific times and dates at the nearest RUC station’, and required its subject to carry an identity card and to report an intention to be out between the hours of 11 at night and 5 in the morning.42 The parallel is striking with the post-9/11 creation and demise of detention without trial and the restrictions embodied in non–derogating control orders under the PTA 2005.43 Additionally, SPAR 23A orders were used to exclude suspects coming to the North from Great Britain or the Irish Free State or, if allowing entry, to restrict their operation to a small area and monitor them there.44 The SPA was enacted on the basis of necessity and was seen by the Northern Ireland Government as highly effective in restoring order:

Republican elements in the midst of the province, aided by sympathetic anti-Treatyists in the South, sought to overturn the constitutional structure of the State. Within months of its enactment, violence plummeted. Rather than repeal the legislation, though, the perceived effectiveness quickly became part of the defence for its continued use.45

The Act, as amended, was rendered permanent in 1933. It may be, however, that factors other than the SPA powers also had a role in the decline of violence, not least the bitter civil war in the Free State fully occupying militant nationalists who might otherwise have taken action against the North. Moreover, ‘the partisan manner’ in which the SPA powers were used ‘was the stuff of which future conflicts were made’.46

Administrative Challenge

The measures allowed representations against internment or restriction under DORR 14B and its progeny (but not under DORR 14 and its successors) to be made to the authorities for consideration by an advisory committee (AC). Such committees operated in the different jurisdictions in essentially the same manner as those governing alien and 14B internment in Great Britain (see chapter 2), but with rather mixed take-up and effect. There was typically an element of judicial or qualified lawyer involvement as chair and in each case their advice was in no way binding on the authorities. That chaired by Sankey released 69 per cent of those interned in England and Wales after the Rising.47 That in Ireland after 1918 (initially a judge and two MPs, later entirely judicial in composition) was scarcely used. The advice of the AC under the SPA in Northern Ireland to release was not invariably accepted.48 Initial use was limited, but in all 488 of the 732 interned resorted to the Committee.49 Neither Campbell nor Donohue indicate the success rate. Simpson notes the AC in England in 1923 dealing with a number of appeals in respect of the disguised extradition of Irish suspects under the ROIA but indicates nothing on the outcome. Lack of records precludes further analysis.

The Responses Tested in the Courts

Within Ireland, prior to the creation of the Irish Free State, the main questions before the courts were ones relating to courts martial under DORA and ROIA and ones regarding the legal nature and effects of martial law (prerogative or common law necessity). One case produced an Army/judiciary crisis. The cases indicated some room for judicial control.50 Within Northern Ireland, a challenge might have been mounted to the vires of the SPA (the competence of the Northern Ireland Parliament to enact it). The SPA and SPAR provisions essentially drew on DORA and ROIA, provisions arguably for the ‘defence of the realm’, a matter not within the Northern Ireland Parliament’s competence. Moreover, as was argued in R (O’Hanlon) v Governor of Belfast Prison,51 internment under the SPA was equivalent to the suspension of habeas corpus and thus contrary to the terms of the 1920 Act.52 The court failed to distinguish the position of the Northern Ireland Parliament (subordinate and limited by its constituent Act) from that of the Westminster Parliament (sovereign).53 Following R v Halliday, ex parte Zadig54 (the House of Lords’ decision upholding the validity of internment regulations under DORA), the court, ignoring the issue that had been argued, simply found that the SPR were not ultra vires. Moreover, ignoring dicta in ex parte Zadig, it denied that a court had anything to do with the matter of evidence against the detainee, only with whether he was legally held. O’Hanlon thus affords another instance of ‘judicial abdication … marking continuity with the British and Irish emergency law decisions of the previous years’.55 So too do two of the three cases brought in England.56 In R v Governor of Wormwood Scrubs Prison,57 Foy, a Dublin shop assistant, was held in that London prison under a DORR 14B internment order made five days before the signing of the peace treaty with Germany. Nonetheless, the court held that, legally speaking, the war that supported DORA and the DORR had not yet been brought to an end. Moreover, it was no part of the role of the court to judge whether military necessity had come to an end; whether the emergency still subsisted was a matter for the executive alone to determine. In ex parte Brady,58 the applicant, a member of a Sinn Fein organization, was detained under an ROIR 14B order with a view to returning him to Ireland, then still under full United Kingdom jurisdiction. The Court of Appeal, with one dissent,59 upheld the lower court’s view that the ROIA applied outside Ireland so that detention in England could be regarded as linked to the restoration of order in Ireland.60 He was removed and interned in Ballykinder.61 Arrests and detentions in Great Britain continued under ROIA even after the establishment of the Irish Free State in 1922, as part of British Government attempts to aid its Government in its civil war with those nationalists not accepting the Anglo-Irish Treaty. The detentions under ROIR 14B were coupled with administrative instructions identifying Ireland as the place of detention. O’Brien, a Sinn Fein organizer and suspected Irish extremist, challenged his detention. He was unsuccessful in the Divisional Court. But the Court of Appeal upheld his challenge; ROIR 14B had impliedly been repealed by the establishment of the Irish Free State. In addition, the court rejected the view that the Home Secretary could order persons to be detained outside the United Kingdom since he had no effective control over what happened to them there. Governmental attempts to challenge the decision in the House of Lords failed.62 In a reversal of the normal course, O’Brien was immediately re-arrested, brought into the criminal process, later convicted of seditious conspiracy, and jailed until 1924.63

The 1939–45 Campaign

The authorities in Northern Ireland, concerned at the bombing of a number of customs posts, introduced internment of nationalist suspects on 22 December 1938. The number of internees steadily increased and, after the outbreak of war with Germany, more were interned because of an announced IRA campaign of sabotage against military installations and war industries. By Mid-October 1942 400 men and a few women were interned without trial. Internment was for the most part in Belfast and Londonderry prisons, but, for a while, in deplorable conditions on an old merchant ship. Release was not authorized until near the end of the War, even though the IRA campaign had petered out by the end of 1942.64 An advisory committee was again established. There seem to have been no reported court challenges. Security in Northern Ireland and Great Britain was assisted by the Irish Government’s internment of IRA suspects in 1940. Neutral Ireland was concerned at the impact the IRA connection with Nazi Germany connection might have.

The IRA campaign also directed significant violent attacks on mainland Great Britain throughout 1939. The IRA declaration of ‘war’ came in January. The campaign was effectively over by the end of the year. In great part, it was countered through successful use of the criminal process (66 convictions by July, and large quantities of explosives and materiel for explosives seized by police).65 But it also produced a significant legislative reply in the Prevention of Violence (Temporary Provisions) Act 1939 (PVA) with the introduction, as temporary emergency provisions, of a range of executive measures: prohibition orders; expulsion orders; and registration orders.66 It was on this Act that was based the central governmental response to the PIRA campaign in Great Britain from 1972: the Prevention of Terrorism (Temporary Provisions) Acts 1974–89, the first of which was enacted after the 1970s equivalent of 7/7, the Birmingham pub bombings of 21 November 1974.67

The PVA – itself clearly owing much to SPAR 23A and 23B, examined earlier – made the Irish in Great Britain once more a ‘suspect community’ because of the violent activities of the IRA, seen by the Government as a ‘fascist organization’. The PVA proclaimed itself designed ‘to prevent the commission in Great Britain of further acts of violence designed to influence public opinion or Government policy with respect to Irish affairs; and to confer on the Secretary of State extraordinary powers in that behalf’, supplementing those under the ‘ordinary’ law.68 It was enacted in two days in response to the terms and execution of the IRA ‘S’ Plan (a photograph of which was in the Home Secretary’s hand during his speech on the Second Reading of the Bill). By July 1939 there had been 127 terrorist incidents in Great Britain, just under half in London, the remainder elsewhere, and the Government painted a picture of links with foreign organizations and threats to essential services, transport networks and the fire brigades. Further explosions occurred at the same time as the Parliamentary debates on the Bill. The worst incident in a campaign that had largely targeted property not people came after the 29 July enactment of the PVA. This was a bungled bombing in August in Coventry in which five people died. The bomb-makers, although not the ‘planter’ of the bomb, were convicted and executed. In the words of an historian internee in the 1970s,