The instrument through which the Northern Irish government sought to establish order and stability was the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 (hereinafter referred to as ‗the Act‘). The stated purpose of the Act was to ―empower certain authorities of the Government of Northern Ireland to take steps for preserving the peace and maintaining order in Northern Ireland, and for purposes connected therewith.‖86
The Act in itself was far-reaching (as is typical of such emergency laws) and critics would describe it as draconian in terms of the powers given to the Minister responsible.87 Although at the time of its enactment there were no international human rights instruments against which to measure the Act, even when measured against the then prevailing UK legislation and practice, it appears that the Act overrode certain rights and liberties which existed under United Kingdom legislation at the time88. In particular, the ability to impose detention without trial (referred to as internment) was clearly against the most ancient civil liberty enshrined in the laws of the United Kingdom: habeas corpus. Nevertheless one may note that even in the ‗human rights world‘ post-1945 –including in the contemporary developed world- we still witness internment or similar types of detention in circumstances where states claim emergency situations.
Laura Donohue has carried out one of the few academic evaluations of the impact of the Act89. She argues that the Act became a major component of the grievance held by the Catholic minority due to the arbitrary and discriminatory manner in which the powers under the Act were exercised, particularly after the immediate emergency of 1922 was over. The parliamentary debates in the Northern Ireland House of Commons show that the general lawlessness and
84Sydney Elliott, Northern Ireland Parliamentary Election Results, 1921-72 (Chichester: Political Reference Publications, 1973).
85Northern Ireland House of Commons, The Parliamentary Debates: Official Report, March 14, 1922.
86 Preamble to the Great Britain Parliament, Civil Authorities (Special Powers) Act (Northern Ireland), 1922, accessed January 18, 2011, http://cain.ulst.ac.uk/hmso/spa1922.htm.
87In this case the Minister of Home Affairs in terms of article 1(2) of the Act although the Minister could delegate any of his powers to a police officer.
88Such as freedom of assembly and trial by jury.
89Laura K. Donohue, ―Regulating Northern Ireland: The Special Powers Acts, 1922-1972,‖ The Historical Journal 41, no. 4 (1998): 1089–1120.
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violence in Northern Ireland was a very serious concern. In introducing the Bill the Parliamentary Secretary to the Ministry of Home Affairs stated that ―This is an exceptional time and requires exceptional measures‖.90 This view was echoed by Mr Robert J Lynn Member of Parliament for Belfast West when he claimed that, ―We are living not in normal, but in very abnormal times‖.91
Sir Robert Anderson MP framed the discussion on the Bill –in an earlier debate on the Motion to the Address- around the notion of rights and freedoms. While accepting that the various measures that would be included in the Act could be interpreted ―as coercive and as being vindictive‖ the motivation behind such measures was ―to secure the liberties and rights of the citizens of this community‖92. Furthermore, he made a point of stating that in these matters there was and should be no distinctions between different religions. This indirect expression of concern before the Bill was given a first reading in Parliament, that the resultant Act would be perceived as being anti-Catholic, proved to be well-founded. This matter was addressed directly in the debate on the second reading of the Bill where the Unionist MP Mr.M‘Guffin anticipated the criticisms that would be levelled at the Act by the Catholic community:
The Bill is not directed against any particular section or denomination. That is one thing sure. A great deal of capital will, in all probability, be made out of it, and we have seen it suggested even in certain quarters that the Bill is directed to the discomfiture of Roman Catholics, and to inflict signal injustice upon them.
No such purpose is in the view of the Government, and no such suspicion may be entertained with respect to it. It is introduced to bring peace and the restoration of order which appertains to the interests of all, to the whole body politic. That is the purpose of this Bill.93
Considering that no one really disputes that Northern Ireland, at this point in time, was both unstable and violent94 there seems to be a case for accepting the views expressed by the supporters of the Act upon its introduction. However, Donohue suggests that once the violence engendered by the partition subsided, the act was used by the Unionist controlled government as a tool ―to prevent the expression of republican ideals.‖ Furthermore, she also argues that Unionists considered the Act ―as necessary to maintain the constitutional structure of the North.‖
Linking this to the preceding discussion on self-determination, it appears that Unionists found the Act as a useful mechanism to protect their right to self-determination. This attitude is evidenced in some of the correspondence quoted by Donohue with representatives of Unionist associations stating that the Act was an important tool to protect their rights. The sentiment that the measures undertaken in terms of the Act were necessary for the protection of liberties is well articulated in the following letter to the Minister for Home Affairs:
90Northern Ireland House of Commons, The Parliamentary Debates: Official Report, March 21, 1922, col. 91, http://stormontpapers.ahds.ac.uk/stormontpapers/pageview.html?volumeno=2&pageno=85.
91 Ibid.
92Northern Ireland House of Commons, The Parliamentary Debates: Official Report, March 15, 1922, col. 41, http://stormontpapers.ahds.ac.uk/stormontpapers/pageview.html?volumeno=2&pageno=29.
93Northern Ireland House of Commons, The Parliamentary Debates: Official Report, March 21 1922, col.95.
94The causes for such violence and instability as well as its perpetrators, were however, a matter that was –and is- very much disputed by both sides.
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We are extremely proud to know that we have such a loyal advocate of our liberties that no encroachment can come without being noticed95.
In her detailed examination of how the Act was applied Donohue demonstrates that the regulations issued under the Act and especially the orders issued pursuant to these regulations were overwhelmingly impacting on the nationalist and republican communities. This was so in terms of the banning of public events, gatherings and marches, where Unionist/Protestant events were only banned rarely and then only incidentally; in censorship as applied to publications the censored or banned publications or films targeted by governmental orders were a mixture of republican and communist materials while Unionist/Protestant publications seem to have been immune from such censorship or banning. The anti-republican ethos of the Act was further strengthened with the adoption of a regulation under the Act prohibiting the display of the Irish flag. The fact that the police were authorised to remove such flags even where there was no evidence of a risk of disorder through such display (such as in staunchly Catholic areas) exemplified the political objective of the regulation rather than its public order nature. The analysis of the implementation of the Act led Donohue to conclude that:
...the government failed to distinguish between violent and non-violent challenges to the government. Thus although the emergency legislation was targeted at a small slice of the minority population, in fact its oppressive nature affected the whole minority community, establishing a sense of injustice that exploded with the civil rights marches.96
In summary, there is no doubt that the nationalist community felt targeted and abused by the Act and its implementation. Donohue claims that they had good reason to feel targeted especially after the violence had subsided. John Darby emphasises this perception held by the nationalist community:
In the administration of justice Catholics have long believed that the Special Powers Act, which placed considerable emergency powers in the hands of the Minister of Home Affairs, was aimed exclusively against the nationalist minority.97
At the same time as noting the nationalist perceptions, it is important to also view the Act from a Unionist and Protestant viewpoint. As noted in the parliamentary debates around the introduction of the Act, Unionists considered the Act as an important mechanism through which their rights and liberties could be protected. This points to a clear divide with Unionists viewing the Act as an instrument to maintain their rights and liberties (as well as public order) and Nationalists and Republicans (and thus most of the Catholic population) viewing the Act as an instrument of oppression that denied their basic rights of expression, association and political organisation.
This may serve to illustrate that both communities had a strong sense of rights-based approaches.
However, it also evidences that the two communities had very divergent views on what right and
95Quoted in Donohue, ―Regulating Northern Ireland,‖ 1100.
96 Ibid.
97Darby, Scorpions in a Bottle, 29.
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liberty are. This disagreement on the definition of human rights is, as shall be seen, a constant theme in the Northern Irish political discourse.