In important ways, the recent Fresh Start Panel Report on Paramilitary Groups is about the past. It dusts off and presents as new the failed security approaches of Roy Mason and Margaret Thatcher.
Its recommendations relating to what it calls “Dissident Republicans” are uninformed, reckless and will in the end prove ineffective.
The background to the Report is familiar. In August 2015, the Chief Constable stated that the police were actively pursuing a line of inquiry about Provisional IRA involvement in the killing of Kevin McGuigan, whose death was widely viewed as a reprisal for the murder of former Provo commander Gerard ‘Jock’ Davison. That statement led the Secretary of State, Theresa Villiers, to appoint three independent examiners to review the MI5 and PSNI assessment of paramilitary groups on ceasefire. The Davison-McGuigan killings and the subsequent paramilitary assessment about the persistence of leadership structures, including the Provisional Army Council, ensured that paramilitarism would become a major part of the ongoing talks at Stormont.
The outcome of those talks, the so-called “Fresh Start” Agreement reached in November, made provision for a number of new bodies as part of a strategy to end paramilitarism. The Fresh Start Panel itself was provided for in Section A, Paragraph 4.1: “A three person panel will be appointed by the Executive by the end of December with the task of bringing back to the Executive for agreement and action a report before the end of May 2016 with recommendations for a strategy to disband paramilitary groups.”
The Fresh Start Panel Report was published on 7 June, two days before the release of the Police Ombudsman’s public statement on the murders at the Heights Bar. Understandably, the work of the Panel was overshadowed by the focus on Michael Maguire’s unambiguous determination of the significant role that state collusion played in the carnage at Loughinisland. Villiers’s hopelessly inadequate comments on Maguire’s finding and the tardiness of the Executive’s response ensured intense public concentration on the issue of collusion.
The limited discussion of the Panel and its Report has so far addressed the Provisional IRA and loyalist paramilitary groups. Given the circumstances of the Panel’s birth, there has been periodic political controversy about the continued existence and influence of the Provisional IRA. The Panel Report’s implications for loyalist paramilitaries in particular have been recently examined by both Allison Morris and Newton Emerson (Irish News, 8 and 16 June; Irish Times, 16 June).
Two other issues have emerged in the wake of the Panel Report. First, the Panel has been criticized for failing to consult with the family of Kevin McGuigan (and other families), a curious omission since McGuigan’s death was the catalyst for the creation of the Panel. Second, former Sinn Féin Councillor Danny Lavery has criticized the Panel’s recommendation for a decommissioning mechanism to deal with “residual weapons or materiel” (para. 4.41). He is concerned that any new decommissioning scheme may provide a legal shell for the destruction of weapons that could be used as evidence in pending legal actions against the police failure to prevent a loyalist arms shipment from South Africa. That shipment has been linked not only to the murder of his brother Martin and the deaths at Loughinisland but to over 70 murders and attempted murders.
To date, then, public commentary on the Panel Report has raised some important issues but has also been sporadic and selective. The Report deserves more attention than it has so far received. My purpose here is to examine some of the broad themes of the Report, especially as they relate to republican groups opposed to the Good Friday Agreement and related agreements.
While parts of the Report are primarily concerned with paramilitary groups on ceasefire, the Panel does note that “the greatest threat to security is the armed campaigns of what have come to be known as Dissident Republican (DR) groups” (para. 2.7). And it says that “Many of our recommendations will apply to DRs as well as to those groups on ceasefire” (para. 4.52).
The Panel takes a simplistic and erroneous view of the nature of the conflict in the north, which undoubtedly affects the form and content of its recommendations on disbanding paramilitary groups. It deletes the political dimension as a factor shaping ‘the Troubles’ and instead sees the conflict mainly in sectarian terms, as characterized by “regular retaliatory cycles of sectarian attacks” (para. 2.4). It notes how things have changed today: the majority of attacks by paramilitary groups are no longer sectarian but directed “against members of their own community” (para. 2.4). In the Panel’s view, paramilitary attacks themselves (however variable their targets) define the situation, and paramilitarism is without structured political purpose.
The Panel similarly excises politics from its recommendations, which heavily favour cultural-legal rather than political interventions. Those recommendations are in fact embedded in a cultural discourse of criminalization. One of the objectives of the Panel is to introduce measures “changing how paramilitary activity is viewed and described” (para. 4.43). It is imperative that society “stop treating the remaining groups as paramilitary organisations and, instead, treat them as organised crime gangs” (para. 1.6). The Report further notes that “tackling organised criminal activity” should also be “an integral part of . . . efforts to deal with Northern Ireland related terrorism” (para. 4.52).
For the Panel, virtually all paramilitary activity is reduced to criminal activity, pure and simple. As the 1970s criminalization scheme overseen by Roy Mason assumed and as Margaret Thatcher said during the hunger strikes: a crime is a crime is a crime.
The Panel’s first set of recommendations, concerned with developing a “culture of lawfulness,” is essentially a series of steps that need to be taken to encourage people to become touts. The Panel explicitly recognizes the “need for a cultural change in our society with regard to the fear and stigma associated with being labelled a ‘tout’” (para. 3.27). Part of this exercise, it seems, is changing labels by using synonyms for the word ‘tout’. Indeed, the Panel is at its most creative in developing euphemisms for touting, which is variously described as building “a new culture of reporting information,” or establishing “lawfulness” as “a value that is supported throughout society,” or promoting “active citizenship,” or laying the foundations for “responsible cooperation with the authorities” (paras. 4.5, 4.7, and 4.8).
The Panel’s emphasis on culture in its recommendations—on changing people’s values in a direction that is more police-friendly—is consistent with its almost comical reluctance to criticize the current administration in London and Stormont. Its analysis of the lack of confidence in the rule of law, for instance, is concerned less with how the criminal justice system actually operates than it is with community misperceptions, false impressions, and unreasonable expectations of that system (paras. 3.21-3.25). There is nothing here about the continued operation of a form of internment that undermines basic civil rights and fundamental legal principles, or about the duplicitous and brutal regime in Maghaberry, or about the continued stonewalling of legacy cases. For the Panel, the main task seems to be convincing the community, in a cultural sort of way, that appearances can be deceiving, that the criminal justice system is not really as bad as it appears to be.
The Panel’s legal recommendations flow from its overall get-tough-on-crime approach to paramilitary groups. It advocates tightening bail conditions, “securing more convictions,” delivering “effective sentences,” and generally using more punitive judicial instruments (paras. 4.17-4.18, 4.20-4.22). It also wants quick justice: a legal system that will deliver reliable outcomes in the most efficient and expeditious manner possible (paras. 4.18-4.19). These proposals are rash and foolhardy: the very same legal values the Panel is championing led to some of the worst abuses of justice in the history of the northern conflict.
The Panel’s discussion of prisons is also part of its criminalization agenda. The Report recommends that the Department of Justice revisit prison structures, with “the ultimate aim . . . to secure the end of a separated regime for paramilitary prisoners” (para. 4.35; see also paras. 4.33 and 3.30). It notes, however, that “the time is not yet right for an end to separation” (para. 4.35). Presumably, implementation of change in prison must await what the Panel hopes will be the success of its cultural and touting initiatives: it does not want a repeat of the widespread disturbances that followed the introduction of criminalization measures in the mid-1970s. Any civil unrest accompanying termination of the separated regime will be minimized to the extent that communities can be convinced, in the spirit of the Report, that members of paramilitary organizations are nothing but criminal gangsters who should be reported to the police.
The Panel’s approach, as it applies to “Dissident Republicans,” will simply not work. Many nationalists and republicans will see the Report for what it is: the resurrection of failed and discredited measures that corrupted politics and further perverted the system of justice.
A major failing of the Panel, tied directly to its ill-advised criminalization focus, is to give little or no credence to the political character of “Dissident Republicanism.” There are sound political reasons for seeing the Good Friday Agreement as a significant defeat of Provisional republicanism and for rejecting the sham notion that the Agreement is transitional to a united Ireland. Even acknowledging that this kind of political understanding is possible and could be an important factor motivating dissent seems almost completely beyond the capacity of the Panel. The Report’s cryptic reference to encouraging “initiatives to persuade groups not on ceasefire to end their armed campaigns” appears half-hearted and disingenuous given its observation that such groups “are unlikely to be easily persuaded to take a different course and will need to continue to be pursued through law enforcement measures” (paras. 4.52 and 3.5).
As a consequence of its apolitical, even anti-political, reading of “Dissident Republicanism,” the Panel is just not aware of the number of people who understand or sympathize with the dissidents’ political objectives if not their methods. Many republicans, even those who disagree with the continuation of armed struggle, will politically resist attempts to criminalize the struggle, de-politicize dissent and normalize touting.
 The Panel’s overall approach does of course parallel that of the Fresh Start Agreement itself. The Agreement is available online at https://www.gov.uk/government/news/a-fresh-start-for-northern-ireland; the Panel Report at https://www.northernireland.gov.uk/publications/fresh-start-panel-report-disbandment-paramilitary-groups-northern-ireland.
 In addition to the Panel, the Fresh Start Agreement provides for a Joint Agency Task Force to tackle paramilitarism and criminality, and for what came to be called the Independent Reporting Commission to “report annually on progress towards ending continuing paramilitary activity” (sec. A, paras. 3.2 and 5.1).
 Surely, in the wake of the Loughinisland Report, it’s well beyond time to jettison the mainstream use of the term “terrorism” that utterly ignores or minimizes the British state’s myriad terrorist activities.
 Merlyn Rees was Secretary of State at the time Special Category Status was rescinded in March 1976, but Mason was in the office when, in September, Kieran Nugent began the blanket protest against criminalization.
 The Panel displays a similar lack of critical outlook in its discussion of the Fresh Start Agreement. It is fulsome in its praise of that Agreement but fails to recognize that the austerity programme at the heart of the Agreement will frustrate the social initiatives the Panel calls for, such as improving educational opportunities and employment prospects for youth (para. 4.54).
 In para. 3.5, the Panel states that “militant ‘Dissident Republicans’” may be partly motivated by political objectives; but that statement is not at all explained, nor does it play any role in the Panel’s overarching criminalization frame or in its recommendations for disbanding paramilitary groups.