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.[1]
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.[2]
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).[3]
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.[4]
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).[5] 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.[6] 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.
[1] 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.
[2] 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).
[3] 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.
[4] 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.
[5] 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).
[6] 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.
No comments