THE BRITISH STATE AND THE RULE OF LAW DURING THE TROUBLES IN NORTHERN IRELAND Ph.D Susan Garnett 2018 Acknowledgements Lots of people helped me with this work, both with advice on the draft thesis and with general support and encouragement. I would like to mention specifically the help given by the following, and record my thanks: Dr. Marco Odello and Professor Ryszard Piotrowicz my supervisors; David Steeds retired now but formerly of the University College of Wales, Aberystwyth; Dr. Thomas Smith and Marcus Keppel-Palmer of the University of the West of England; Professor Jack Spence of King’s College London; Daniel Holder of the Committee for the Administration of Justice; Dr. Keren Darmon of the London School of Economics. The views expressed here are, however, entirely my own; all responsibility for their faults and their merits lies with me. Finally, I dedicate the thesis to my mother and father, Margaret and John Garnett. 6 April 2018 Susan Garnett ii SUMMARY SHEET Candidate’s Surname/Family Name Garnett Candidate’s Forenames (in full) Susan Ann Candidate for the Degree of Academic year the work submitted for 2018 examination Summary: THE BRITISH STATE AND THE RULE OF LAW DURING THE TROUBLES IN NORTHERN IRELAND The British State stands accused, in some quarters, of creating the apparatus of impunity during the most recent Troubles in Northern Ireland. This thesis attempts to assess the extent to which the British State and State operators were constrained by the rule of law in relation to constitutional law, military law, criminal law and international law. The thesis looks at the role of Parliament, the domestic courts, the European Court of Human Rights and the role of lawyers in shaping the law during the conflict and their combined ability to hold the British government to account. The thesis also examines whether successive British governments undermined the constitutional role of the British Army, and whether the ordinary criminal law was able to effectively deal with British soldiers using lethal force in suspicious circumstances. Additionally, the thesis looks at both the policies that were introduced by the British government and the military contingency plans that were developed at the time but never implemented, and attempts to make some assessment as to whether or not these policies and plans tended to respect the rule of law or undermine it. There is also some attempt to draw some conclusions about the attitude of government ministers, senior British Army officers and civil servants towards the rule of law from the policies themselves and what was said at the time. iii Table of Contents Introduction 1 Definitions 6 Rule of Law 6 Martial Law 12 Terrorism 15 Civil War 20 Rebellion 20 Insurgency 20 Belligerency 21 Chapter 1: A Brief Overview of The Troubles 28 The Statistics 29 The Historical Context 31 Explanations of The Troubles 35 Chapter 2: Theories of Emergencies in Democratic States 49 The Evolution of the Concept of a State of Emergency 53 Elements of an Emergency 56 Theories of Emergency 58 The Legality Model 63 The Extra-Legal Measures Model 64 The Neo-Roman Model 65 The Role of Stormont during The Troubles 66 The Emergency Legislation 68 Chapter 3: The Constitutional Position of the British Army in Northern Ireland during The Troubles 81 The Constitutional Position of the British Army during the Falls Road Curfew 95 The Rising Levels of Violence in the Days Prior to the Curfew 95 The Curfew 97 The Results of the Curfew 100 The Legality of the Curfew 103 The Legality of the House-to-House Searches during the Curfew 105 Chapter 4: The Use of Force by British Soldiers and the Operation of the Ordinary Criminal Law during The Troubles 112 The Statistics 114 Fatal Shootings by the RUC 115 Fatal Shootings by the British Army 116 Conviction Rates for Members of the RUC and the British Army 117 The Investigation Process 137 The Prosecution Process 139 The Role of the Coroners Courts 143 The Use of Civil Actions for Damages 144 Chapter 5: The Legal Basis of Covert Operations in Northern Ireland during The Troubles 147 Recruitment of Informants 153 Handling of Informants 155 Undercover Military and Police Units 158 Allegations of Collusion 160 The Walker Report 164 Informants and ECHR Obligations 172 iv Chapter 6: Contingency Planning during The Troubles: The Tuzo Plan and Operation Folklore 176 The Tuzo Plan 177 Operation Folklore 183 The Military Measures 186 The Civil Measures 188 Contingency Planning and ECHR Obligations 194 Chapter 7: Internment and the use of in-depth interrogation and how the British dealt with allegations of abuse relating to these two policies 197 The Introduction of Internment 198 The British Government Response to the Public Outcry at Internment 208 The Use of Public Enquiries 214 Chapter 8: The Framing of the Conflict within International Law and the Role of the House of Lords and the European Court of Human Rights 220 International Law and Northern Ireland 220 Human Rights and International Humanitarian Law 221 The Role of the European Court of Human Rights in Relation to the Policies of Internment and In-depth Interrogation during The Troubles 229 The Role of Domestic Courts in Relation to the Policies of Internment and In-depth Interrogation 236 The Role of Lawyers in the Conflict 239 Conflict Legacy Cases 246 Conclusions 252 Bibliography 270 v Introduction 1.1. David French examined British counter-insurgency policy between 1945 and 1967 and concluded that although ‘the British conducted their counter-insurgency operations according to the rule of law’1 the legal framework within which they operated gave the British ‘such sweeping powers that short of genocide, they could do almost as they pleased’.2 While David French made these comments in relation to British counter-insurgency operations in various parts of the British Empire, this thesis will examine the extent to which the same could be said of Operation Banner in Northern Ireland. In order to do this the role of Parliament, the courts, and the lawyers will be examined and an assessment made as to the extent to which they constrained the activities of successive British governments and other State actors. In addition, an assessment will be made about the commitment of successive British governments, the civil service and the Security Forces, to promoting the rule of law during the Troubles.3 1.2. There are various well-understood devices and mechanisms that governments in democratic States use to limit the reach of law and shield themselves from criticism. These devices and mechanisms include exploiting failings in the legislative framework, using mechanisms that restrict Parliamentary oversight, using discretionary powers to shield members of the Security Forces 4 from prosecution and exploiting any jurisdictional uncertainties that exist in order to frustrate legal challenges. 1 David French, The British Way in Counter-Insurgency, 1945-1967 (Oxford University Press 2011) 29. The emergencies examined by David French occurred in various corners of the British Empire in territories that were not governed democratically. As a consequence, the term the rule of law will inevitably be defined narrowly compared to how the term the rule of law might be used in relation to parts of the United Kingdom in the 1970s and 1980s. See later in this chapter at para 1.17 - 1.38 for a further discussion of the definitions of the rule of law. 2 ibid 103. 3 The ‘Troubles’ is a euphemism used to refer to the most recent period of civil and political unrest in Northern Ireland beginning in the late 1960s. 4 The Security Forces here include members of the Royal Ulster Constabulary and the British Army, including the Ulster Defence Regiment. The role of the Security Service and the Secret Intelligence Service is not considered in this thesis since the British government did not acknowledge their existence for much of the Troubles. The Security Service was recognised in law in 1989 and the Secret Intelligence Service was recognised in law in l994. 1.3. Examples of these devices and mechanisms would include an over reliance of public inquiries which, some have argued, divert focus away from the justice system and thereby avoid those responsible for abuses being held to account. Another example would be a heavy reliance on covert operations. Covert operations are by their very nature secret, making suspected illegality by covert operatives difficult to prove in court. This is not to suggest that this is the only reason States rely on covert operations because that is clearly not the case. There are many circumstances where covert operations are the only effective method of gathering intelligence. However, an over-reliance on covert operations, in other words, using covert operatives in circumstances where uniformed officers could be deployed with equal effectiveness is a known device to limit the reach of law. Another example would be for governments to implement emergency and anti- terrorism legislation giving sweeping powers to the Security Forces but draft the legislation in such a way as to make those powers as ‘judge proof’ as possible. In other words, draft the legislation in vague terms making it difficult to pursue abuses through the courts. 1.4. In relation to international law there are equally well–understood mechanisms available to States that allow them to sidestep their treaty obligations. These include, exploiting legal uncertainties, for example by asserting the appropriateness of one legal standard over another. Another mechanism is to use derogations and reservations to allow behaviour by the State that would otherwise be illegal. Another example would be deliberately failing to co-operate with fact- finding attempts by international bodies in order to limit criticism.