POLICING IN A NEW STATE
Brendan O’Leary set out a template for a united Ireland in his Treatise and for the citizens’ assembly participatory forum he carried out with John Garry in Belfast in 2019. He envisaged, theoretically, its constitutional and political structures, legal and policing requirements, health, education and other public services and the integration of the two administrations.
What it could not do was forecast the challenges and obstacles posed by those with the responsibility of making the integration process work, or identify the less visible opponents of change who exercise power in the various institutions of government, North and South. Among the more contentious issues confronting those tasked with designing the future united Ireland is how to ensure public support for the forces of law and order in the new dispensation.
Former PSNI officer, and now retired businessman, Sam Thompson said that there were many in the Protestant and unionist community watching the sun setting on the North as it celebrated its centenary. It may not be a completely flawless sunset, however. Thompson insisted that most unionists will accept the outcome of a vote for Irish unity but that there will likely be some violence from their community if certain, sensitive issues are not resolved in advance of the referendums. There are many licensed and legally-held weapons in unionist homes and, the PSNI has estimated, a considerable number of illegal firearms and other munitions under the control of loyalist groups across the North.
Thompson is based in Bangor, County Down, part of what is often referred to as the gold coast of the North because of its relatively wealthy population. He said at interview with this author that the prospect of unity is dawning on many within his community:
I think the majority of unionists and loyalists would probably accept that the game is up and that it is time to sit down and get the best deal you can. When push comes to shove, I think there would be some violent opposition and the question is how much?
Much depends, he noted, on whether the so-called legacy issues are resolved between the two governments in advance of the border poll, particularly in relation to the potential prosecution of former members of the security forces for conflict-related deaths and other offences:
If the whole thing is about revenge and humiliating unionists and prosecuting former UDR men and RUC men, it’s not going to be accepted. All these issues of the past need to be resolved once and for all and just can’t be carried over. The Irish government is going to need to be involved in that and agree not to change what is finally hammered out with the British.
The policing of loyalist and unionist areas will be a sensitive issue during discussions for a united Ireland, Thompson predicted:
Even if it wasn’t organised, you could have rioting and stuff like that. This brings us on to the whole policing thing. I can’t see how the Garda could start policing areas like east Belfast and the Shankill Road [in west Belfast]. It would be very easy in places like south Armagh and southern Fermanagh.
There might also be small, organised groups who will attack the new policing service, including its members from the South, he suggested:
In unionist communities, there would probably need to be some sort of continuation of the PSNI. It might be called some other name, in which you have a proportion of gardaí. Certainly, in unionist areas you couldn’t draft in a southern police force and expect them to take over. People up here got used to a lot of police casualties during the Troubles, but I really don’t know how people in the Republic would react to two or three guards getting killed every month.
Deploying the Irish Defence Forces in parts of the North could lead to a reverse of what happened soon after the British army arrived on the nationalist streets of Belfast and Derry:
You’ve seen what happened with the British army if you put soldiers in situations they don’t really understand. When they’re getting a lot of heat and abuse from the locals, all it needs is a few of them to react badly. To a lot of loyalist people that would seem as alien to them as the British variety would be to nationalists. There are people, for example in the Shankill Road who have never crossed the border and have no intention of doing so. I don’t think people in the Republic really quite understand that. I think some of them would be amazed that there are areas like parts of north Down and east Antrim where Catholics comprise less than 10 per cent of the population. East Belfast would be similar.
The dissident republican threat is likely to disappear but loyalist resistance to a new constitutional order can be expected to fester and sensitive policing will be required. Before partition, the island was policed by the Royal Irish Constabulary (RIC), which had widespread community support until the first decade of the twentieth century, which saw the rise of militant republicanism and the War of Independence. As Thompson recounted:
The whole thing about policing in Ireland is that the police are seen to represent a status quo which people don’t like. I remember talking to my grandfather many years ago. He grew up in the early part of the twentieth century and all the police on the Shankill Road were from places like Tipperary. Having a lot of people from Cork and Tipperary and other parts of the South policing unionist areas isn’t anything new.
The difference then of course was that the unionists on the Shankill Road didn’t object to the existence of the RIC. I think there will need to be an overlap or some sort of mixture of guards from different areas. In the likes of south Armagh, you could have almost 100 per cent garda whereas around the Shankill that might drop down to around 10 per cent. There have always been Catholic police officers in those areas, but they’ve mostly been from Northern Ireland.
Brexit has revived the constitutional question after decades of stability for unionism since the Good Friday Agreement. Thompson said further compromise, indeed co-existence in a unitary state, is possible for the majority of unionists as long as their identity is recognised and they are not discriminated against:
Brexit sort of woke it up again. Irish unity can be done if unionists can be reasonably comfortable and lead their lives in Northern Ireland where they don’t feel in any way that their identity is second class. It may not necessarily be the most desirable, but a tolerable state of affairs. That’s what you need to get for unionists. They might realise, ‘I’m not living in the United Kingdom any more but at least I’m not going to be discriminated against.’ I think that’s the most important thing.
Since leaving the PSNI in 2008, Thompson has worked with Invest NI, the state agency that encourages foreign investment into the North. During the course of his work, he has identified the shifting trends within his own community, as well as the growth of the all-island economy and its benefits for businesspeople in the North. He suggested that a referendum should be held in the latter part of this decade and that the process of unification could happen between 2030 and 2035. The 2021 census, he said, will be a further catalyst for movement and will concentrate minds for people in the unionist population on the possibility of a united Ireland, sooner rather than later. He said:
You now have a de facto border in the Irish Sea, and that has made the penny drop for some unionists who feel they are going to be abandoned. The unionist people always maintain that they don’t trust the British government and yet keep on going back and trusting them. How many times do they have to keep going through this process before they realise that the interests of Northern Ireland aren’t the interests of the south of England?
Business and farming people, from his experience of six years working for Invest NI, will ultimately decide what is in their best financial and economic interest and that of their children when it comes to living under new constitutional arrangements. For unity to happen, he argued, it is up to an Irish government to sell it, something that has never been done:
de Valera said, ‘You’re going to join us,’ and that was it. He never asked what would the unionist and people with British identity want? He could play it well politically, and the same with Charles Haughey and others. They promised they were going to be the people to bring unity about, but in practice it suited them politically not to have Northern Ireland. Fianna Fáil formed 9 out of 10 governments until recent decades and they wouldn’t have been able to do that in a single Irish state. It is a new ball game when all these Northern votes come in and what way they’re going to break.
One of the more powerful symbols of unionism over the decades is the massive parliament building at Stormont, with the statue of Lord Edward Carson – a unionist, born in Dublin, who opposed the partition of his country – dominating its long avenue. Thompson said:
Sure, why does the Dáil always have to sit in Dublin? Why couldn’t they bring it on the road or move a second chamber up to Stormont or something? It will probably horrify some people but why not? You’ve got a building there and you might as well put it to some good use.
The risk of loyalist resentment fuelling their return to the violence of the past is a matter with which Dr Dermot Walsh, a former professor of law at the universities of Kent and Limerick and a leading expert in policing and criminal justice, has been familiar for many years. Born in Whitehead, close to Carrickfergus in east Antrim, Walsh grew up as a Catholic and nationalist in a small Protestant and loyalist town, starting secondary school just as the Troubles broke out in 1969. At interview with this author, Walsh recalled:
I went to a Catholic grammar school in Belfast [St Malachy’s], which meant getting the train at 11 years of age and then walking through the volatile interface between the loyalist Tiger’s Bay and the republican New Lodge Road area every day. Coping with burning barricades, riots, bomb explosions, the sound of gun shots and being the target of attack was a regular occurrence.
On the train, we were heavily outnumbered by pupils going to ‘Protestant’ grammar schools, most notably the Belfast Royal Academy. There was very little interaction between us. They portrayed an innate, almost instinctive, righteousness and superiority, which tended to reinforce our experience of being second-class citizens. Unlike them, we were conscious of the risks of openly expressing our sense of identity or how we felt about politics and conflict. We were expected to be submissive, even invisible.
The Troubles did not impact dramatically on life in Whitehead. Yes, some of the few Catholic business premises were bombed, and there were a few Troubles-related murders. On the whole, however, there was no constant or widespread violence against Catholics in Whitehead. Presumably, that was because it was a 90 per cent Protestant and loyalist town of about 2,000 people. There wasn’t a big enough Catholic or Irish nationalist minority for us to be seen as a threat, and in fact, many of the Catholics in Whitehead would have been pro-British and acceptably submissive to the majority narrative anyway.
But there was a small number of us who identified as being Irish and Catholic, and we did not always display the submissiveness expected of us. That marked us out as targets for attack from time to time, but it never really took the form of anything more serious than street-fighting among youths.
Walsh graduated with a law degree from Queen’s and was called to the Bar of Northern Ireland in the early 1980s. At the same time, however, he was diverted into academia and research on the operation of the emergency legislation in Northern Ireland and, in particular, human rights abuses perpetrated by the RUC and British Army. He then took up a lectureship in law at University College Cork, where he taught for 10 years. He returned to the North with his family in the early 1990s to take up a senior lectureship in the University of Ulster at Jordanstown. A disturbing incident occurred at their home in Whitehead, where they were living at the time:
One Saturday night, I was at home with my wife and my brother having a few drinks and she noticed through the blinds a car behaving suspiciously in the immediate vicinity just after midnight. As she watched, the car came back around again, and a hooded man got out and headed in the direction of our bungalow. As he came into our driveway heading for the front door, he put his hand inside his jacket. She panicked and moved the blinds as she felt we were about to be attacked. Realising that he had been seen, the man turned abruptly, and went back down the road where the car came along, picked him up and drove off at speed down the avenue.
The incident coincided with Walsh being offered a chair in law at the University of Limerick. Much to the relief of his wife, who is from Cork, he accepted the position and in 1996 they moved South where he continued to teach and write on policing and criminal justice. His research on Bloody Sunday, published on the 25th anniversary of the massacre, helped to pave the way for the establishment of the second tribunal of inquiry, which went on to exonerate the victims of that day.
In 1998, Walsh published a ground-breaking study on the legal and constitutional status of the Irish police. This was followed by a major text on human rights and policing in Ireland. Both were in-depth, detailed examinations of all aspects of policing in the Republic, critically assessing how or to what extent they did or did not live up to basic human rights standards. He was one of the few independent media commentators raising the issue of police abuse, malpractice and indiscipline in the years before the scale of criminality within the Gardaí was exposed at the Morris tribunal of inquiry into police wrongdoing in Donegal in the early 2000s.
During our discussion in the summer of 2020, Walsh said that:
a united Ireland would not necessarily entail the whole island being policed by the Garda Síochána or some other form of Dublin-based force. In fact, it would open up an attractive opportunity for bringing policing closer to the communities they serve across all 32 counties.
An important distinction can be drawn between what some academics refer to as ‘high policing’ and ‘low policing’. The former encompasses political policing, anti-terrorist policing, organised crime policing of major criminal networks and gangs and so on. It relies heavily on the gathering and analysis of intelligence and the cultivation of informers. It extends beyond criminal activities to reach perceived threats to the established political and economic orders. If not rendered subject to effective oversight, ‘high policing’ will present a potent threat to transparency, human rights, accountability and democratic legitimacy in policing.
‘Low policing’ by comparison refers largely to community-based policing; the policing that most of us engage with on a daily basis. Its primary focus is on crimes against the person and property, public order, anti-social behaviour, emergencies and threats to personal and community safety. It is identified with policing by consent. Done well, it makes a vital contribution to a peaceful and orderly society in which the needs and rights of all are served on the basis of equality and respect.
Critically, the delivery of ‘high’ and ‘low’ policing does not have to be squeezed into a single organisational straitjacket. Indeed, there are very sound reasons for keeping them separate. In Ireland, unlike most other democratic jurisdictions, however, we have made the cardinal error of combining both within the same, ‘civil’ police organisation. The Garda, for example, has always provided the domestic state security service, as well as the civil policing service. For most of its existence, the old RUC effectively combined both as well. To my mind, this is seriously damaging to transparency, democratic legitimacy, accountability and policing by consent. Under the mantle of the familiar everyday police service, lurks the ‘eyes and ears’ of a self-interested political establishment keeping the law-abiding community under constant surveillance.
There is no justification for this peculiar approach to the delivery of policing. While there will always be a degree of overlap between them, community civil policing and state security policing can and should be delivered through distinctly separate organisations. The former lends itself to local community-based policing services, while the latter is appropriate to a single centralised national police and security service. Adopting that sensible division in Ireland would be a positive advance on current policing structures, North and South. It would also make a positive contribution to a harmonious united Ireland in that it would avoid the frictions that could otherwise be generated in loyalist parts of the North if local policing was seen to be delivered by a national police force controlled from Dublin.
In practical terms, what this would entail on the ground is the establishment of distinct civil policing services in each of the main cities across the island; and the same for individual counties or combinations of counties. These police bodies would be rooted in their communities and would provide the broad range of civil policing services to meet the needs of those communities and the state as a whole. In addition, there would be a single national police organisation with the lead responsibility for dealing with counter-terrorism, major organised crime gangs, systemic threats to the stability of the state and international police co-operation.
The concept of locally based police forces along these lines has always been a core feature of police organisation in England, the US and many other comparable jurisdictions. It was also a familiar feature of Irish policing before partition. Local police forces proliferated since the early nineteenth century and several cities had their own police forces separate from the RIC.
Sensible adaptation of the concept today could enhance police-community identity and relations across the island as a whole. Critically, it could also help ease fears in those loyalist communities where political resistance to a united Ireland runs deep. They would get reassurance from having their everyday policing needs met by a police service that they can identify with. In some of these communities, that would even be an advance on their current situation. In other words, policing doesn’t have to be an obstacle to developing a united Ireland.
Walsh suggested that the recent and growing friction and tension between the PSNI and loyalist working class is, to some extent, a consequence of the Patten reforms on policing that emerged from the GFA. Former government minister, and the last British governor of Hong Kong, Chris Patten proposed a root and branch reform of the RUC, which resulted in the departure of many officers, including some who had an unhealthily close relationship with, or sympathy for, illegal loyalist organisations. The recruitment of more Catholics and the political decision by SF to endorse the new policing service has weakened the bonds between the loyalist and unionist community and ‘their’ police force.
The Protestant community ‘of all shades and classes’, Walsh said, had identified the RUC and the B Specials as their police force:
Not only was it drawn almost exclusively from them, but it was seen as their first line of armed defence against the perceived threat to their hegemony from the Irish/Catholic minority within and from the Irish state on the other side of the border. There was no scope for conflict or tension between any section of the Protestant community and their police.
Walsh is also conscious of the long history of penetration and control exercised by sinister forces:
Having been born and grown up in the heart of loyalist Ulster, I have long been familiar with the manner and extent to which the unionist hostility to the Irish nationalist community penetrated to the core of policing. Despite Patten and the peace agreement, I am not confident that that has been eradicated. There continue to be examples of operational decision-making that, at least on the surface, evoke reminders of a unionist police force hostile to the needs and rights of the Irish nationalist community.
He cited as an example the investigation by the PSNI and Durham police into filmmakers Trevor Birney and Barry McCaffrey. In 2017, the two journalists made the acclaimed documentary No Stone Unturned, which looked into the UVF attack on a bar in Loughinisland, County Down during the soccer World Cup in 1994, in which six Catholics were shot and killed. The documentary exposed the key role played by a UVF member and RUC police informant in the killings and the disappearance of key evidence following the attack.
Instead of being seen to go after those identified as responsible for the attack, in 2019 the PSNI arrested Birney and McCaffrey and seized documents and other material from their homes and office over allegations that a Police Ombudsman document had been stolen. The two journalists won a High Court action against the PSNI, challenging the actions in enforcing a warrant to seize material, and were awarded £875,000 (€966,000) in damages.
Walsh observed how, during the dirty war with armed republicans, the dark hand of British security was believed to have co-operated with elements within loyalist organisations in the killing of many nationalists, including prominent solicitors Pat Finucane and Rosemary Nelson. During our discussion, he said that the single biggest change during his lifetime has been the manner in which the confidence of the Catholic and nationalist community has grown, not only in west Belfast but in loyalist-dominated parts of the North:
The one thing that has changed fundamentally here in my lifetime is the confidence of the Irish community. They have taken responsibility and leadership and are much more assertive about their identity and place. They have thrown off the second-class citizenship to which they were consigned following partition. Even in parts of Ballymena, a traditional loyalist heartland, the open expression of Irish identity is not uncommon. When I was a teenager that was unthinkable. It would have been very quickly and aggressively suppressed.
The growing confidence of the nationalist community is reflected in his own profession, with the number of young lawyers in Belfast exceeding those from a traditional unionist background:
People like Pat Finucane blazed the trail by being seen to take a prominent stand in using the law to challenge the abuses of the political and security establishments; even to the point where it cost him his life. He inspired many others to become lawyers, motivated primarily by the desire to make a difference for victims of oppression and discrimination.
Walsh has also noted the trend for solicitors and barristers from Belfast taking cases on behalf of clients challenging injustice through the courts in Dublin and across the South. While this can be seen as a positive contribution towards the development of an all-island legal profession, the competition has not always been welcomed in the profession south of the border. It also flags up an important difference between the two jurisdictions that could prove as challenging as policing for the transition to a united Ireland. That difference is the Constitution. Unlike the North, the South has a written Constitution. It has a fundamental impact on law-making, legal principle and the administration of justice. How should that be developed? As Walsh asked during our interview:
Do you extend it to the North? Do you modify it? Do you develop it? Or do you try and operate two systems? There is now a strong familiarity with, and attachment to, the 1937 Constitution, not just among lawyers but also among society generally in the South. The Constitution has already undergone some radical amendments quite smoothly in recent years to meet the perceived needs of the polity there. People and legal practitioners in the South will have to be persuaded that it needs further change, not just to meet the rapidly changing environment of the 21st century, but also to accommodate the needs of unification. It must also be borne in mind that engaging with a written Constitution, including its entrenched Bill of Rights, will be a new experience and challenge for most lawyers in the North.
Developing the 1937 Constitution to cope with the demands of unification would also present an interesting challenge for the judicial systems and judges North and South of the border. It helps that both stem from a common legal tradition and many of the judges engage regularly with each other and have deep mutual professional respect. It does not follow, however, that they will be on the same page on how the challenges of unification could and should be met. As with policing, there are diverse options, ranging from the maintenance of two co-operative systems through to complete integration. Even more than policing, however, the shape of any appropriate solution will depend heavily on other key aspects of unification arrangements.
While the legal profession has attracted a new generation of solicitors and barristers from the nationalist community, the judiciary in the North has also undergone a major transformation over the past two decades.
Siobhan Keegan, the first female chief justice in the history of the North was appointed in 2020. Both she and her predecessor, Declan Morgan, had a Catholic and nationalist upbringing, and both have played key roles in developing more effective and independent judicial investigations into legacy cases from the conflict through the Coroners’ Courts. Justice Keegan was the coroner in the inquest of 10 of the people killed during a sustained attack by the British Army Parachute Regiment in August 1971 on the people of Ballymurphy, west Belfast. In May 2021, 50 years after the massacre, Keegan delivered her devastating findings to the survivors and relatives of the victims at the International Convention Centre in Belfast.
Those killed were unarmed and ‘were entirely innocent of any wrongdoings on the day in question,’ the judge said to loud applause; 9 of the 10 shootings were attributed to the Parachute Regiment and the use of lethal force by soldiers was not justified. ‘They were all innocent people. This was a tragedy for all the families,’ said Keegan, as reported in the Irish News in May 2021. ‘The army had a duty to protect lives and minimise harm, and the use of force was clearly disproportionate.’ She said there was no evidence to suggest any of the deceased were linked to the IRA.
During his final months as Lord Chief Justice for the North, Declan Morgan led the hostile reaction to the decision by the British government to introduce legislation under the UK Internal Market Bill that would breach the Withdrawal Agreement agreed with the EU in late 2019. Northern Ireland Secretary Brandon Lewis first raised the prospect in September 2020 when he spoke about his government planning to break international law in a ‘very specific and limited way’. (UK Parliament TV, 8 September, 2020)
The UK Internal Market Bill provided ministers with the power to decide unilaterally how the NI protocol would be implemented once the Brexit transition period was completed at the end of the year. The move revived tensions with the Irish government and the EU over the Irish border and prompted a warning by President of the European Commission Ursula von der Leyen about the importance of Britain sticking to the legally binding treaty as it had agreed. ‘Pacta sunt servanda,’ (agreements must be kept), von der Leyen was quoted by Reuters as having said, in relation to a fundamental principle of international law.
Morgan, as well as former Conservative Party prime ministers, John Major and Theresa May, condemned any action that could ‘undermine trust in the system of the administration of justice’, as reported in Irish Legal News in September 2020. More ominously for Boris Johnson and his colleagues, US Speaker of the House Nancy Pelosi added her voice when she warned, ‘If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US–UK trade agreement passing the Congress. The Good Friday Agreement is treasured by the American people and will be proudly defended in the United States Congress.’
With a US presidential election due in less than two months, Pelosi’s intervention signalled that there would be a radical departure in policy towards the UK if Donald Trump was replaced by the Democratic Party candidate, Joe Biden. The Internal Market Bill also rang alarm bells in the devolved administrations in Scotland and Wales due to the renewed powers it transferred to government ministers to make strategic decisions concerning the UK as a whole. Under the devolution settlement, these unilateral decisions were disallowed and the latest proposals were described as a Tory power grab by the SNP and by former Labour leader Ed Miliband, among others, in Westminster.
Following a late-night phone call with Johnson, Taoiseach Michéal Martin told RTÉ’s Morning Ireland that ‘trust has been eroded but he [Johnson] made it clear to me that the UK was fully committed to meeting the obligations of protecting the single market and fluidity of trade North and South.’ But Martin’s faith in Johnson’s commitment was clearly undermined by the British prime minister’s plans to override parts of the Withdrawal Agreement. Martin went on to say that:
The stakes are higher now because of the British action. The publication of the bill signals an attempt by the UK government to essentially break its commitment entered into [in] an international agreement and that is very serious. It’s very worrying news for everybody and in my view makes no sense and I’ve consistently said this to the British Prime Minister. I think the European Union leadership will be very concerned in how negotiations go from here.