The purpose of this book is to provide an introduction to the as yet unwritten history of internment in Ireland. But it should not be assumed that because the book deals only with Ireland that internment is a specifically Irish problem. Virtually every country in the world has repressive legislation on its statute books, and the jails of many lands are filled with prisoners who are not charged with any crime other than opposition to the regime in power and who are never likely to come to trial. Even while this book was being written, 14,000 men and boys were interned in Ceylon, and the Philippines and Zambia both introduced indefinite detention without charge or trial. In contrast, America at long last revoked the infamous McCarran Act. That Act was passed in 1950, and section 104 (a) provided that "in time of emergency the Attorney General or his representation is authorised to issue a warrant for the apprehension of each person as to whom there is reasonable ground to believe that such person will probably engage in, or probably will conspire with others to engage in, acts of espionage or sabotage." Why America felt that this piece of legislation was necessary is unclear unless it was part of the McCarthy hysteria of the period, since the US had already interned 110,000 Americans during World War Two, whose only 'crime' was that their parents or grandparents were Japanese.[1]
Nor is torture, brutality or plain old-fashioned 'ill-treatment' the sole prerogative of the British army. The record of the French in Algeria, the Russians in Hungary and Czechoslovakia, the Americans in Vietnam, Santo Domingo, and South America in general, to name only some of the major powers, cannot be said to be unblemished. Systemised torture is today carried on in many countries, from Spain to Greece, to Brazil to South Africa. The torturers at Palace barracks had no monopoly. The only thing different today is that torture of Irish prisoners, sanctioned by the British Cabinet, was carried out on a wide scale totally unheard of during the internment periods 1922-1924, 1938-1945, and 1956-1961, and that the mass media focused on it.
But this book is concerned in particular with the Northern Ireland Special Powers Acts of 1922, 1933 and 1943 as well as the Offences Against the State Act so beloved by governments in the Twenty-six Counties. When the State of Northern Ireland was forcibly set up, repressive legislation already existed. In the summer of 1920, Sir Hamar Greenwood, Chief Secretary for Ireland, had persuaded the Westminster parliament to pass the Restoration of Order in Ireland Act, which give the military and police virtually carte blanche powers to 'control' a situation which had got completely out of hand: four-fifths of the population had even been disloyal enough to vote against Ireland remaining a British colony. Ordinary laws were suspended and the military and police were permitted to intern on suspicion, impose curfews, hold secret courts-martial, enter, search and confiscate (i.e. loot) without warrant, suppress inquests sad gun down anyone 'acting suspiciously'.
But Sir James Craig (later Viscount Craigavon) and Sir Edward (later Lord) Carson did not relish military rule or martial law since either measure would have meant that control was vested in Westminster. "Sooner than consent to martial law I would much prefer to take the most drastic action under this Bill and enrol every citizen as a Special Constable to deal with the situation," Craig, first Prime Minister of Northern Ireland, said in 1922. Accordingly, the Special Powers Acts were introduced. There were nine sections in the original Bill and 30 regulations. Under these the Minister for Home Affairs could arrest without charge or warrant, intern without trial, prohibit the holding of coroners' inquests, flog, execute, use depositions of witnesses as 'evidence' without requiring them to be present for cross-examination or rebuttal, destroy buildings, requisition land or property, ban any organisation, be it political, social or trade; prohibit meetings, publications or even gramophone records. Worse still, it permitted the Minister for Home Affairs to make or alter any regulation he "thinks necessary for the maintenance of order" even without consulting the rubber stamp of Stormont. Moreover, such powers could be, and were, delegated (section 8) "to anyone he chooses" – such as the B-Specials.
Even some Unionists opposed the Bill. George Boyle Hanna (U. Antrim) did so on the grounds that it gave the civil authorities even more powers than the military would have under martial law. "There need not have been so many sections," he said. "One would have been sufficient: 'the Home Secretary shall have the power to do whatever he likes or let someone else do it for him.' That is the whole Bill." Small wonder that the late Dr. Verwoerd of South Africa often enviously remarked that he would scrap 811 his repressive legislation for just one regulation of the Special Powers Acts.
Among the extra draconian measures that made the Special Powers Acts more fearsome than martial law was the 'right' to flog. One Unionist MP was so pleased with this provision that he gloated "... and I may say that if an artist [sic] is employed in flogging these criminals there will not be much of them left to go to prison." This power is one of the few sections to have been repealed – in 1968! But as late as 1944 men like Frank Morris were brutally flogged in the Crumlin Road jail.
The Act, which received royal assent on 7 April 1922, was supposed to last only one year. Robert Lynn (U. West Belfast) admitted that it "would be an outrage to have an Act like this that might be resurrected by any policeman in the country." Next year, however, it was renewed. And the next. And the next. In 1928 it was renewed for five years "to save legislative bother,"[2] and in 1933 it was made permanent.[3] This outrage has been with us ever since. Indeed, in 1943, the penalties were even stiffened and less serious offences could be tried by a single magistrate on his own. As if the Special Powers Act were not enough, successive Unionist governments introduced legislation such as The Flags and Emblems Act, The Public Order (Amendment) Act (1970), and the Criminal Justice (Temporary Provisions) Act (1970).[4]
The Acts have always been used exclusively against 'disloyal elements', i.e., Catholics. Indeed, Nicholas Massergh[5] has asserted that a guarantee was given to the Orange Order that their members would be immune from prosecution under the Acts. The only exceptions to this were the handful of over-enthusiastic 'Loyalists' briefly interned in the 1922-1924 period and during the 1933 Outdoor Relief Riots when for a time it looked as if Catholic and Protestant working class would be united.[6] As long ago as 1936 the National Council for Civil Liberties declared that the Acts were outrageously repressive measures designed to maintain a corrupt oligarchy in power.
In the Twenty-six Counties legislation has been just as repressive. Article 28, Section 3 (3) of the Constitution of the Irish Republic gave power to the Oireachtas (Parliament) to make laws which were "expressed to be" for the purpose of securing public safety in time of war or armed rebellion "notwithstanding anything to the contrary" in that Constitution. This was amended by the first Amendment of the Constitution Act, 1939, in that the phrase "in time of war" was to be deemed to include an armed conflict to which the State was not a party but which both Houses of the Oireachtas resolved would "lead to a national emergency affecting the vital interests of the State."
Accordingly, the Emergency Powers Act (1939) became law on 3 September but it did not authorize the detention without trial of "natural-born Irish citizens", presumably because the State felt that this was already covered under Section 55 of the Offences Against the State Act which had been passed earlier in 1939. This, however, was challenged. Many Republicans had been interned already and it was decided to take a test case. In the case (Burke versus The State) it was held that the power of detention given to Ministers to intern was unconstitutional. The internees had to be released, and, in order to restore the power of the State, the Offences Against the State (Amendment) Act was rushed through both Houses of the Oireachtas in 1940. This restored to the State the power to intern on suspicion, without evidence, charge or trial, and it is a power which has not been relinquished.
The Offences Against the State Act is brought into effect by Government proclamation, thus effectively suspending rights supposedly guaranteed by the Constitution. Many of its provisions offend against the basic common law rule of nulla poena sine lege (no punishment without due process of law). For example, Section 7 (part two) carries a penalty of seven years jail for anyone who "obstructs the carrying on of Government". Remarkable vistas are conjured up by Section 9 (part two) which makes it a crime "to encourage any person in Government service to be negligent". Free speech and the right of publication are rigorously proscribed if the Government so wishes, using Sections 10 to 14. The basic precept of people being innocent until proven guilty is swept aside in Section 15, which baldly states "in any prosecution in this section the burden of proof that any act was authorized under this section shall lie with the person prosecuted". Section 19 goes even further and states that the charge itself implies a presumption of guilt.
Part three of the OASA empowers the Government to "ban any organization which in in its opinion is illegal." Any member of such an organization is liable to two years in jail and all the property of the organization can be confiscated under Sections 21 and 22. Section 18 has been utilized so frequently that many Republicans can quote it verbatim. It covers membership of, advocation of, or promotion of any illegal organization or of promoting any illegal activity. Section 26 (part four) allows hearsay evidence. Section 27 allows a garda superintendent to ban any meeting he believes might "encourage illegality". Section 29 violates the common law by permitting any garda to arrest without warrant.
The independence of the judiciary is made nonsense of by part five which permits the Government to set up special military courts and special criminal courts whose judges are appointed by the Government and who are removable at will – such as when they acquit people whom the Government want found guilty. In fact, until 1972 all members of the court were high-ranking military officers with very little legal training and no tradition of opposing the Government on a point of principle. Special criminal courts are supposedly necessary because of "intimidation of judges and juries". Yet, if a judge does not carry' out his function "without fear or favour" he is in breach of his oath of office and should be removed from the bench. Moreover, the last juror to be shot in the Twenty-six Counties was in 1931, over forty years ago, and there have been NO recorded cases of intimidation of witnesses or jurors since. There is no appeal against a verdict of a special court without that court's permission, and to challenge its right of jurisdiction is to be automatically guilty of contempt and liable to a prison sentence, in military custody if the court desires. Section 52 concludes by making it an offence not to answer questions put by the gardai. (The Offences Against the State Act was further amended in November 1972 to give even more power to the gardai and the courts. See Chapter 16).
As can be seen, these powers are just as comprehensive and repressive as the Special Powers Acts in the North. One would have imagined that the Fianna Fail Government would have been content with them. Not so. In 1971 they introduced the Forcible Entries Bill which gave the gardai even more powers to protect large property-holders from squatters and to curb the press. Truly, it can be said that absolute power corrupts absolutely. For 50 years Ireland, both North and South, has been governed under virtual martial law. The rights of the individual citizen have been constantly trampled under foot, in the sacred name of 'expediency' and 'emergency'. If the plethora of laws as detailed are necessary to preserve the State, then that State is not worth preserving. It is nonsense of the North to talk of "preserving the traditional British way of life" if its permanent laws flout every cardinal tenet of British law. The State cannot exist to ensure a better life for its citizens if it terrorizes them by maintaining corrupting and degrading laws. To do so is to emulate the American major in South Vietnam who said of the village of Ben Tre, "in order to save the village, we had to destroy it". The Special Powers Acts, and in particular internment without trial, have helped to destroy the Stormont parliament. It is not inconceivable that the Offences Against the State Act may do the same for the Dail.
| 1. | See America's Concentration Camps by Allan [sic] R. Bosworth, New York (W.W. Norton & Co. Inc.), 1967, for the full story of the abominable treatment of Japanese Americans. Paperback by Bantam, London, 1968. |
| 2. | In fact, by 1928 the Six Counties had been peaceful for several years, as even the authorities admitted when, on three occasions, they presented judges with white gloves, symbolic of the fact that there were no cases of crime before the courts. |
| 3. | This was done by deleting section 12 of the original Act and substituting the following: "The Act of 1922 shall continue in force until Parliament otherwise determines." Incredibly, the very tranquillity of the State was advanced as an argument for making the Act permanent. Thus did the Unionist regime admit the inherent instability of the artificially-created State. |
| 4. | The Flags and Emblems Act gives the police the power to seize any flag other than the Union Jack, such as the Tricolour, the seizure of which during the Westminster elections in 1964 led to the Divis Street riots and helped the rise to prominence of Rev. Ian Paisley. On one occasion it was even used to seize a Vietcong flag during a protest against the Vietnam war. The Public Order (Amendment) Act was passed in 1970, ostensibly to prevent counter-demonstrations such as the infamous Burntollet ambush of the People's Democracy marchers by B Specials. In fact, it was never used for this purpose. Instead it was used to diminish the means of peaceful protest, such as sit-downs, and peaceful occupations of public buildings by anti-Unionists, as well as spontaneous marches. The Criminal Justice (Temporary Provisions) Act of the same year imposed mandatory six-month sentences for such hitherto minor offences as shouting "Up the IRA", calling a British soldier "Joe Ninety", or painting "No tea here" on a wall. The Act was amended when it became clear that it was unworkable. |
| 5. | The Government of Ireland Act 1936. |
| 6. | In addition to its use during the 1933 riots, the Act was used against the working class on a number of occasions, as in 1925 when a march of the unemployed workers was banned on the very day that Stormont was officially opened. One example of its use that is not so well known occurred, on 12 October 1932, when a large body of armed police forced their way into houses in Quinn Street, Belfast, and compelled all the males, irrespective of age, to engage in forced labour, replacing paving stones ('Belfast confetti') which had been wed in battles between strikers and the police. In October 1933, shortly before the local elections, 50 men were arrested. No charges were laid against them, but after they had been detained for several days the Government passed regulation 22b (the ancestor of regulation 7) which made it an offence not to answer questions put to one by a Resident Magistrate in private. The 50 men were then charged – and convicted – of not answering questions previously put to them. So much for the common law principle that a person may refuse to incriminate himself. In 1933 Tom Mann, founder of the Socialist party in Britain, was arrested and detained under the Special Powers Act when he arrived to attend the funeral of a workman shot by the RUC, during a demonstration in West Belfast. He was informed that he must leave unless he was prepared to agree to stay within one mile of Clogher – some 70 miles from Belfast! Two years later Sean Murray, from Cushendall, was expelled from Northern Ireland, also under the Special Powers Act, for seven years, for "being a communist". It was only in 1952 that the Minister for Home Affairs successfully banned a coat-trailing Orange march along the Longstone Road near Kilkeel, County Down. The ban was defied by the Orange-men, one of whose leaders was none other than Brian Faulkner. It should be noted that the Apprentice Boys' marches were banned in 1971 and 1972 under the Special Powers Act rather than under the Public Order Act which would have resulted in mandatory six-month sentences on any Orange transgressor – if prosecuted. Britain, too, has its Emergency Powers Act 1920 (amended 1964). Britain has some safeguards against abuse of its Emergency Powers Act by the Executive. For example, the Sovereign can only declare a state of emergency for one month and then parliament must sit to reject or ratify it. In fact, the Northern Ireland Emergency Powers Act is a clear-cut example of 'overkill'. Under the Act the Stormont Minister of Home Affairs had the power of life and death over every citizen of the State. |
Legal Sources
• 'Report of a Commission of Inquiry into the Special Powers Acts', published by the National Council for Civil Liberties in 1936 and re-issued in 1972.
• A preliminary draft by an informal working party of the Law Faculty of Queen's University, Belfast, on Emergency Powers (not for publication).
• 'Special Powers Extraordinary.' Northern Ireland Legal Quarterly, vol.20, No.1 (H. Calvert).
• 'Special Powers in Northern Ireland.' Criminal Law Review 1956 (J. Edwards).
• 'The Constitution and State of Emergency', Irish Law Times, Vol.103, pp.211, 221 and 227 (G.A. Lee).
• 'Lost Liberties – the Offences Against the State Act', An Phoblacht, Vol.3, No.5 (1972).
• 'Military Courts and Special Criminal Courts', An Phoblacht, Vol.3, No.6 (1972).
• 'The Minimum Sentences Act', Northern Ireland Legal Quarterly, xxi; 4, 1970 (Kevin Boyle).