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What the Dogs in the Street Know: On the Runs and Hanging Peter Hain Out to Dry

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14 March, 2014
Colin Murray, Constitutional Law
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outside-in

– Colin Murray (Senior Lecturer, Newcastle Law School) [email protected]

This post was first published on Human Rights in Ireland

“In Northern Ireland”, Peter Hain opined in his autobiography Outside In (pictured left), there is “always a crisis around the corner” (p.323). There is more of a feel of truth than truism to the statement, especially as the on-the-runs scandal dominated recent headlines (before being eclipsed by developments in the Crimea). I’d be surprised if a good few Irish viewers watching the BBC 2 drama miniseries 37 Days, on the slide towards the First World War, haven’t felt there is something queasily apposite in the scenes where the UK Cabinet’s attention is wrenched away from the “muddy by-ways of Fermanagh and Tyrone” and towards a developing European Crisis.

As I’ve previously highlighted on humanrights.ie, Northern Ireland has repeatedly seen victims’ interests cranked up or down depending on the aims of the political parties. As the n-the-runs scandal broke, the DUP leader Peter Robinson quivered with outrage at the injustice of “amnesties”, whilst Gerry Kelly’s television interviews stuck rigidly to the acronym “OTRs”, perhaps hoping people would lose interest in his review of the technicalities of why it was inappropriate to describe the assurances given to on-the-runs as amnesties. But in this case the DUP’s readiness to hang Peter Hain, Northern Ireland Secretary from 2005-2007, out to dry for supposed misleading of Parliament seems particularly vindictive.

Hain’s establishment of a seven-person PSNI team to evaluate whether it was possible to inform individuals linked to historic offences that they were now not wanted by police in the UK (Operation Rapid) has been firmly in the spotlight since news first broke on 25 February of the collapse of the prosecution of John Downey for his alleged role in the IRA’s Hyde Park bombing of 1982. The problem, as Mr Justice Sweeney explained, was that the PSNI investigation had not so much been Operation Rapid, but Operation Hasty (at [173](19)):

At the time of Operation Rapid’s review of the defendant’s case, [the PSNI] was aware that the defendant was wanted by the Metropolitan Police in relation to the Hyde Park bombing, but failed to pass that on to the DPP(NI).

On the strength of this review, Northern Ireland’s Director of Public Prosecutions certified that Downey was not wanted in the UK. Downey’s subsequent letter from the Northern Ireland Office, informing him that he was not wanted, had seemingly not counted for much when he had been arrested at Gatwick on route to a holiday in Greece in May 2013. But Mr Justice Sweeney effectively found that Downey had a legitimate expectation that he would not be subject to arrest over the Hyde Park bombing if he came to the UK (at [173](8)):

The standard letter did not amount to an amnesty as such. However, its terms (and in particular the references to the PSNI and the Attorney General) were intended to and did make clear that it was issued in the name of the Government and that the assurances within it could be relied upon with confidence as meaning what they said, namely an unequivocal statement that the recipient was not wanted ‐ with the obvious implication from the remainder that thus the recipient would not be arrested or prosecuted unless new evidence came to light or there was a new application for extradition.

Hain’s effort at a quiet “resolution” of the on-the-runs issue, so thorny that it officially remained part of the Haass Talks agenda, was now very much in the public domain. Cold comfort that, as the judge affirmed, he could not talk account of the impact of his decision on the peace process (at [168]).

This is not the first time that the potent mix of judicial authority and conflict resolution in Northern Ireland has landed Hain in political trouble. But unlike the unfortunate passage in Outside In in which he questions Lord Justice Girvan’s impartiality and speculates over whether the judge had reached his decision over Bertha McDougall’s appointment as Victims’ Commissioner in a fit of pique at property tax reforms in Northern Ireland (p.333), at least Hain has yet to question Mr Justice Sweeney’s integrity. He has, however, been insistent that the issue was not hidden from Parliament. These claims drew a caustic response from the Alliance Party’s David Ford:

I’ve heard Peter Hain say “I have stood up in the House of Commons and said that this has to be addressed”, as if this was somehow was saying “this is how we’ve addressed it”, including the letters. So I think he needs to examine his precise background and perhaps that’s something a judge will be doing over the coming months.

Everyone seems to have jumped on the Blame-Hain Game. Even Labour’s shadow Northern Ireland secretary, Ivan Lewis, has called the John Downey letter a “catastrophic error”, for which he offers an “unequivocal apology”. Just as cutting is Lewis’s air brushing of Hain out of the peace process picture in his letter to the Belfast Telegraph, expressing his pride instead in “what people like Tony Blair, Mo Mowlam and Jonathan Powell … did so under the banner of a Labour Government”. Ouch.

Hain has long admitted to a love of the bargaining process, and a reluctance to let an issue sit, even where caution may be wise: “There are ministers who prefer a quiet ride and manage the in-tray without changing anything, and I never saw myself as one of those” (p.332). Perhaps it is this wheeler dealing, so useful on the ground in 2005-2007, which makes it so easy to ensnare Hain today (and why legal processes in particular have left him so uncomfortably on the spot). But this really feels like hanging the (manifest) faults of the peace process on one person’s shoulders. It wasn’t just Peter Hain, who suffered an addiction to crisis talks and back-room deals. Most of Northern Ireland’s political elite stand implicated alongside him.

And whatever temporary bounce the DUP currently see in the polls, the reckoning from this scandal may well be yet to come. Although on-the-runs play no part in Hain’s autobiography, the prominence of issues surrounding former IRA members in the run up to the St Andrews’ Agreement are plain to be seen. Discussing the suspension of Sean Kelly’s licenced release in 2005, Peter Hain claims that “DUP leaders, often uncannily well informed from within the police, knew all about it well before I did” (p.324). The scandal has all the feel of a “dogs on the street” issue in Northern Ireland. The importance of the on-the-runs issue to Sinn Féin before the St Andrews Agreement was no secret. Equally, it was evident that no arrests were being made or extraditions sought after St Andrews. The missing link did not take much effort to fill in, even had those involved had been discrete in the interim. And they haven’t. Back in 2009 Jonathan Powell set out in his account of deal-making in Northern Ireland, Great Hatred, Little Room: Making Peace in Northern Ireland, that the DUP leadership had accepted the deal and made hay from it for their own purposes:

They said they could accept the implementation of the unpopular undertakings we had made under the Joint Declaration on OTRs as long as Tony wrote to Paisley making it clear that these concessions had been agreed during David Trimble’s watch, not theirs.

This makes the DUP’s ratcheting of the tension on this issue harder to understand, whatever the short-term gains of being seen, as David Cameron put it, to be willing “to unpick or call into question all the difficult decisions that were made” in negotiating a settlement to the Troubles. Mr Justice Sweeney may have vindicated “the public interest in holding officials of the state to promises they have made in full understanding of what is involved in the bargain” (at [175]), but an inquiry will illuminate not only official actions but the approach of Northern Ireland’s politicians towards them. For if the judicial inquiry into the on-the-run letters does reveal widespread knowledge of the scheme in the higher echelons of the DUP, and gives Powell’s claims the imprimatur of judicial legitimacy, the issue will very quickly rebound upon them.

Constitutional Reform – A Labour of love?

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2 March, 2014
Constitutional Law, Harry Dyson, Human Rights Law, North East Law Review Blog Competition
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tonyblair

 (Image source: http://www.dailymail.co.uk/news/article-2138668/Im-ready-comeback-Blairs-millions-quitting–wants-engage-UK-politics.html)

 – Harry Dyson (LLB Law, Newcastle University) [email protected]

Constituents being able to sack their own MP, televised trials, Scottish independence, and prisoner’s rights to vote; these are all constitutionally significant changes that have been proposed.  The Government have shown little in the way of support for any of these, and in the case of Scotland outright opposition. The Government should exercise caution in passing any constitutionally significant legislation and take a hard look at constitutional reform implemented by New Labour.

With our Constitution being more complex and ambiguous than Starbucks’s tax return, how did New Labour fare in their plight to modernise it? An un-written constitution is a wonderful thing, it facilitates modernisation and social change. However the reforms since 1997 have shown both the positives and negatives of an un-written constitution. New Labour’s reforms principally advocate one message to any government aiming to reform; partisan politics have no place in such a process.

The House of Lords have been a thorn in the side of the Labour Party since the days of Ramsay Macdonald, and in 1999 New Labour fought back. The main weapon in Blair’s arsenal being the House of Lords Act 1999. The casualty of this fight against the Lords was unfortunately the relationship between the two houses, which was unwittingly reshaped. The creation of life peerages and the reduction of hereditary peerages to just 92, as pledged in their manifesto, aimed to be more proportionate of Parliament therefore Labour wielding more power. However this unwittingly granted the Lord’s a slither of the one thing that could make them more powerful; legitimacy. Thus the Lords started to challenge their constitutional role, starting with constitutional conventions. That very same year Lord Strathclyde boasted that the convention that the Lords would not veto secondary legislation was ‘dead’. Lib-Dem Lords went as far as to openly oppose the Salisbury convention! Labour’s partisan legislation thus unwittingly inspired a train of thought advocating the Lords vetoing manifesto pledges – counter-productive for both our democracy as a whole and for the Labour Party.  The 1999 Act was short sighted and failed to protect conventions which are key to our democracy. Lesson one; stay well clear of partisan party politics.

A question that will haunt Tony Blair forever; did New Labour get anything right? The Human Rights Act 1998. This radical constitutional change was carried out very well. The 1998 Act incorporated most of the Human Rights Act into our law. However it did so while protecting the holy grail of constitutional theory; Parliamentary sovereignty. Dicey advocates Parliament is not ‘politically sovereign’ – It would be almost impossible, politically, to repeal the HRA without a suitable replacement. However legally Parliament could repeal it whenever they pleased. The Act allows the court simply to file a declaration of incompatibility if new legislation breaches the convention. So Parliament could in theory legislate contrary to every article in the ECHR. Despite this the ECHR is seemingly obeyed, for example the Belmarsh case. Here it was held the Anti-Terrorism Crime and Security Act 2001 incompatible and Parliament swiftly amended it as appropriate. The Act may have appeared moderate by having such limited court power, however understanding of Diceyan theory explains why this approach works well. New Labour exercised the caution and restraint here that was missing in their Lords reform. Lesson two; respect Dicey.

Maintaining the separation of powers is an underlying theme throughout Labour’s reform. The Constitutional Reform Act 2005 removed the Law Lords from the Upper Chamber and removed the Lord Chancellor’s judicial functions. This stripped Blair’s old friend and mentor Lord Irvine of the role of speaker of the Lords – a welcome modernisation. This constitutional reform, in contrast to Lords reform, although not escaping criticism, showed almost apolitical legislation. Any future constitutionally significant legislation will have to, in order to benefit the country, be somewhat apolitical in nature. Lesson Three; to coin a phrase used by Ramsay Macdonald in 1929 – reform should ‘put country before party’.

Allowing prisoners to vote may seem a fresh liberal approach, and yet another chance to throw around the term ‘human rights’, however it should be looked at with both foresight and caution. Lords reform is a prime example. I wouldn’t go as far to suggest that the ‘criminal vote’ would have a significant impact on British politics – however how would the political parties win this vote? If this would cause a lean in policies ever so slightly towards prisoner friendly policy, is this something we can allow? Despite the fact Labour may benefit from a prisoner vote, perhaps it should follow Blair’s stead in the case of the Lord Chancellor and put country before party.

Televising trials is also a risky proposal. The media already have an unwelcome influence on trials, especially given the lack of anonymity for defendants (Operation Yewtree being a prominent example), should we really be welcoming more? The possible political influence also shouldn’t be underestimated, as we have seen before in the Venables case. Labour’s reforms were successful because of their maintaining of the separation of powers – keeping politics out of the courtroom. Once again caution has to be exercised. In the meantime Mr Pistorius will be making for interesting viewing.

Scottish independence would easily dwarf Labour’s efforts in terms of constitutional reform. The unintended results of relatively minor Lords reform should be a huge warning shot to politicians on both side of the debate. Should Scotland vote for their independence it will prove to be the biggest ever test of a Government’s ability to implement constitutional reform.

Whatever your political persuasion one thing is clear; the Government of the day need to take extreme care in even the most moderate of reforms. New Labour’s efforts were on the whole beneficial for our country, however they highlight the need for foresight and caution. Scotland’s bid for independence is currently the biggest threat to our constitution, the changes it would force could have very unpleasant results in the long term for our constitution. However what is for certain is that a yes vote on the 18th of September would make for a very interesting couple of years for Public Law students and commentators.

 

Lessons from the Lex Gabinia

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20 February, 2014
Administrative Law, Civil Liberties, Constitutional Law, Harry Perrin, Human Rights Law
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‘Gnaeus Pompeius Magnus’ (‘Pompey’ or ‘Pompey the Great’)

– Harry Perrin (Independent Scholar and Trainee Solicitor)

It wasn’t all yo-ho-ho and a bottle of rum for the Ancient Romans when it came to pirates. By the fourth decade of the first century BC, Plutarch tells us, the pirates were so prevalent in the Mediterranean that ‘all navigation and all commerce were at a standstill’ causing resource shortages and volatile food prices. ‘Roman supremacy’, Plutarch continues, was ‘brought into contempt’ not only by the pirates’ ‘seizures of high ranking officials, and the ransoms which they demanded for captured cities’, but by ‘their flute-playing, their stringed instruments, their drunken revels along every coast.’ Evil crimes indeed.

The way in which the Romans dealt with the problem tends to spring to my mind whenever our country today is faced with situations billed as ‘emergencies’ or ‘extraordinary’.

The constitution of the Roman Republic in the first century BC was designed so that no one person could amass too much power over too prolonged a period: ‘an elaborate set of precautions against the accumulation of executive power in a single person’, notes Eric Posner, ‘to prevent the recurrence of monarchy’. There were two heads of state, the consuls, who held office for one year. The post which a consul would typically hold afterwards, the proconsulship – governing a foreign province in the Roman territories – was also limited in term to one year to prevent an already powerful individual accruing too much military might away from the watchful eyes of Rome.

If you are a fan of irony, you may already have spotted that from this Republic’s careful constitution sprang one of the most powerful empires we have known. Note also that Sulla, a constitutional reformer who tightened many checks and balances in 81BC (including limiting the proconsulship to one year), did so when he himself was holding dictatorial power on the basis of an emergency; and note the lex Gabinia.

One hundred and twenty thousand infantrymen, five thousand cavalrymen, five hundred ships, and the right to appoint twenty four powerful lieutenants, were among the resources allotted to Pompey by Gabinius’ law, passed in 67 BC, to combat piracy in the Med. In terms of territorial command, Plutarch notes that Pompey’s power over the sea and mainland areas up to fifty miles inland meant that ‘there were not many places in the Roman world which were not included.’ He had not only ‘the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone.’ So much for the elaborate system of checks and balances.

Unsurprisingly with these resources Pompey dealt with the problem with incredible speed. Food prices dropped as soon as the lex Gabinia was passed and piracy was quashed within three months.

But Pompey did not surrender his power. Another ‘extraordinary situation’ justified Pompey not only keeping his naval command and resources, but being allotted further power over the Roman territory in the East, including the military forces already stationed there, then under the command of his colleagues Lucullus and Glabrio. The lex Manilia was passed to this effect in 66BC. The justification: war in the East, against Mithridates and Tigranes.

It is easy to turn history into linear narratives and morality tales with the benefit of hindsight, and history’s headlines should be questioned and re-questioned for accuracy and fairness. The headline point here is that the excessive accrual of power by Pompey clashed with the excessive accrual of power by Julius Caesar. Caesar crossed the Rubicon, said ‘the die is cast’; civil war, birth of the empire and the rest, as they say, is ancient history.

Headlines are memorable though, and I do remember the lex Gabinia whenever ‘emergency measures’ are proposed today. Take the detention of terror suspects. Until January 2011, the state could detain those suspected of terrorism-related offences, without charge, potentially without even telling them the reason for their detention, for up to 28 days. Unsuccessful proposals went before Parliament to raise this to ninety and then forty two days. The justification for prolonged detention without charge was that the country was in an extraordinary situation, and emergency measures were appropriate.

And were the laws put back to normal once the emergency had passed; once the pirates had been defeated, as it were? The detention-without-charge period was restored to fourteen days, but, as human rights group Liberty points out, this is still high compared with the USA (two days), Italy (four days), Canada (one day) and Ireland (seven days). Many would argue that the danger still exists here, that the pirates have not been conquered. This may or may not be so, but when a so-called extraordinary situation prevails for so long, it becomes the norm – it becomes ordinary – and we should discount any arguments based on the need to deal with an emergency in our assessment of whether laws in question are proportionate.

And take the trials following the summer 2011 riots, where courts sat throughout the night. Keir Starmer, Director of Public Prosecutions at the time, has praised the role of this swift administration of justice in curbing the disorder. Sentences for crimes committed during the riots were on average 4.5 times longer than those for similar offences in the previous year. This is not problematic per se, provided that due process was followed: judges can take account of the context of crimes when sentencing.

More of a concern is that due process was not followed. Solicitors who acted for defendants in the riot trials have voiced concerns, noting knee jerk reactions from judges, ‘conveyor-belt justice’, and a failure to distinguish between ringleaders and followers. A magistrate stated that the usual sentencing rulebook for children with no previous convictions had been ‘torn up and thrown away’.

The justification for the all-night courts was that the emergency in which the country found itself in August 2011 required an extraordinary response. This may well hold water. My concern though, and that of the defence lawyers cited above, is that these measures may have been disproportionate to the extent that they unjustifiably interfered with the defendants’ right to a fair trial.

I acknowledge that had the judiciary and the government failed to deal adequately with the riots, the consequences would have been dire – even more so than they were, and that all-night courts may well have been the best option. And the lex Gabinia may have been the right way of dealing with the pirates. Pompey succeeded where no other commander did. It is easy to point at it now as the beginning of the end of the Roman Republic, but if the pirates had prevailed, we might all be playing flutes and speaking pirate now. Aargh!

I have never been suspected of terrorism or rioting, or even piracy (though I have once exhibited drunken behaviour in a Mediterranean coastal-town). I do however urge the conscientious citizen to assess any proposals which have the potential to infringe on our rights or constitution and to bear in mind the lex Gabinia. Ask the following, because these issues matter to all of us:

  1. Is the measure proposed proportionate to the issue it is proposed to deal with?
  2. Are the reasons for justifying the measure sufficiently closely related to the measure, and if any of these reasons fall away (‘emergency measures’ when the emergency has ceased) is the measure still justified?
  3. Has consideration of the proposed measure been properly weighed up against a consideration of its effects on the constitution and on our rights?

There we have it: the ‘caveat Gabinia’. I have just coined a phrase. Latin scholars correct my grammar before it catches on.

A Critique of Justice Scalia

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20 June, 2013
Constitutional Law, Thomas Gordon
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Antonin_Scalia2(Source: http://www.supremecourt.gov/about/members.aspx)

– Thomas Gordon (LLB Law, Newcastle University) [email protected]

‘To look for the original meaning, or not to look for the original meaning?’ That is the question on literally a few people’s lips. That the US Constitution is ‘living’ is a fact. Judicial interpretations of laws such as the Commerce Clause have changed over the past 200 years, and continue to do so. Whether or not ‘Originalism’ should be preferred is merely an academic debate. Even the supposedly originalist judge Justice Scalia does not absolutely prioritise original meaning when stare decisis makes it impractical to do so.

Indeed, the ‘Living Constitution vs Originalism’ debate is a smoke screen for the highly political impulses lying beneath such rhetoric. Take, for example, the above mentioned Justice Scalia in Lawrence v Texas. In this case, the majority declared a state law banning sodomy between consenting homosexuals to be unconstitutional. Dissenting, Scalia used reasoning based upon the ‘rational basis’ approach found in substantive due process jurisprudence. He therefore implicitly accepted a line of jurisprudence arising NOT from Constitutional text, but a theorising footnote from Carolene Products. Presumably ‘stare decisis’ was the reason behind this.

However, the same judge is all too ready to let the world-and-his-wife know about how he would overturn Roe v Wade. The time difference between Roe and Carolene Products, if stare decisis is a great concern, is 35 years (a small proportion in the, admittedly young, life of the United States). There have been other major cases paying lip service to Roe as well (most notably Casey). Its international fame and judicial acceptance means that Roe is one of the most embedded decisions in US Constitutional law.

Why is there a difference in approach between the two cases?

The clear answer is personal politics. Scalia’s opinions favour socially conservative results. This would be acceptable if a defensible method were consistently used to reach them. However, he does not do this. Scalia criticises Roe by saying that the right protected in that case is not found in the Constitution, but dissented in Lawrence using a form of reasoning that is judicially invented.

What is even more ugly, beneath the attractive velour of originalist rhetoric, is that he is a judge showing a level of self-belief that is actually destructive of the republican philosophy he supposedly supports. Republicanism is an approach to governance where ultimate power rests with the people. The democratic legitimacy theory behind Originalism, that the government should only have the powers that the public thought they were giving it when they voted upon the Constitution, is therefore rested in republicanism. However, Scalia is too ready to ignore the powers that people currently think should lie with central government. The fact that Roe has not been overruled by Constitutional Amendment shows a level of acceptance by the American public that ought to be respected.

Additionally, he is incredibly ready to support invented legal categorisations, as he did in the ‘Obamacare’ decision Sebelius in relation to the Commerce Clause, to strike down a President’s signature piece of legislation. This hardly shows a willingness to respect the idea of a social contract between the governed and the governing that he would sometimes like people to believe.

A judge that did show a willingness to respect the democratic process was Justice Jackson. Two of his key decisions – Steel Seizure Case and Wickard v Filburn, allowed current politics to decide upon the constitutionality of federal action. This approach is preferable to Scalia’s legalistic methods. This is because when a case reaches the Supreme Court, the federal level of government is determining the Constitution’s meaning. However, it is the only branch of the Federal Government that is not elected by the public. Therefore, where federal legislation appears to be Constitutional (as the Obamacare legislation appeared to be acceptable under the Commerce Clause), the nuanced debate over the extent of governmental power should rest with the elected branches’ wishes, as Justice Jackson recognised in both of the mentioned cases. Moreover, Justice Scalia does not have a defensible method that he remains loyal to. He is unpredictable, and ultimately is willing to usurp elected decision making for his own personal preferences. His stated desire (to prioritise self governance as a value) is better served by a more lenient Jacksonesque approach than the one he currently takes.

All Liars: Thatcher and the Troubles

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25 May, 2013
Colin Murray, Constitutional Law
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MARGARET-THATCHER---1983-007

– Colin Murray (Senior Lecturer, Newcastle Law School) [email protected]

‘I’ve got one thing to say to you, my boy … you can’t trust the Irish, they are all liars … and that’s what you have to remember, so just don’t forget it’. Death cannot constrain the effervescent charm of Margaret Thatcher. Or maybe Peter Mandelson, who revealed this gobbet of bile to the world in the aftermath of her death, still knows how to skewer his political opponent with an anecdote to which she can’t very well respond.

Fabrication or not, the story had enough of a ring of truth to it to eat up column inches in the aftermath of Thatcher’s funeral. Kevin Meagher’s New Statesman blog post sums up the reflexive response the story; the quote was the product of ‘Thatcher’s own strident unionism’. Conversely, claims by her official biographer, Charles Moore, that her hatred was directed only towards terrorists and not to the Irish as a people, and that her comments to Mandelson reflect the early stages of her dementia, seem all-too-convenient.  I’m not sure that the story can be dismissed as either simple paddy-wackery, or that her comments can so easily be brushed under the table.

Thatcher was UK Prime Minister throughout the bloody slog of the 1980s (and a cabinet minister and leader of the opposition for the 1970s). She had therefore been party to most of the false starts and peace initiatives of these decades. Moreover, Mandelson revealed that their conversation took place at the time of his appointment as Northern Ireland Secretary, in the crucial phase after the introduction of power sharing following the Good Friday Agreement, when negotiations were still needed to bed-in policing reforms, secure paramilitary decommissioning and bring the DUP fully round the table. The “all” in her statement is telling. Loyalist, unionist, nationalist and republican were, for Thatcher, allIrish, and were arguably the collective subject of her ire.

The loss of her Shadow Northern Ireland Secretary (and the man who had masterminded her Conservative Party leadership campaign), Airey Neave, to an INLA car bomb just over a month before her 1979 general election triumph is often regarded as having a dramatic impact on her approach to the Troubles. It certainly affected the early years of her administration. In many respects Enoch Powell, Ulster Unionist MP for South Down since 1974 (having been exiled from the Tory party in the wake of his “Rivers of Blood” speech), is the Svengali of the piece, trying to control Thatcher’s administration from off-stage.

Powell was convinced that only full integration of Northern Ireland within the centralised government structures of the UK could avert a united Ireland. He met with Thatcher privately, goaded her publically and at one point even claimed to have struck a secret deal with Airey Neave over the direction of Northern Ireland policy. Under this influence, the Thatcher administration seemed to hold firm to a policy of greater integration of Northern Ireland with the remainder of the UK. Her government did not see any return to special measures such as internment. The use of targeted extra-judicial killings, such a prominent part of Labour’s policy in the late-1970s, was scaled back. Instead, Thatcher was determined to deal with terrorism in Northern Ireland through the “ordinary” criminal justice process (at least, as ordinary as any system using Diplock Courts and a raft of special terrorism offences can be): ‘Crime is crime is crime, it is not political’. Her attachment to this position, which saw the removal of Special Category Status for all paramilitary prisoners in March 1980, precipitated the Hunger Strikes of 1980-1981.

The Thatcher Government’s integration policy, however, was never as dogmatic as her critics have made out. “Criminalisation” was less a gut reaction to groups Thatcher would gladly have dealt with by entirely military means, than a way of buying off Powell and his acolytes. For as Thatcher conveyed the public image that violence in Northern Ireland would be treated by her Government in the same way as violence anywhere else in the UK, her ministers were laying the foundations for a major effort to address nationalist grievances over the mis-government and abuse of power in the Stormont Parliament era. From 1980 onwards, White Papers began to hint towards an “Irish dimension” in Northern Ireland’s governance.

A culmination of factors brought the new policy to fruition. First, the Hunger Strikes broke the integrationist spell. “Treat Northern Ireland like any other part of the UK” was clearly an inadequate prescription. Powell’s grip on Thatcher weakened as her own star rose following the Falklands War. When Argentina invaded the Falkland’s Powell had thrown the Iron Lady epithet in Thatcher’s face, telling Parliament that the weeks ahead would show “of what metal she is made”. Two years later, the Brighton bombing might well have increased Thatcher’s hatred for Republican groups, but it also gave her useful leverage to deal with them. The final, and most important, piece of the puzzle came about with the election of theFine Gael-Labour Coalition Government in Ireland in December 1982. It is easily forgotten at 30-years remove how powerfully Charles Haughey feared that doing a deal with Thatcher would alienate his republican base. Indeed, the archives of the Thatcher Foundation reveal how Haughey-Thatcher negotiations would often send UK policy “back to the drawing board”. The Coalition Government avoided these preoccupations.

Despite this confluence of favorable circumstances in the early 1980s, it soon became clear to Garret FitzGerald that Thatcher herself was an impediment to inter-governmental negotiations, not necessarily for the UK Government view she put across, but for her own relentlessly patronising manner. The Anglo-Irish Agreement which emerged from these tortured sessions (and more substantively, from civil service an ministerial meetings at which Thatcher was absent) stands as a legal landmark, introducing permanent as opposed to ad hoc inter-governmental co-operation in the governance of Northern Ireland and a permanent secretariat, part-stocked by civil servants from the Republic, based in the Belfast suburb of Maryfield. Thatcher held her nose, held her nerve, and signed.

At a swoop, the Agreement sundered Enoch Powell’s efforts to have Northern Ireland fully integrated into the remainder of the UK. He seethed, and amid the “Ulster Says No” protests he once again harried Thatcher in Parliament, warning her that ‘the penalty for treachery is to fall into public contempt‘. The Unionist MPs launched a mass series of by-elections to highlight their fury, with Powell narrowly retaining his seat.

The Agreement’s short term impact was to deepen divisions. It would take over a decade for ardent anti-Agreement Unionists like Michael McGimpsey (who famously challenged the constitutionality of the Agreement before the Irish Supreme Court) to advance to the front rank of pro-Good Friday Agreement Unionism. But members of Thatcher’s Government laboured to make the Anglo-Irish arrangements work and to spur other peace initiatives. Only the declassification of documents under the thirty-year rule will disclose the full extent of Thatcher’s knowledge of the first, tentative, Hume-Adams talks in 1988. Nonetheless, the message put across in Northern Ireland by her last Northern Ireland Secretary, Peter Brooke, built on this dialogue. Brooke would be the first Northern Ireland Secretary to float the idea that future talks could involve Sinn Fein, opening the channels for dialogue into the 1990s.

Looking back at the Anglo-Irish Agreement now, its position as a “game-changing” event in Northern Ireland’s history seems self evident. But, in publishing her memoirs The Downing Street Years in 1993, Thatcher was still patently queasy about her administration’s approach to Ireland, and about the Agreement in particular:

I started from the need for greater security, which was imperative. If this meant making limited political concessions to the South, much as I disliked this kind of bargaining I had to contemplate it.

Even in 1998, when the co-operation between the UK and Irish Governments had borne fruit in the Good Friday Agreement, Thatcher could not resist scratching at old wounds. Reviewing a biography of Enoch Powell, she came close to dismantling her own legacy, revealing how Powell’s barbs in the aftermath of the Agreement had wounded her: ‘hisassessment was right, though I wish that on this as on other occasions he had been less inclined to impugn the motives of those who disagreed with him’.

I often seem to reach for the adage that if some policy or actor in Northern Ireland politics seems to be annoying all sides then they must be doing something right. Perhaps Thatcher is the exception to the rule.Throughout her tenure as PM she found herself neck deep in the skullduggery and machinations of Troubles-era politics. Republicans tried to murder her andmurdered her colleagues and friends. Unionists repudiated her with all the vitriol they could muster. If she did hate the Irish, collectively, then to all intents and purposes it must have seemed to her that the feeling was mutual.

And yet the Anglo-Irish Agreement and Hume-Adams talks were the foundations on which the peace process was built. Thatcher must at once be seen as a figure who deepened the divides of the Troubles and who ultimately helped to pave the road out. Ironically, for the woman who brought Saatchi & Saatchi into UK politics, an image problem will forever hang over her achievements in Northern Ireland. The impression lingers that what good she did, she often did in spite of herself.