What Did the Lawyers Do During the 'War'? Neutrality, Conflict and the Culture of Quietism

Modern Law Review

Volumn 74, Issue 3, 2011, Pages 350-384

  Mcevoy, Kieran ^a,b  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

^b QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79959731173     PISSN: 00267961     EISSN: 14682230     Source Type: Journal    
DOI: 10.1111/j.1468-2230.2011.00851.x     Document Type: Article

References (205)

1. R. Abel, Politics By Other Means: Law and the Struggle Against Apartheid in South Africa 1980-1994 (London: Routledge, 1995
2. G. Hogan and C. Walker, Political Violence and the Law in Ireland (Manchester: Manchester University Press, 1989
3. J. Jackson and S. Doran, Judge Without Jury: Diplock Trials in the Adversarial System (Oxford: Oxford University Press,1995
4. J. Morison and S. Livingstone, Reshaping Public Power: Northern Ireland and the British Constitutional Crisis (London: Sweet and Maxwell, 1995); B. Dickson, The European Convention on Human Rights and the Northern Ireland Conflict (Oxford: Oxford University Press, 2010
5. C. Harvey , Human Rights,(ed) Equality and Democratic Renewal in Northern Ireland (Oxford: Hart, 2001) K. McEvoy and J. Morison, 'Beyond the Constitutional Moment: Law, Transition and Peacemaking in Northern Ireland' () 26 Fordham International Law Journal 2003961
6. C. Campbell F. Ní Aoláin and C. Harvey, 'The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland' () 66 The Modern Law Review2003 317
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8. A. Sarat and S. Scheingold 'Cause Lawyering and the Reproduction of Professional Authority' in A. Sarat and S. Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998 3
9. K. McEvoy, 'Law, Struggle, and Political Transformation in Northern Ireland' (2000) 27 JLS 542; K. McEvoy, 'Beyond Legalism: Towards a Thicker Understanding of Transitional Justice' () 34 JLS2007 411
10. Those interviewed included 12 judges, 18 barristers (9 of whom were QCs), 21 solicitors and a number of officials associated with the Law Society, Director of Public Prosecutions, Bar Council and Northern Ireland Service. Unless interviewees indicated that they wished their comments to be explicitly attributed, interviews were conducted on conditions of confidentiality and anonymity. Interviews were semi-structured, framed around key human rights and historical themes and usually lasted 1-2 hours. A 'purposeful sampling' methodology was deployed where interviewees were chosen using a range of criteria including professional seniority, experience of working on conflict or human rights related cases or knowledge and experience of debates within the professional groupings. There was a more or less even divide amongst the barristers between those who had acted as defence lawyers or prosecutors (or in some cases both) and a number of the judges were also former prosecuting counsel. An initial 'wish list' of key interviewees was drawn up, these were written to and, after some negotiation, almost all agreed to be interviewed. Once fieldwork was commenced, others were recruited using 'snowball' referrals to professional friends and colleagues. There are well-established challenges to an exclusive focus on 'elite level' interviews such as these, usually concerning access, interviewee skills at avoiding difficult or challenging questions and the danger of over-representing hegemonic understandings of historical events unchallenged by critical perspectives 'from below'. However, in this study, access proved largely unproblematic, interviews were supplemented by extensive archival research and the author (and others) had previously conducted extensive research on those directly affected by the legal process during the Northern Ireland conflict. In that context, interviews with legal elites were adjudged the most appropriate means to understand the broader political, social and cultural forces at work within the professional community. For similar methodologies deployed with lawyers, see E. Smigel, The Wall Street Lawyer: A Professional Organizational Man (Bloomington IA: Indiana University Press, 1969) and C. Shdaimah, 'Dilemmas of Progressive Lawyering: Empowerment and Hierarchy' in A. Sarat and S. Scheingold (eds), The World Cause Lawyers Make (Stanford CA: Stanford University Press, 2005). For a more general discussion of relevant design challenges see S. Merriam, Qualitative Research: A Guide to Design and Implementation (San Francisco CA: Wiley, 2009), and L. Dexter, Elites and Specialised Interviewing (Colchester: ECPR Press, 2006
11. J. Heinz and E. Laumann, Chicago Lawyers: The Social Structure of the Chicago Bar (New York: Russell Sage Foundation, 1983); T. Halliday, Beyond Monopoly: Lawyers,For an overview State Crises and Professional Empowerment (Chicago: University of Chicago Press, 1987); R. Abel (ed), Lawyers: A Critical Reader (New York: The New Press, 1997); R. Abel, English Lawyers Between Market and State: The Politics of Professionalism (Oxford: Oxford University Press, 2004); L. Fox (ed), Raising the Bar: Real Word Solutions for a Troubled Profession (Chicago: American Bar Association, 2007
12. T. Johnson, Professions and Power (London: Macmillan, 1972); K. MacDonald, The Sociology of the Professions (London: Sage, 1995); J. Evetts et al, 'Sociological Theories of Professions: Conflict, Competition and Cooperation' in A. Dennis and I. Kalekin-Fishman (eds), The ISA Handbook in Contemporary Sociology (London: Sage, 2009
13. M. Burrage, Revolution and the Making of the Contemporary Legal Profession: England, France, and the United States (Oxford: Oxford University Press, 2006). See also D. Sugarman and W. Pue (eds), Lawyers and Vampires: Cultural Histories of Legal Professions (Oxford: Hart, 2003
14. S. Ellman,'Law and Legitimacy in South Africa' Abel, n 1 above; () 20 Law and Social Inquiry4071995
15. D. Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Hart,1998
16. Y. Dezaley and B. Garth, The Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States (Chicago: University of Chicago Press, 2002); R. Pérez Perdomo, Latin American Lawyers; A Historical Introduction (Stanford: Standford University Press, 2006
17. R. Brooks, 'The New Imperialism: Violence, Norms, and the "Rule Of Law"' () 101 Michigan LR 22752003
18. A. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002) esp chs 4 and 5; R. Weisberg, 'Loose Professionalism, or Why Lawyers Take the Lead on Torture' in S. Levinson (ed), Torture: A Collection (New York: Oxford University Press, 2004); R. Bilder and D. F. Vagts, 'Speaking Truth to Power: Lawyers and Torture' (2004) 98 American Journal of International Law 689; D. Luban, 'Lawyers and Legal Ethics in Guantanamo' (2007) 60 Stanford LR 1981
19. A. Meyerstein, 'The Law and Lawyers as Enemy Combatants' (2007) 18 University of Florida Journal of Law and Public Policy 299; M. Cheh, 'Should Lawyers Participate in Rigged Systems The Case of Military Commissions' (2007) 1 Journal of National Security Law and Policy 375; H. Bruff, Bad Advice: Bush's Lawyers and the War on Terror (Lawrence KS: University of Kansas Press, 2009
20. O. Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends For the classic discussion on contested understandings of the rule of law (Princeton NJ: Princeton University Press,1961
21. S. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven: Yale University Press, 2nd ed, 2004
22. A. Sarat and S. Scheingold (eds), n 5 above; A. Sarat and S. Scheingold (eds), Cause Lawyering and the State in a Global Era (New York: Oxford University Press, 2001
23. S. Scheingold and A. Sarat, n 4 above; A. Sarat and S. Scheingold (eds), Cause Lawyers and Social Movements (Palo Alto CA: Stanford University Press, 2006
24. T. Halliday, L. Karpik and M. Feeley, 'The Legal Complex and Struggles for Political Liberalism' in T. Halliday, L. Karpik and M. Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford: Hart Publishing, 2007
25. R. Abel, 'The Professional is Political' () 11 International Journal for the Study of the Legal Profession 1312004
26. S. Aust, Baeder Meinhof: The Inside Story of the R.A.F. (New York: Oxford University Press, 3rd ed, ) esp part four2009
27. Interview barrister 23 June 2008
28. During the conflict judges were by far the most likely to be attacked by paramilitaries. At least 18 Republican paramilitary attacks were carried out against the judiciary, resulting in the murders of two magistrates, two county court judges, and Gibson LJ and his wife as well as one member of the Director of Public Prosecutions (DPP) office. Politically active lawyers were also targeted. For example, the IRA murdered Unionist politician and law lecturer Edgar Graham and Loyalists killed law student and Sinn Féin activist Sheena Campbell. These instances aside however, part of the shock provoked by the killing of solicitor Pat Finucane (discussed below) was that until then, lawyers had been broadly viewed as 'off-limits' by both Republicans and Loyalists. Interview Director of Public Prosecutions and staff, 12 November 2002. See also C. Blair, Judicial Appointments: Research Report 5 Criminal Justice Review of Northern Ireland (Belfast: HMSO, 2000) 29
29. K. McEvoy and R. RebouchéFor a fuller discussion of the analytical utility of critical junctures (concerning the role of bar councils and law societies in a range of jurisdictions) see ,'Mobilising the Professions: Lawyers, Politics and the Collective Legal Conscience' in J. Morison, K. McEvoy and G. Anthony (eds), Judges, Transition and Human Rights (Oxford: Oxford University Press, 2007
30. K. Thelen, S. Steinmo and F. Lonstreth (eds), Structuring Politics: Historical Institutionalism in Comparative Analysis (Cambridge: Cambridge University Press, 1992); K. Thelen, 'Historical Institutionalism in Comparative Politics' (1999) 2 Annual Review of Political Science 369; E. Sanders, 'Historical Institutionalism' in R. Rhodes, S. Binder and B. Rockman (eds), The Oxford Handbook of Political Science (Oxford: Oxford University Press, 2006
31. P. Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton, NJ: Princeton University Press,2004)
32. J. Mahoney, 'Path Dependent Explanations of Regime Change: Central America in Comparative Perspective' () 36 Studies in Comparative International Development1112001
33. J. W. Hogan, 'Remoulding the Critical Junctures Approach' (2006) 39 Canadian Journal of Political Science 657; J. Hogan and D. Doyle, 'A Comparative Framework: How Broadly Applicable is a "Rigorous" Critical Junctures Framework' () 44 Acta Politica2112009
34. G. Capoccia and R. Kelemen,'The Study of Critical Junctures: Theory, Narrative, and Counterfactuals in Historical Institutionalism' () 59 World Politics 3412007
35. R. B. Collier and D. Collier, Shaping the Political Arena: Critical Junctures, the Labor Movement, and Regime Dynamics in Latin America (Notre Dame IN: University of Notre Dame Press, 2002
36. Hogan and Doyle, n 26 above.
37. M. Halbwachs, On Collective Memory (Chicago: University of Chicago Press, translated by L. A. Coser, 1992) and R. Narvaez, 'Embodiment, Collective Memory and Time' () 12 Body and Society 512006
38. It could be argued that the consensus amongst the interviewees was a reflection of the sampling methodology. As was noted above the vast majority of those judges and lawyers interviewed had direct experience of conflict related cases, criminal work and/or human rights litigation. Undoubtedly the vantage point of a sample of property or tax lawyers on what constituted the key legal events of the past forty years would have been different although perhaps of less obvious relevance to the broader parameters of the conflict which is the focus of this paper
39. B. Purdie,Politics in the Streets: The Origins of the Civil Rights Movement in Northern Ireland (Belfast: Blackstaff Press, 1990); N. Ó Dochartaigh,For an overview From Civil Rights to Armalites: Derry and the Birth of the Irish Troubles (Cork: Cork University Press,1997
40. H. Calvert,Constitutional Law in Northern Ireland (London: Stevens and Sons, 1968
41. E. Phoenix,Northern Nationalism: Nationalist Politics, Partition and the Catholic Minority in Northern Ireland (Belfast: Ulster Historical Association, 1994) 368
42. K. McEvoy and C. White, 'Loyalty, Redress and Citizenship: Security Vetting in Northern Ireland' () 61 The Modern Law Review 3411998
43. M. Farrell, Northern Ireland: The Orange State (London: Pluto Press, 2nd ed, 1980)
44. B. Devlin, The Price of My Soul (London: Pan Books Ltd, 1969); C. McCluskey, Up Off Their Knees: A Commentary on the Civil Rights Movement in Northern Ireland (Dungannon: Conn McCluskey and Associates, 1989); M. Dooley, Black and Green: The Fight for Civil Rights in Northern Ireland and Black America (London: Pluto, 1998)
45. A photograph of a parade in Dugannon in 1963 saw two little boys, one with his faced blackened holding a placard which read 'We are pals from Alabama, Where they say we cant agree, is there really much difference, When you look at him and me.'Dungannon Observer 21 September 1963
46. G. M. Maney, 'Transnational Mobilization and Civil Rights in Northern Ireland' () 47 Social Problems 1532000
47. While the strained relations between the cause lawyers of the National Association for the Advancement of Coloured People (NAACP) and other more radical organisations in the US are well established, even the more sceptical commentators would acknowledge that lawyers were 'instrumental in constituting the civil rights movement': Sarat and Scheingold (2006), n 16 above, 7. For an important critique of the 'overselling' of the importance of lawyering in the US civil rights movement, see K. Mack, 'Rethinking Civil Rights Lawyering and Politics in the Era Before Brown' () 115 Yale LJ2562005
48. Campaign for Social Justice, Northern Ireland: The Plain Truth (Dungannon: CSJ, 1964)
49. The grounds were that the applicant concerned was not claiming personal discrimination in the allocation of housing. See Dickson, n 2 above 45
50. CSJ, Northern Ireland: The Mailed Fist (Dungannon: CSJ and the Association for Legal Justice, 1972
51. CSJ, Northern Ireland Legal Aid to Oppose Discrimination: Not Likely (Dungannon: CSJ, 1966
52. E. McCann, War and an Irish Town (Harmondsworth: Penguin, 1974 35
53. Interview with Northern Ireland Solicitor, 8 February 2010
54. The five objectives of the Association were to defend the basic freedom of all citizens; to protect the rights of the individual; to highlight all possible abuses of power; to demand guarantees for freedom of speech, assembly and association; and to inform the public of their lawful rights. NICRA, We Shall Overcome: The History of the Struggle for Civil Rights in Northern Ireland, 1968-1978 (Belfast: NICRA, 1978
55. Purdie, n 32 above 133
56. A and Others v UK (App No 3625 and others) () Ybk 340, 1970434
57. Northern Ireland Society of Labour Lawyers (NISLL), A State of Emergency: A Review of the Northern Ireland Special Powers Act (Belfast: NISLL, 1969); NISLL, Public Order (Belfast: NISLL, 1969); NISLL, Discrimination: Pride for Prejudice (Belfast: NISLL, 1969). As one founding member recalled: 'They were quite prophetic, they were just small little pamphlets, polemics if you like, that's all they were. I don't think any of us knew what was coming. We were arguing really for the emergency powers to be scaled down and we were arguing for anti-discrimination legislation in the private and public sector, and I am rather proud that we did that.' Interview with Northern Ireland solicitor, 3 March 2003
58. Interview with Northern Ireland barrister, 14 November 2002
59. Interview with same Northern Ireland barrister, 14 November 2002
60. For example Dickson, n 2 above 47, argues that one of the reasons why the cases which the CJS and NICRA sought to take to Europe ultimately floundered was that it seemed the lawyers involved 'did not do their jobs properly'. He also notes that when the then MP for Mid-Ulster Bernadette Devlin lodged an unsuccessful challenge at Strasbourg against her conviction for riotous behaviour she chose to be represented by a firm of London solicitors
61. As Hadden and Hillyard summarised in 1973, 'Of 20 High Court judges appointed since the independent Northern Ireland courts were established, 15 have been openly associated with the Unionist party. Of 23 County Court appointments, 14 had been visibly connected with the Unionist administration. At the height of the civil rights campaign in the late 1960s two of the three judges in the Northern Ireland Court of Appeal were ex-Attorneys General in Unionist governments: one of the four High Court judges was likewise an ex-Attorney General, and another the son of an Attorney General; two of the five County Court judges were ex-Unionist MPs and another the son of a Unionist MP, an ex-Unionist Senator, a defeated Unionist candidate and a former legal advisor to the Minister of Home Affairs.' T. Hadden and P. Hillyard, Justice in Northern Ireland: A Study in Social Confidence (London: Cobden Trust, 1973) 11
62. See Morison and Livingstone, n 2 above
63. Dickson, n 2 above
64. R. Rosenbern, The Hollow Hope: Can Courts Bring About Social Change (Chicago: University of Chicago Press, 1991); M. McCann,See Scheingold, n 16 above. See also Pay Equity Reforms and the Politics of Legal Mobilization (Chicago: University of Chicago Press,1994
65. C. Mandfredi, Feminst Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund (Vancouver: UBC Press, 2004
66. V. Ramraj, M. Hor and K. Roach (eds), Global Anti-terrorism Law (Cambridge: Cambridge University Press, 2005); D. Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006
67. O. Gross and F. NíAoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006)228
68. L. Donohue, Counter-Terrorist Law and Emergency Powers in the United Kingdom 1922-2000 (Dublin: Irish Academic Press, 2001
69. J. McGuffin, Internment (Tralee: Anvil Books, 1973
70. J. Bowyer Bell, The Irish Troubles: A Generation of Violence 1967-1992 (Dublin: Gill and Macmillan, 1993)208
71. K. McEvoy, Paramilitary Imprisonment in Northern Ireland (Oxford: Oxford University Press,esp ch2001) 8
72. E. Mallie and P. Bishop, The Provisional IRA (London: Corgi, 1988)
73. P. Hillyard, 'Political and Social Dimensions of Emergency Law' in A. Jennings (ed), Justice under Fire: The Abuse of Civil Liberties in Northern Ireland (London: Pluto Press, 1990)
74. McGuffin, n 63 above
75. 'Trial by Tittle Tattle'Sunday Times 21 December 1973
76. See Re McElduff [] NI 1 and Kelly v Faulkner [1973] NI 311972
77. See eg Moore v Ministry of Defence et al unreported, Armagh County Court 10 February 1972; Smith v Ministry for Defence unreported December 1973; Sean Hughes v Ministry of Defence etc 17 October 1972 [NI] 25; O J Kelly v Ministry of Home Affairs 17 October 1972 [NI] 10; See further B. J. Narain, Public Law in Northern Ireland (Muckamore: Shanway Services, 1975
78. D. Lowry, 'Internment; Detention without Trial in Northern Ireland' (1976) 5 Human Rights 261,282
79. Lord Gardiner, Report of a Committee to Consider in the Context of Civil Liberties and Human Rights, Measures to Deal with Terrorism in Northern Ireland (London: HMSO, 1975) 44
80. L. Haijar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (Berkeley CA: University of California Press, 2005) 174-177
81. See eg Association for Legal Justice (ALJ), Association for Legal Justice Bulletin (Dublin: ALJ, 1971)
82. Interview with Northern Ireland barrister, 3 March 2003
83. As an editorial in one Dublin-based Nationalist paper outlined: 'It has been obvious that the British government has attempted to give the Commission hearings an air of legal respectability and so they do not hesitate to hand out lucrative fees for the prosecution and defence and for the British judges who sit as Commissioners. Northern Irish lawyers should seriously question whether or not their participation is bringing the profession into disrepute There are some solicitors who refuse to become involved in these hearings even though it troubles their conscience as to whether an appearance would be helpful to the accused. There are others who are only too glad to take whatever cases are going, but these should seriously question whether or not their appearances lend weight and authority to a procedure which, by substituting form for substance, makes a sad mockery of the noble concept of justice' (Irish Press 23 August 1974)
84. K. Boyle, T. Hadden and P. Hillyard, Law and the State: The Case of Northern Ireland (London: Martin Robertson, 1975)67
85. Lord Diplock, Report of the Commission to Consider Legal Procedures to Deal With Terrorist Activities in Northern Ireland (London: HMSO, 1972)1
86. Diplock, ibid paras 17, For a critique of this reasoning see S. Greer and A. White, Abolishing the Diplock Courts: The Case for Restoring Jury Trial to Scheduled Offences in Northern Ireland (London: Cobden Trust, 1986)35-37
87. Jackson and Doran, n 2 above, 31
88. M. Cunningham, British Government Policy in Northern Ireland, 1969-89 (Manchester: Manchester University Press, 1991) 70
89. J. Jackson, 'Many Years on in Northern Ireland: The Diplock Legacy' () 60 NILQ 213, 216-172009
90. K. Boyle, T. Hadden and P. Hillyard,Ten Years On in Northern Ireland:Amnesty International, Report of an Amnesty International Mission to Northern Ireland (London: Amnesty International, 1978); P. Taylor, Beating the Terrorists Interrogation in Omagh, Gough and Castlereagh (Harmondsworth: Penguin Books, 1980). The Legal Control of Political Violence (London: Cobden Trust, 1980)
91. See eg Committee on the Administration of Justice (CAJ), Allegations of Ill-Treatment in Castlereagh (Belfast: CAJ, 1991
92. Amnesty International, United Kingdom: Allegations of Ill-Treatment in Northern Ireland (London: Amnesty International, 1991
93. Helsinki Watch, Children in Northern Ireland: Abused by the Security Forces and Paramilitaries (Washington: Helsinki Watch, 1991
94. J. Jackson, M. Wolfe and K. Quinn, Legislating Against Silence: The Northern Ireland Experience (Belfast: Northern Ireland Office, 2000) and correspondence with the author
95. E. Compton, Report of the Enquiry into Allegations Against the Security Forces of Physical Brutality in Northern Ireland Arising Out of Events on 9th August 1971 (London: HMSO, 1971); Lord Parker, Report of a Committee of Privy Counsellors Appointed to Consider the Authorised Procedures for the Interrogation of Persons Suspected of Terrorism (London: HMSO, 1972); Diplock, n 79 above; Lord Shackleton, Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976 (London: HMSO, 1978); Earl Jellicoe, Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976 (London: HMSO, 1983)
96. Lord Gardiner, n 73 above; G. Baker, Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (London, HMSO, 1984)
97. J. Bennett, Report of the Committee of Enquiry into Police Interrogation Procedures in Northern Ireland (London: HMSO, 1979) 3. In his interviews with eleven barristers in Northern Ireland in 1980 Jorgensen argues that any such submission from barristers was viewed as impossible 'because of the range of political views inside the bar'. B. Jorgensen, 'Defending the Terrorists: Queen's Counsel before the Courts of Northern Ireland' (1982) 9 JLS 115, 121
98. P. J. McGrory, Law and the Constitution: Present Discontents: Emergency Legislation (Derry: Field Day Theatre, 1986). McGrory concluded 'emergency legislation is a product of political instability and injustice. Its effect has been to intensify both. It has many victims to its discredit; but its first victim is the law' (25). See also E. McDermott, 'Law and Disorder' in M. Farrell (ed), Twenty Years On (Dingle: Brandon, 1989)
99. R. Harvey, Diplock and the Assault on Civil Liberties: Time to Repeal Northern Ireland's Emergency Legislation (London: Haldane Society of Socialist Lawyers, 1981); D. Korff, The Diplock Courts in Northern Ireland: A Fair Trial (Utrecht: Netherlands Institute of Human Rights, 1983); K. Asmal, If Law is the Enemy: Human Rights in Northern Ireland: Britain's Responsibilities (London: Britain & Ireland Human Rights Project, 1990)
100. Workers Research Unit, Rough Justice: Bulletin No 10 (Belfast: Workers Research Unit, 1982)
101. Mr Nicholas Scott, Northern Ireland Junior Minister, HC Debates vol 73, 100, 1985. While Scott put the figure at 593 for 1982-1985, Greer argues that this is an underestimation as it did not take account of the number of supergrasses who retracted their evidence before their names became public. S. Greer, Supergrasses: A Study in Anti-terrorist Law Enforcement in Northern Ireland (Oxford: Oxford University Press, 1995) 57
102. In the first three significant cases, 88 per cent of the 64 defendants in the three trials were found guilty. See R v Graham and Others (1983) 7 NIJB; R v Donnelly () unreported judgement; R v Gibney 13 NIJB 2. These cases were popularly known by the names of the supergrasses around which they were built, ie Bennett, Black and McGrady1983
103. R v Robson and others (unreported) cited in Greer, n 92 above at 136
104. Interview with solicitor, 22 September Desmond Boal QC was a former Unionist member of the Stormont Parliament and one of the most experienced and highly regarded barristers to operate in the Diplock system2003
105. E. Grant, 'The use of Supergrass Evidence in Northern Ireland 1982-1985' () 135 NLJ 1125; McGrory, Although n 90 above and McDermott, n 90 above for useful critiques from senior practitioners1985
106. J. Jackson, 'The Use of Supergrasses as a Method of Prosecuting in Northern Ireland' in 10th Report of the Standing Advisory Commission on Human Rights; Report for 1983-84 (London: HMSO, 1985); S. Greer, 'Supergrasses and the Legal System in Northern Ireland and Great Britain' (1986) 102 Law Quarterly Review 198. It should be noted that other legal academics were strong supporters of the supergrass system, see eg E. Graham, 'A Vital Weapon in the Anti-terrorist Arsenal' () Fortnight 101983198
107. M. Bonnemarche, Preliminary Report of the Observer Mission Attending the Hearing on Appeal of the Case of the 22 Irish Nationalists (Brussels: International Association of Democratic Lawyers, 1986
108. Greer, n 93 above, 114
109. Livingstone also makes the telling point that another reason for the ultimate judicial unease with supergrass trials was that it was one area of anti-terrorist practices where there was no express parliamentary approval. See S. Livingstone, 'And Justice for All The Judiciary and the Legal Profession in Transition' in C. Harvey (ed), Human Rights, Equality and Democratic Renewal in Northern Ireland (Oxford: Hart Publishing, 2001)150
110. Interview 26 November 2009
111. Interview Northern Ireland solicitor, 21 March 2003
112. NIASL, Manifesto and Constitution (Belfast: NIASL, 1980); NIASL, Civil Liberties and Socialism in Northern Ireland (Belfast: NIASL, 1981); NIASL, Annual Review and Annual Report 1981/82 and 1982/3 (Belfast: NIASL, 1982, 1983). The 1982 Annual Report of the organisation notes that there was a total membership of 25. An undated press release from NIASL issued in autumn 1983 which notes an address by Lord Gifford also records the organization's efforts to assist in better mobilising the anti-supergrass campaign
113. Interview with Northern Ireland Solicitor, 27 May 2002. See also N. Shannon, Problem for the Socialist Lawyer and the Northern Ireland Association of Socialist Lawyers 1 January 1983, paper made available to the author2002
114. CAJ, The Administration of Justice in Northern Ireland: Proceedings of a Conference (Belfast: CAJ, 1981); CAJ, Emergency Laws in Northern Ireland: Conference Report (Belfast: CAJ, 1982
115. In 1998 CAJ was awarded the Council of Europe Human Rights Prize for its contribution to the peace process in Northern Ireland. By way of a declaration of interest, the author is a former Chairperson and Executive Committee member of CAJ
116. Interview with long term CAJ activist, 26 November 2009
117. J. Morison and P. Leith, The Barrister's World and the Nature of Law (Milton Keynes: Open University Press,Jackson and Doran, n 2 above at 83. See also 1992) 40
118. M. McConville, J. Hodgson, L. Bridges and A. Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Oxford University Press, 1994
119. J. Smith, 'The Black Bar Association and Civil Rights' (1981-82) 15 Creighton LR 651; E. Sheehy and S. MacIntyre, Calling for Change: Women, Law and the Legal Profession (Ottawa: University of Ottawa Press, 2006)
120. L. Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge, 2001) 7
121. J. Winter 'Thinking About Silence' in E. Ben-Ze'ev, R. Gionio and J. Winter (eds), Shadows of War: A Social History of Silence in the Twentieth Century (Cambridge: Cambridge University Press, 2010) 11
122. S. Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge: Polity, 2001)
123. Interview Northern Ireland barrister, 25 August 2005.
124. T. Halliday, 'Knowledge Mandates: Collective Influence by Scientific, Normative and Syncretic Professions' () 36 British Journal of Sociology 421, 4291985
125. McEvoy and Rebouché, n 22 above
126. J. O'Brien, Killing Finucane: Murder in Defence of the Realm (Dublin: Gill and Macmillan, 2005)
127. J. Stevens, Stevens Enquiry 3: Overview and Recommendations (2003) 11 at (last visited 28 January 2011); P. Cory, Cory Collusion Inquiry Report: Patrick Finucane (London: HMSO, 2004) 11
128. Amnesty International, United Kingdom: Human Rights Concerns (London: Amnesty International, 1991) 56; BIRW, Intimidation of Defence Lawyers in Northern Ireland Update (London: BIRW, 1992); LCHR, Human Rights and Legal Defence in Northern Ireland (New York: LCHR, 1993); LCHR, Beyond Collusion: The UK Security Forces and the Murder of Pat Finucane (New York, LCHR, 2003)
129. Hansard, House of Commons, Standing Committee B 17 January col 5081989
130. Stevens, n 117 above
131. An army agent supplied the intelligence which led to Mr Finucane's death and an RUC Special Branch agent supplied the principal weapon used and both claimed to have told the authorities of the planned assassination. Another RUC informer, Ken Barrett, pleaded guilty and was convicted of the actual murder in 2004. When these events were being investigated by Lord Stevens, his report referred to 'a deliberate act of arson when his Incident room was destroyed by fire' and 'widespread obstruction' of his enquiry by the RUC and Army. Stevens, n 119 above; Cory, n 119 above
132. Livingstone, n 101 above, 137
133. Lawyers Committee for Human Rights, n 120 above, 61
134. C. Paramwswamy, Report of the Special Rapporteur on the Independence of Judges and Lawyers, Report of a Mission to the United Kingdom (New York: United Nations Economic and Social Council, 1998) 12
135. 'Law Body Blocking Report on Finucane'Irish News 10 March 1999; 'NI Law Society Officers "Trying to Stop" Study of Murder Report'Irish Times 10 March 1999. The report in question was British Irish Rights Watch, Justice Delayed: Alleged State Collusion In The Murder Of Patrick Finucane And Others (London: British Irish Rights Watch, 1999)
136. Interview with Law Society representative, 13 December 2002
137. Interview with solicitor, 21 February 2003. The range of international voices which eventually joined such calls included Claire Palley (UK nominee to the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities); Peter Burns (UK Rapporteur for the UN Committee Against Torture); the UN Special Representative on Human Rights Defenders; Helsinki Watch (later renamed Human Rights Watch); Amnesty International; the International Federation of Human Rights; the International Commission of Jurists; the International Bar Association; the American Bar Association and the New York Bar Association
138. Interview with Mike Posner, Executive Director Lawyers Committee for Human Rights (now called Human Rights First) 14 June 2002. Mr Posner, who is now Assistant Secretary of State for Human Rights in the Obama administration, waived his offer of anonymity for this research
139. G. Finucane The Long Road to Truth: PJ McGrory Memorial Lecture (Belfast: Feile An Phobail, 2004)
140. Statement issued by 33 lawyers on 14 January 1998, 'Equal Protection Under the Law' reproduced in Amnesty International, Report on Intimidation of Defence Lawyers in Northern Ireland (London: Amnesty International, 1998)
141. 'Finucane Inquiry Backed By Bar Council'Irish News 19 February 1999
142. At the time of writing, a public inquiry into these allegations of collusion in the murder of Mrs Nelson is ongoing. See M. Mooreland, Chairman's Initiation Statement, Rosemary Nelson Public Inquiry, 19 April 2005 at (last visited 28 January 2011)
143. For example, in his 1998 report the UN Special Rapporteur on the Independence of Judges and Lawyers paid special attention to these death threats and, repeated in a range of press interviews that Mrs Nelson's life could be in particular danger
144. P. Cory, Collusion Inquiry Rosemary Nelson (London: HMSO, 2004
145. 'Law Body in Call for Talks with Flanagan'Irish News 17 March 1999
146. Many of those present argued that given the investigation into Mrs Nelson's murder had only been ongoing for two months, the call for an independent public inquiry was premature. Interview with solicitor, 28 June 2008
147. 'Law Society U-turn over Nelson Death'Irish News 12 May 1999
148. Ms Arlene Foster, now a Democratic Unionist Party Minister in the Northern Ireland Executive, quoted in 'Unionists Hit Out as Law Society Backs Probe; Solicitors Demand Murder Inquiries'Belfast Telegraph 12 May 1999
149. Catherine Dixon, President of the Law Society, quoted in 'NI Solicitors Overturn Council's Decision on Finucane Inquiry'Irish Times 12 May 1999
150. Interview with Law Society representative, 13 December 2002
151. In the 1971 Census (in which 15.6 per cent of lawyers did not give their religion) 27.9 per cent self-declared as Catholic, with the remaining 56.5 were Protestant. In the 1981 (in which 19.7 per cent did not give their religion) the percentage of Catholic lawyers had risen to 37.8. Figures reproduced in D. Greer, 'Access to Legal Education and the Legal Profession in Northern Ireland' in R. Dhavan, N. Kibble and W. Twining (eds), Access to Legal Education and the Legal Profession (London: Butterworths, 1989) 214. Morison and Fox note that since 1979-80 a majority of students enrolling in the Law School at Queen's University Belfast (which then produced the vast number of local practitioners) have been Catholic. See J. Morison and M. Fox, 'Lawyers in a Divided Society: Legal Culture and Legal Services in Northern Ireland' () 19 JLS 24, 1391992
152. Interview with solicitor, 25 November 2002
153. Interview with solicitor, 14 February 2002, Interview with solicitor, 28 June 2008
154. Interview with solicitor, 21 February 2003
155. The declaration of office was required in the following terms: 'I do declare that well and truly I will serve the Queen as one of Her Counsel learned in the law and truly counsel the Queen in Her matters, when I shall be called upon to do so, and duly and truly administer the Queen's process after the course of the law, and after my cunning. I will duly in convenient time speed such matters as I may lawfully do which any person shall have to do in the law against the Queen. And in all other respects I will be attendant to the Queen's matters when I be thereto'. Cited in Re Treacy's and another's Application for Judicial Review [] NILR 334 (Re Treacy)2000
156. McEvoy and White, n 35 above
157. Re Treacy n 147 above, 334
158. F. Elliot, Report to Consider All Aspects of the Appointment of Queen's Counsel in Northern Ireland (Belfast: Bar Council, 1997)
159. Ronald Weatherup QC, quoted in 'Barrister Row Revelation'Irish News 5 May 2000
160. 'Unionist Barristers Seek to Prevent Bar Council from Paying Catholic Barristers Legal Bill'Sunday Tribune 30 January 2000
161. Quoted in 'Bar Council Funds Barristers Case'Irish News 1 February 2000
162. Re Treacy n 147 above
163. The new Declaration stated 'I [name] do sincerely promise and declare that I will well and truly serve all whom I may lawfully be called upon to serve in the office of one of Her Majesty's Counsel learned in the law according to the best of my skill and understanding' (Northern Ireland Court Service Press Notice Friday 23 June , Queen's Counsel Ceremony Declaration is Changed: Bar-Council's Recommendation is to be Adopted)2000
164. As Philip Magee, instigator of the original challenge in , summed up in a strongly worded statement in 2000 in support of the Treacy/McDonald review. He suggested that the Declaration was 'in truth, the genteel equivalent of putting a picture of the Queen on a Catholic worker's machine .... The Declaration is seen by many barristers as being simply a political test of loyalty to embarrass and, if possible, to weed out the croppie with attitude.' Quoted in 'Lawyers Wait on Oath of Allegiance Ruling' (2000) Irish News, 20 December. The term 'croppy' is said to be a nickname given to the rebels during the 1798 rebellion because of their close-cropped hair. Subsequently, the term became synonymous with 'rebel', Nationalist or Catholic1997
165. eg. Interview with barrister, 15 November 2002
166. Interview with barrister, 14 November 2002
167. M. Ignatieff, Human Rights, Politics and Idolatry (Princeton NJ: Princeton University Press, 2001) 20; D. Kennedy, 'The International Human Rights Movement: Part of the Problem' () 15 Harvard Human Rights Journal 116; K. McEvoy, n 6 above2002
168. Interview with barrister, 15 December 2009
169. E. P. Thompson, The Making of the English Working Class (London: Victor Gollanz, 1963) 18
170. As Abel described, '.... most lawyers just want to earn a living and leave politics to others .... Like Rhett Butler, most lawyers frankly do not give a damn.' R. Abel, n 1 above 470
171. Halliday, Karpik and Feeley, n 17 above; R. Abel, 'Contested Legality in the United States after September 11' in T. Halliday, L. Karpik and M.Feeley (eds), Fighting for Political Freedom (Oxford: Hart Publishing, 2007)
172. D. Nelken, 'Using the Concept of Legal Culture' () 29 Australian Journal of the Philosophy of Law 1, 32004
173. R. Cotterell, 'The Concept of Legal Culture' in D. Nelken (ed), Comparing Legal Cultures (Aldershot: Dartmouth, 1997)
174. L. Friedman, The Legal System: A Social Science Perspective (New York: Russell Sage, 1975) 15; L. Friedman, 'Is there a Modern Legal Culture' (1994) 7 Ratio Juris 117; L. Friedman, 'Human Rights and Modern Legal Culture' in E. Ryden and B. K. Bundy (eds), Human Rights in the Pacific Rim: Imagining a New Critical Discourse (Taiwan: Fu Jen Catholic University Press, 2006)
175. Friedman () ibid 1551975
176. K. Klare, 'Legal Culture and Transformative Constitutionalism' (1998) 4 South African Journal on Human Rights 146
177. T. Eriksen, Small Places: An Introduction to Social and Cultural Anthropology (London: Pluto, 2001); F. Adler, Nations Not Obsessed with Crime (Littleton CO: F.B. Rothman, 1983); H. Gunnlaugsson and J. Galliher, Wayward Icelanders: Punishment, Boundary Maintenance, and the Creation of Crime (Madison: University of Wisconsin Press, 2001)
178. eg Interview with solicitor, 14 January 2003, interview with Solicitor, 28 June 2008
179. Commissioner for Judicial Appointments for Northern Ireland, Audit Report (2003) at (last visited 28 January 2011); D. Feenan Applications by Women for Silk and Judicial Office in Northern Ireland (Commissioner for Judicial Appointments for Northern Ireland, 2005) at (last visited 28 January 2011); and (last visited 28 January 2011). For example, Leith et al note that there are no female high court judges, and that women make up only 21% of all judicial office holders: P. Leith et al, Propensity to Apply for Judicial Office under the New Northern Ireland Judicial Appointments System (2008) at (last visited 28 January 2011)37
180. Interview barrister, 25 November 2003
181. For a discussion on the legal and political implications of applying the 'war' concept to Northern Ireland, see C. Campbell and I. Connolly, 'Making War on Terror Global Lessons from Northern Ireland' (2006) 69 The Modern Law Review 935
182. B. Anderson,Imagined Communities: For the classic account of the relationship between loyalty and the state,Reflections on the Origins and Spread of Nationalism (London: Verso, 2nd ed, 1991). For a discussion on the Northern Ireland variant see H. Patterson and E. Kauffman, Unionism and Orangeism Since 1945: The Decline of the Loyal Family (Manchester: Manchester University Press, 2007)
183. C. Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 3rd ed, 2000); M. Chanock, 'The Lawyers' Self: Sketches on Establishing a Professional Identity in South Africa 1900-1925' in R. McQueen and W. Pue (eds), Misplaced Traditions: British Lawyers, Colonial Peoples (Annandale: Federation Press, 1999); W. Pue, 'Cultural Projects and Structural Transformation in the Canadian Legal Profession' in Sugarman and Pue, n 10 above; A. Likhovski, Law and Identity in Mandate Palestine (Chapel Hill: University of North Carolina Press, 2006
184. M. Sharafi, 'A New History of Colonial Lawyering: Lihowski and Legal Identities' () 32 Law and Social Inquiry 10592007
185. S. Engle Merry, Colonizing Hawai'i: The Cultural Power of Law (Princeton, NJ: Princeton University Press, 2000)
186. S. Howe, Ireland and Empire: Colonial Legacies in Irish History and Culture (Oxford: Oxford University Press, 2000) esp ch 10, for a nuanced discussion. Interestingly Kotsonouris has argued that the British influence on legal culture in Ireland has not been limited to Northern Ireland. She makes the case that following partition in the South of Ireland, the Free State authorities to a large extent aped the British colonial legal structures and processes as part of establishing the credibility and legitimacy of the new nation state. M. Kotsonouris, Retreat from Revolution: The Dáil Courts 1920-1924 (Dublin: Irish Academic Press, 1994)
187. Interview with barrister, 23 June 2008. Criminal Justice Review Group, Review of the Criminal Justice System in Northern Ireland (Belfast: HMSO, 2000) 184. This was a civil service led review which included a number of independent advisors established under the Good Friday Agreement. It recommended no change to the arrangements for displaying the Royal Coat of Arms on the exterior of existing courthouses, but that the interior of the courts should be free from all symbols, and that the practice of declaring God Save the Queen should cease. It also recommended that the practice of flying the Union flag could continue in line with flag flying practices for other government buildings in Northern Ireland. By contrast, the Independent Commission on Policing chaired by Lord Patten went much further. It recommended that all police stations should be 'neutral working environments' which required that the Union flag not be flown, the changing of the name and badge of the Royal Ulster Constabulary and the removal of all portraits of the Queen from police stations. Independent Commission on Policing, The Report of the Independent Commission on Policing for Northern Ireland (Belfast: HMSO, 2000) 99
188. H. Bhabha, The Location of Culture (London: Routledge, 1994) 91
189. C. Wright Mills, The Sociological Imagination (Fortieth Anniversary Edition, New York: Oxford University Press, 2000) 36
190. W. Pue, 'British Masculinities, Canadian Lawyers: Canadian Legal Education 1900-1930' in McQueen and Pue, n 175 above, 83
191. M. Hunt, 'The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession' () 26JLS 86, 921999
192. Livingstone, n 101 above, 159-160
193. Interview with Northern Irish barrister, 2 August 2005
194. I. Zartman, Ripe for Resolution (New York: Oxford University Press, 1989); P. Coleman et al, 'Reconstructing Ripeness II: Models and Methods for Constructing Stakeholder Engagement Across Protracted Divides' (2008) 26 Conflict Resolution Quarterly 1, 43
195. Law Society, Response by the Law Society of Northern Ireland to Proposals by Sir Louis Blom-Cooper, Independent Inspector for the Holding Centres, For a Duty Solicitor Scheme for the Holding Centres in Northern Ireland (Belfast: Law Society of Northern Ireland, 2004). L. Blom Cooper, Fifth Annual Report of the Independent Commissioner for Holding Centres (Belfast: Independent Commission for Holding Centres, 1997). There may also have been a degree of self interest in the position of the Law Society. One newspaper article from the Belfast Telegraph, 16th March 1994, notes a comment from the Law Society suggesting that Blom Cooper's proposal could be '.... a cynical means of reducing the legal aid bill.'
196. Geertz, n 175 above, 184
197. G. Barzilai, 'The Ambivalent Language of Lawyers in Israel: Liberal Politics, Economic Liberalism, Silence and Dissent' in Halliday, n 17 above; D. Brinks, The Judicial Response to Police Violence in Latin America: Inequality and the Rule of Law (New York: Cambridge University Press, 2008)
198. Lawyers Committee for Human Rights, n 118 above
199. P. Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977)
200. M. Ignatieff, 'Articles of Faith' () 5 Index on Censorship 96, 1111996
201. Quoted in Dyzenhaus, n 11 above 26
202. A. Duffy, 'A Truth Commission for Northern Ireland' (2010) International Journal of Transitional Justice 4, 1, 26
203. K. McEvoy, The Trouble with Truth: Struggling with the Past in Northern Ireland (London: Routledge, 2011)
204. For example, drawing from successful experiences in the United States and South Africa, a major funder has recently established a Public Interest Litigation Support organisation in Northern Ireland designed to fund strategic litigation, promote pro-bono work, explore the barriers to public interest litigation and promote access to justice of those in need. Efforts to promote this as a local variant of 'cause-lawyering' can only be realised with a proper understanding of the historical context and legal culture explored herein. See (last visited 28 January 2011)
205. G. O'Donnell, 'Why the Rule of Law Matters' 3(2004) 15Journal of Democracy 4, 32