It's legalised internment - but welcome across Ireland

Three decades of restrictive legislation have failed to crush the paramilitary groups

IN ANY civilised country the idea of a defendant being sent to jail simply on the say-so of a police officer would ordinarily be greeted with astonishment, grave concern and sustained outcry. Centuries of legal theory have been built on the principle that laws should not simply be instruments of the state but must also protect the rights of the individual: that individuals should be regarded as innocent until proven guilty.

The new laws being readied for Ireland north and south appear to contain the extraordinary provision that individuals will henceforth be treated as guilty until declared innocent. There will be a trial but the evidence may take the form of assertion rather the meticulous building of a case. On one reading this is close to legalised internment.

The Irish have a reputation for being agin the law, and certainly many thousands from both the republican and loyalist traditions have broken it on numerous occasions over the years. Yet the new measures were yesterday producing not an outcry but a widespread welcome, indeed a historically broad welcome throughout these islands.

All sides in Ireland cherry-pick the law. Martin McGuinness of Sinn Fein complained yesterday of harshness in the new measures, but had nothing to say on the question of the IRA's continuing punishment beatings, one of which last month resulted in a man's death.

The representatives of Unionism always favour ever more numerous and more stringent laws, though they generally envisage them being used against republicans. The recent Drumcree confrontation saw tens of thousands of acts of loyalist law-breaking which went uncondemned by most Unionist politicians, and indeed by most Protestant clergymen.

It is among Irish nationalists and among republicans in particular that reactions become even more complex. Purist republicans have a pretty straightforward view, which is that Britain has no right to pass any laws at all in Ireland.

But many Catholics and nationalists, while accepting British laws, have found much fault with their operation. The Prevention of Terrorism Act, hurried through parliament after the 1974 Birmingham pub bombings, has been deeply unpopular. In recent years the PTA has been shown to have contributed to major miscarriages of justice such as the cases of the Birmingham 6, Guildford 4 and others.

The nationalist contention is that Britain too has cherry-picked the law. The authorities insist, for example, that soldiers guilty of wrong- doing are treated exactly the same as other citizens. Yet the conviction rate of soldiers prosecuted for the most serious offences has been vanishingly small.

Individual laws and indeed the whole system of justice in Northern Ireland have clearly been the cause of deep divisions of opinion. There is scope for many learned legal and political treatises on the effect of emergency laws during the troubles.

One argument is that many legal measures, such as internment without trial in the 1970s, were counter-productive and brought the law into disrepute. Others will contend that the huge swathes of emergency legislation placed on the statute book greatly assisted in combating and containing terrorism.

It has to be said, though, that the political movement and progress of recent years would seem to have been brought about through enlightened politics rather than restrictive legislation. Three decades of all that law has not crushed the paramilitary groups: they are still out there. The counter-argument, that it was the strength of the law which led Sinn Fein and others to sue for peace, will be debated by historians for decades.

But the terms of debate on new legislation have today changed utterly: the old pattern of London bringing in more laws while Dublin frets that they may do more harm than good has gone. This is because of two things: the Good Friday agreement and the Omagh bombing.

The new laws actually go against the logic of the agreement, which set up a review of emergency legislation with a view to relaxing it. But Omagh changed that mindset. It achieved exactly the opposite of what the bombers intended as it brought the two governments closer together.

There could hardly be a stronger symbol shared determination than the simultaneous recall of the two parliaments which will take place on Wednesday next. That double event will be unprecedented, yet in another sense the process is a familiar one in Irish history.

What happens is that those using violence against the system are given a chance to enter it. If they do, they eventually become conventional politicians, sometimes going on to become prime minister or president.

Those who refuse this offer and stick to their guns are left politically exposed and susceptible to all the system can throw at them. What follows is a sometimes merciless mopping-up, with more than a few dissenters executed, sometimes by former comrades.

This is the position of the Real IRA: friendless, bereft of sympathy, opponents of the Good Friday agreement. They are rebels without a cause and practically all of Ireland wants them locked up.

Over all the years Sinn Fein and the IRA were never defeated by all that emergency legislation, largely because more than 100,000 voters in Northern Ireland regarded them not as terrorists but as political activists who used violence. The logic of the move into politics by the mainstream republicans is that they would come to condone the suppression of republican die-hards. But there is much unease in the republican camp, for all this is happening too soon for Sinn Fein.

It wanted less emergency legislation, not more; it will worry that the new law might be used against some of its own people; it is watching the Royal Ulster Constabulary, which it wants disbanded, embedding itself in the new system.But their reservations, and those of people who worry about human rights, are being swept away in the wave of revulsion which followed the Omagh bombing.

The new laws will go through, and defendants charged with Real IRA membership will be summarily dispatched to prison. In reality they are not going to be jailed merely on the word of a police officer, but by the will of two parliaments which represent the demand of their people that there should be no more Omaghs.