Special Powers Act

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Special Powers Act

The act, introduced in March 1922 and enacted in April, was initially intended as an emergency measure to deal with widespread political violence. The Northern Ireland parliament debate on its introduction (attended exclusively by unionists, since nationalist MPs were boycotting the new institution) reveals widespread belief that the British regime in Ireland had failed through weak and indecisive government. The rulers of the new statelet were determined to impress their enemies with the statelet's determination to survive.

The act endowed the Northern Ireland government with most of the powers granted to the imperial government under the 1914 Defence of the Realm Act (DORA) and the 1920 Restoration of Order in Ireland Act (ROIA), except for the right to create courts-martial. It allowed "the civil authority," defined as the minister of home affairs, to "take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order"; the minister could delegate this authority, in whole or in part, to any police officer. (One later critic alleged that in theory the act authorized the minister to delegate his powers to a single police constable, who could then with perfect legality intern the whole population of Northern Ireland, including the minister.) It created courts of summary jurisdiction (composed of resident magistrates without juries) to try offenses against it. Offenses were punishable by two years' imprisonment and/or a fine of £100, with confiscation of goods or articles "in respect of which the offence has been committed." The act also allowed offenders to be flogged, which had not been provided for in its DORA or ROIA prototypes.

Thirty-five regulations contained in a schedule to the act gave the minister extensive powers, including the right to declare curfews; to prohibit or restrict assemblies; to enter, close, and take possession of property; to compel persons to supply information; to arrest and detain without warrant; to make membership of certain organizations a criminal offense; and to prohibit the circulation of any newspaper. Some of these regulations derived from DORA and ROIA and their associated regulations; others were completely new. Offences under the act were defined in extremely broad terms, which allowed almost any action to be declared illegal; most notoriously, Section 2(4) stated, "If any person does any act of such a nature as to be calculated to be prejudicial to the preservation of the peace or maintenance of order in Northern Ireland and not specifically provided for in the regulations, he shall be deemed to be guilty of an offence against the regulations."

The minister was authorized to make further regulations for the preservation of the peace and maintenance of order, and to amend existing regulations; over 100 regulations were made during the act's existence. Regulations did not require prior approval from the Northern Ireland parliament and could not be amended or repealed by it, although a majority in either House could petition the lord lieutenant (later the governor of Northern Ireland) to annul a regulation within fourteen parliamentary days after the regulation was laid before that House. (No such petition was ever submitted.)

Regulation 23 was supplemented on 1 June 1922 to allow internment, and the minister's powers in this regard were progressively extended. Seven hundred thirty-two persons (mostly republicans) were interned in the period 1922–1924, and the regulation provided the basis for subsequent use of internment in 1938–1946, 1956–1961, and 1971–1973. Further amendments allowed the minister to impose restriction orders excluding persons from all or part of Northern Ireland. The enforcement of the act certainly contributed to the fall-off in violence from late 1922 (though this was also due to the outbreak of the Civil War in the Free State).

The act was initially to remain in force for one year. In November 1922 it was extended until 31 December 1923; thereafter it was extended annually until 1928, when it was renewed for five years. By this stage its rationale had shifted from restoring law and order to defending the state by suppressing the public expression of republican (and, to a lesser extent, communist) views; opposition to partition was equated with sedition. The act was rarely used against loyalists, though about twenty Protestant paramilitaries were interned and three were flogged in 1923. Loyalist publications and processions were never banned under the act, and its use to suppress nationalist processions and such activities as the flying of the tricolor were often justified in expressly communal and political terms.

In 1936 the British National Council for Civil Liberties issued a report criticizing the act and arguing that such powers were unnecessary in peacetime; the Northern Ireland government dismissed the report as unduly influenced by nationalists. Over ninety processions and meetings were banned under the act between 1922 and 1950 (after which the 1951 Public Order Act came into effect). In the period 1924–1971, 52 orders were issued banning over 140 publications.

The act was made permanent in 1933. In 1943 it was amended to increase penalties for offences under the act that might previously have been covered by the Treason-Felony Act (which required higher standards of evidence and, as a Westminster enactment, could not be streamlined by Stormont). The act was employed less frequently after World War II, partly because of the province's relative stability and partly because some of its functions were taken over by other legislation. However, it was used during the 1956–1962 IRA border campaign. In 1957 the powers given to the RUC under the act were extended by regulation to soldiers. (This regulation provided the legal basis for the British army's role in maintaining law and order from August 1969. In February 1972 the regulation was declared ultra vires by the courts on the grounds that the Northern Ireland parliament could not legislate for the army, whose control was reserved to the Westminster parliament; as a result, Westminster introduced retrospective legislation to legitimize the Army's actions.)

Abolition of the act was one of the principal demands of the civil-rights campaign of the late 1960s, and some of the act's provisions were employed against civil-rights demonstrations. The Special Powers Act was repealed in 1973, but many of its provisions survived in the 1973 Northern Ireland Emergency Powers Act and subsequent antiterrorist legislation.

Contemporary and subsequent criticism of the act centers on its selective implementation, its cession of legislative powers to the executive, its institutionalization of emergency provisions as everyday legislation, and its vague and far-reaching terms. Defenders of the act stressed the ongoing existence of an armed conspiracy against the state and pointed to the harsh emergency legislation considered necessary by the southern state (including widespread executions by summary courts-martial during the Civil War and the deployment in the 1930s and 1940s of military tribunals entitled to impose the death penalty). The controversies surrounding the Special Powers Act ultimately reflected the ethnic division within the statelet (making conflict more intractable than in the post-independence south) and the majority-rule government's equation of opposition with a threat to the state's existence.

In 1963 the future South African apartheid Prime Minster Johannes Verster told critics of his own emergency legislation that he would gladly exchange it for the Northern Ireland Special Powers Act (Bell 1993, p. 45).