Under the UK’s main counter-terrorism legislation, the Terrorism Act 2000, it is an offence to arrange, assist or attend a meeting with knowledge that it will be addressed by a member of a proscribed organisation.
This is a serious offence, punishable by up to 14 years in jail. The maximum sentence was raised from 10 years in 2021, so it is supposedly becoming more serious.
Yet scarcely a week goes by in Northern Ireland when this law is not apparently broken by civic leaders, public officials, elected representatives and police officers as they pursue what is delicately termed “community engagement” or “paramilitary transition”.
While some of these meetings are furtive, others will be reported as routine news. Some meetings will be condemned but others will be praised as courageous, or at worst as a regrettable necessity. Almost none will be described as a crime because that would criminalise peace-processing itself, along with all the great and the good, and the not-so-good, who participate.
Ironically, the Terrorism Act was passed in the wake of the Belfast Agreement to create consistent law across the UK. It was believed the end of the Troubles should mean the end of emergency laws that applied only to Northern Ireland. Instead, the UK has acquired counter-terrorism laws that are uniquely ignored in Northern Ireland because the authorities consider enforcement impossible or unwise.
As the illegality of peace-processing is too awful to contemplate, it has taken a lesser absurdity to bring the inconsistency into focus. Kneecap member Liam Óg Ó hAnnaidh has been charged by the Metropolitan Police for allegedly holding up a Hizbullah flag during a performance in London. The specific offence under the Terrorism Act is displaying an item that arouses reasonable suspicion of supporting a proscribed organisation.
The contrast with flag-festooned Northern Ireland is absurd. The PSNI has made just 13 arrests for the same offence in the past 24 years, despite the charge also covering paramilitary-linked clothing and publication of images.
Many people have immediately asked why this law is applied differently on either side of the Irish Sea. A question so naive is rarely sincere. The PSNI cannot play flag whack-a-mole around thousands of lamp-posts, putting its officers in danger to little or no end.
A strong case can be made for taking a stand against egregious breaches of the law, such as flying paramilitary flags beside mixed housing, but using a catch-all terrorism offence may not be the best approach. It might only highlight inconsistency, as the law would still be unenforced everywhere else.
Many of those complaining about the charge against Kneecap are republicans comparing it to official indulgence of the Orange marching season or of loyalist paramilitarism. Not everyone seems to appreciate the Terrorism Act also criminalises showing support for the Provisional IRA, potentially including most forms of commemoration. Amendments to the Act in 2006 outlawed “glorification” of terrorism, “whether in the past, in the future or generally”, where this is intended to encourage support for terrorism today.
The realistic route to consistency is to admit a single UK-wide approach has been prematurely applied to Northern Ireland
Republicans do not accept this relates to them because loyalist paramilitaries remain active while the IRA has “gone away”. That is not quite how the law sees it, however: all groups are equally proscribed.
Complaints of one-sided treatment may often be insincere, simplistic or partisan, but that only underscores the corrosive effect of inconsistent application of the law.
One way to resolve this would be to de-proscribe the Provisional IRA. Unlike Ireland, the UK bases its terrorism laws around a list of banned organisations. There is a statutory process to request removal from the list. A loyalist group attempted this unsuccessfully in 2017 and lawyers in London are seeking the same for Hamas; among their arguments is a comparison of Hamas to Sinn Féin.
Any hint of legalising the Provisional IRA would be enormously contentious, to an extent that could prove counterproductive for political stability. Although de-proscription appears unfeasible for the time being, it is a genuine mystery why the prospect has not been suggested by republicanism. Perhaps acknowledging the IRA’s continued existence is too awkward, or seeking British permission for its existence is intolerable.
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The realistic route to consistency is to admit a single UK-wide approach has been prematurely applied to Northern Ireland. The region still requires special treatment, although this is a positive opportunity to craft laws and approaches to the law that reflect present circumstances and help the move away from paramilitarism.
That might involve recognising steps towards lawfulness rather than the binary nature of the banned list. Unenforceable offences could be narrowed down to achievable goals – removal of all murals glorifying violence, for example.
During the Troubles, counter-terrorism legislation was enacted as temporary and had to be renewed every year. Parts of contemporary law may need to be temporarily suspended until Northern Ireland is ready for them.
