By Jamie Bryson
It seems prudent to respond to an article published in the Irish News during the week.
The article was written by Tom Kelly, who self-identifies himself on Twitter/X as a “media personality”. Whilst Mr Kelly may not be widely known as a figure of any significance, he is nevertheless someone who would be known on the fringes of the small bubble of political and media circles, given his long involvement in the background of NI politics.
There is no doubt Mr Kelly is a man of intelligence, experience and who is capable of expressing himself articulately in both his writing and orally.
That makes it all the more strange that, at times, Mr Kelly veers into snide, derisory comments seeking to personally demean others with whom he disagrees. This is regularly evident in the means by which he choses to describe me and others in grassroots unionism/loyalism, and there is more than a hint of an underlying bitterness verging on rage.
I deduce there is probably two reasons for this. The first being is that Mr Kelly is somewhat of a nationalist supremacist (this is simply the effect of 25 years of a system whereby unionists must give, and nationalists must get), as evidenced by the matters we will explore below; and secondly, Mr Kelly sees himself as part of the intelligentsia, or- as I put it- the latte-drinking liberal elite. This class of person, who are no longer denoted by financial status or background, but rather by the new-form of class system whereby those who hold particular political views are part of a socially-acceptable ‘upper class’ who (they think) know better than everyone else. When others disagree with them, this provokes a form of rage.
Brexit, which Mr Kelly led the NI campaign against, unleashed this rage in extraordinary ways. The liberal elite could not countenance that those who they see as the underclass, the little people, had disagreed with them and failed to pay homage to the learned wisdom of the self-appointed elite. This was generally described as Brexit derangement syndrome.
One could, of course, respond to Mr Kelly’s angry jibes by returning the serve in the same way, but that would be merely to sink to a level of obscuring important arguments of substance by childish personal attacks. Therefore, I leave such rage and pettiness to Mr Kelly.
Rather, I focus on the substance of his argument.
It revolves to a bare assertion that the PSNI have erred in daring to seek to pursue Colum Eastwood MP for the offence of taking part in an unnotifed public procession. Notably, Mr Kelly doesn’t suggest that Mr Eastwood did not engage in precisely such an activity, but rather makes the case that ‘confidence in policing’ requires that the PSNI take no action.
This is a really rather extraordinary argument being advanced, and gives a worrying insight into just how deeply nationalist supremacism has embedded itself even in the minds of self-perceived highly politicised and intelligent persons (as no doubt Mr Kelly sees himself).
His argument can really be sumamarised like this: if applying the law to nationalists in the same way it is applied to unionists is not to our (nationalism’s) liking, then the law must not be applied to nationalists, otherwise nationalists will have no confidence in policing.
The purported ‘justification’ for this incredible proposition which forms the centre-piece of Mr Kelly’s article is that Mr Eastwood was engaged for a legitimate cause, namely walking in support of the Bloody Sunday families.
That may be widely perceived by many people as a legitimate cause, perhaps some may even say legitimate enough to warrant the law turning a blind eye, but if we are to adopt an approach to the law which resolves to deciding whether it applies or not based on an assessment as to whether it has been broken in pursuit of a legitimate political cause, or not, then surely it isn’t hard to see how unsustainable the criminal justice system would become?
Fundamentally, who would decide whether a particular political cause warranted the disapplication of the law?
In my view the right of the Orange Order to walk the Crumlin Road and Drumcree, for example, is a legitimate cause. If I copy and pasted the substance of Mr Kelly’s article but simply substituted the reason for the procession to being Orangemen exercising their right to express their culture, would Mr Kelly still agree that the PSNI and PPS ought to disapply the law?
I venture to guess he would not. That is because in the mind of Mr Kelly a legitimate cause is what he says it is; and, the law should be applied only when he, and nationalists, think it should.
The Parading legislation is, they think, solely for deployment against unionists/loyalists and, occasionally to take the bad look of it, dissident republicans. It isn’t, so the narrative goes, for the new nationalist elite.
Mr Kelly also, in characteristically angry and childish prose, dismisses the complaint to the Parliamentary standards commissioner, not on the basis of the substance of the complaint (which, unsurprisingly, he does not engage with) but rather simply asserts it is unworthy of consideration as I was the maker of the complaint.
Of course, if the same complaint had been made by Mr Kelly, for example, then all of a sudden it would be a matter of the utmost importance. This, again, reflects the snobbish, elitist, supremacism which has infected even supposedly moderate nationalism.
Colum Eastwood (who, like Mr Kelly, is seemingly unable to ever make his points without childish personal jibes or making faces) seeks to be rather more subtle (but not by much) than Tom Kelly. Rather than simply going full frontal at the assertion the law shouldn’t apply to nationalists, Mr Eastwood (and his solicitor, also a suspect, Mr Sheils) suggests there is no ‘public interest’ in prosecuting.
The first thing to observe is they do not even pretend the evidential test is not met; they plainly took part in an unlawful procession, and neither of the exceptions in law (funerals or the Salvation Army) avail them.
Their argument is instead focused on the assertion that the public interest requires they ought to face no punishment for doing so.
This, again, is very odd. The public interest is not defined by whether nationalists (or anyone) think the reason for breaking the law was legitimate.
If the PPS were to apply the public interest on the basis that nationalists think the cause for the breach of the law was legitimate, and therefore there’s no public interest in applying the law, it isn’t difficult to see what’s coming next.
Perhaps the Loyal Orders, or just unionists/loyalists generally, will simply start ignoring the Public Processions Act 1998, and adopt the position of saying their parade was for a just and legitimate cause, therefore the public interest test isn’t met. That is the chaos the PPS could well invite.
Rather, the sensible approach may well be to recommend cautions to the offenders, which would of course require an acceptance of guilt. This would, in the circumstances, serve the public interest by applying the law to offenders, but do so in a delicate way which nevertheless marks the nationalist card and brings home the realisation that they are not above the law.
However, that still would likely raise eyebrows given many unionists/loyalists have received harsh penalties- up to and including suspended sentences- for precisely the same offence.
This issue is a seminal one for the PPS, and previously for the PSNI. To the PSNI’s credit, they applied the law.
But Tom Kelly is right about one thing, there is an issue of confidence in the criminal justice system: but it isn’t as he thinks. If the criminal justice system allows the law to be disapplied for the benefit of nationalists on the basis of the asserted ‘legitimate’ nature of their cause, then this will be as obvious and irrefutable answer as you will ever get to the question as to whether there is really a two tier policing and justice system.