Legal action seeking to compel the Secretary of State to declare loyalist ceasefires over has no basis in law

The proposed legal action to force the Secretary of State to declare loyalist ceasefires over and suspend the licenses of ex loyalist prisoners is little more than a political stunt dressed up in a pre-action Protocol template.

Legal action seeking to compel the Secretary of State to declare loyalist ceasefires over has no basis in law

By Jamie Bryson

Last week it was announced that an unnamed individual was to bring legal action against the Secretary of State if he refused to declare loyalist ceasefires over, and further suspend the licences of all those released under the Belfast Agreement.

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A solicitor for her legal firm, McIvor Farrell, said: “Loyalist paramilitary organisations cannot claim to be maintaining a complete and unequivocal ceasefire in order to secure the benefit of the Good Friday Agreement by way of early release from prison whilst at the same time withdrawing support for that very same agreement and suggesting that there may be a return to violence unless the protocol is removed.

“There is either the rule of law or there is not. There is either a complete and unequivocal ceasefire or there is not. If there is not, then we say that you should no longer enjoy the benefits of the Good Friday Agreement in terms of early release from prison.

“The statements of the LCC undermine the commitment to pursue political goals by peaceful means and it is now incumbent upon the Secretary of State to exercise his powers under the NI (Sentences) Act 1998 on foot of those developments.”

Notwithstanding the plainly nonsensical and unmeritorious nature of the stunt, it is worth briefly illuminating the legally baseless nature of the assertions contained within the pre-action letter.

Firstly, those on licence cannot simply have their licences revoked because of the apparent actions of a group to which they were once affiliated. That would be an absurd and ludicrous situation whereby a citizen would not be bound by the consequences of his or her own actions, but rather by the actions of others over whom he or she has no control. Far from upholding the rule of law, in accordance with the lofty pronouncements of the solicitor behind the letter, it would undermine one of the law’s most basic principles.

Furthermore, as is often the case, the letter entirely misrepresents- either deliberately or in error- the Belfast Agreement. There is nothing in the release conditions of any prisoner which binds them to support a political agreement. A prisoner on licence is free to be anti-agreement if he or she so wishes. The notion that the continued freedom of prisoners released on licence would be predicated upon not only support for peace, but further to that a requirement to support a particular political agreement, is arrant nonsense.

The criteria for release of prisoners is set out within Section 3 of the Northern Ireland (Sentences) Act 1998. It is trite to point out that nowhere is a prisoner required to either have supported in advance of release, or continue to support upon release, the Belfast Agreement, or indeed any other political agreement.

In short, if a former loyalist prisoner wishes to pronounce to the world that they oppose the Belfast Agreement, then there is absolutely nothing in any licence conditions or law which would in anyway prohibit this entirely free political choice.

The confusion littered throughout the pre-action letter appears to be that the author confuses ‘peace’ with the ‘process’ (the Belfast Agreement). One can be entirely supportive of peace but be simultaneously venomously opposed to the process in the form of the Agreement. To argue that support for one necessitates support for the other would effectively be to enforce support for a political agreement on the basis that if you oppose it then peace will be at risk. That provides a violent veto over democracy and freedom of expression. It is not only immoral, but would entirely offend Article 10 of the European Convention which has effect in domestic law by virtue of the Human Rights Act 1998.

There is further is the bold claim that there is a “legal obligation” on the Secretary of State to specify the UVF, UDA and Red Hand Commando. Notably there is no credible or arguable reference to the apparent source of this ‘obligation’ to specify the groups.

It is worth therefore pointing out that by the pre-action letter’s own admission, it is a statement of fact that such groups are not currently specified. Accordingly, it follows that the requirement relied upon for the demand that loyalist prisoners have their licence suspended- namely support for a specified organisation- could not possibly be satisfied. This exposes the wholly circular and illogical nature of the letter’s demands.

There is only an obligation on the Secretary of State to specify a proscribed organisation if the two stage criteria set out within Section 3 (8) of the NI (Sentences) Act 1998 is met, namely that an organisation is:

(a) concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and

(b )has not established or is not maintaining a complete and unequivocal ceasefire.

I am unclear about how any rational person could seriously submit that the UVF, UDA or RHC is engaged in terrorism, or is promoting or encouraging it and has not established or is not maintaining a complete an unequivocal ceasefire. A breach of ceasefire would require a terrorist act to take place; it can’t merely be deduced from supposition or a subjective analysis of what may happen in the future.

In any event, neither the UVF, UDA or RHC have issued any statement to the effect suggested in the relevant letter. In fact, the letter is firstly from the Loyalist Communities Council (an entirely legal group) and further plainly stated that those represented by the letter were “determined that unionist opposition to the Protocol should be peaceful and democratic”. Hardly a call to arms.

The reported pre action legal letter contains not only an absence of basic common sense, but is replete with errors of law. It entirely misrepresents the Belfast Agreement and the Northern Ireland (Sentences) Act 1998 and has more than the ring of a political stunt dressed up in a pre-action Protocol template.





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