By Jamie Bryson
This week Belfast High Court will rule on an application by lawyers acting for Michael Stone seeking certification of an appeal to the Supreme Court. This follows last week’s decision by the Divisional Court, with Mr Justice McCloskey and Mr Justice Colton sitting, to rule that Michael Stone must remain in prison without parole until at least 2024.
It is important to understand the impugned decision. The challenge brought by the sister of one of the individuals killed at Milltown is focused on whether the time between a prisoner’s release under the terms of the Belfast Agreement until the revocation of their licence counts towards their stipulated tariff.
There was much social media confusion as some appeared to be focusing on the fact Mr Stone’s licence had been revoked as a result of committing a further offence at Stormont in 2007. There is no dispute over the revocation of his licence, nor the Stormont incident. He is been tried, convicted and sentenced for that offence. He has served that sentence. As a consequence of that offending his life licence was revoked and Mr Justice Morgan previously ruled that he must serve his full 30 year tariff.
The dispute centres on whether the time between Michael Stone’s release under the terms of the Belfast Agreement until the revocation of his licence counts towards his 30 year tariff, or whether that period does not count and as such the full tariff must be physically served in custody.
The Department of Justice has consistently dealt with the matter by counting the time from release until licence revocation as coming off the stipulated tariff, and released a number of persons on this basis. If the Divisional Court judgement stands then such persons that have been released early are technically liable to serve the outstanding balance on their tariff. It is not clear whether there would be any legal mechanism to revoke such licences in circumstances that the Department had released the prisoners in error; however life licenses are liable to be revoked at any time for the remainder of the individual’s life, so it is theoretically possible such an outcome may yet transpire.
This is an issue that potentially all life sentence prisoners released under the terms of the Belfast Agreement- loyalist and republican- could face. It is for this reason that the family taking the challenge appeared to be acting without political support and the news of Mr Stone’s further detention passed without comment from Sinn Fein or republican legacy activist groups.
Mr Justice McCloskey himself stated that the court was operating in a political void and trying to interpret Parliament’s intent. For those of us with a keen interest in constitutional law it will be noted that the Divisional Court has applied a narrow interpretation to the relevant 98 Act, rather than the broad definition applied by the House of Lords when they labelled the Northern Ireland Act 1998 a constitutional statute in the case of Robinson.
There is no statutory power from which the Divisional Court’s decision derives. It is a matter of the Judiciary trying to interpret a gap in the law. It is quite literally legislation from the bench and it appears such an interpretation has been applied more due to Mr Stone’s notoriety rather than there being a solid legislative basis for the judgement.
Lord Diplock said “it cannot be too strongly emphasised that the British constitution, through largely unwritten, is firmly based upon separation of powers; Parliament makes laws, the judiciary interpret them. When parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.”
In such circumstances as has arisen in the Stone case, it is bemusing as to why those who have consistently held themselves up as the guardians of the Belfast Agreement have not been raising the matter publicly and highlighting the importance of the Supreme Court bringing some final clarity to the question of how the sentencing for those released under the Belfast Agreement must be interpreted.
There has been no support for Michael Stone from unionist politicians. Contrast this with how nationalist politicians continuously go to bat for republican prisoners on matters of principle. Loyalists like Michael Stone have been left to rot. You do not have to like Michael Stone, you do not have to condone his actions and nor do you have to be a cheerleader for loyalist prisoners to recognise that there is a clear imbalance in how loyalists and republicans are dealt with by the system.
There hasn’t even been a great deal of support or campaigning for Michael Stone from within the loyalist community; perhaps a result of division, personality differences or apathy towards those who have been left behind.
I spoke at length recently with a loyalist ex-prisoner that was in the Crumlin Road only yards away from the radiator that exploded in 1991, killing two loyalist prisoners and seriously wounding many others. As he recounted the events of that day, he did not say that in the moments after the bomb they divided up into UVF, UDA and Red Hand Commando. They did not decide which of their fellow loyalist prisoners they would help or provide first aid for depending on whether they liked them or whether they were from the same loyalist organisation. In those moments they were all simply loyalists.
Similarly I watched a documentary recently about the loyalist band in the Maze prison in 1990. It was a period of time I never experienced, and therefore could never accurately reflect, however one didn’t have to have experienced it to witness prominent loyalist faces from UVF, UDA and Red Hand Commando all marching side by side celebrating their culture in their own act of defiance. The band wasn’t divided up by loyalist grouping, but rather it was simply made up of loyalists.
Michael Stone is a loyalist who has been left behind and is under attack; you do not have to like him, condone his actions or endorse the section of loyalism from which he comes. Regardless of your views on those matters he is a loyalist, and working from that core point he needs and deserves support.