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Emergency Law in Ireland 1922–1948

Emergency Law in Ireland 1922–1948
Seosamh Ó Longaigh
(Four Courts Press, €55)
ISBN 9781851829224

The last years of British government in Ireland, 1916–21, saw the use of extraordinary legislation and military courts on a scale unprecedented since the eighteenth century. Individual executions, such as that of Kevin Barry in November 1920, undermined the legitimacy of British rule as nothing else had done since the attempted imposition of conscription. But in 1922–3 the new Irish government introduced a martial law regime far more drastic, and used it to kill far more people, than the British had ever attempted during the War of Independence: there were 77 official executions between November 1922 and May 1923, and an indeterminate number of unofficial killings by National forces.
This bloody era provides the opening chapter of Ó Longaigh’s book. The outline of the story is well known to general history. This book, however, looks at events from the point of view of law, lawyers, civil servants, draftsmen and the government and its legal opponents. There was, at first, no legal framework whatever and no certainty that the government would be successful in the civil war. Cahir Davitt, the 27-year-old judge advocate-general of the Free State forces, prevented the execution of a civilian spy convicted by a military court in those early days by pointing out that shooting him would be murder in law, and might be prosecuted as such if the other side won.
Ó Longaigh captures very well the atmosphere of that desperate time, identifying the precise point in September 1922 at which large-scale executions were determined on as a policy, and chronicling the complex steps taken, at breakneck speed, to legitimate them. The civil war and its aftermath to 1927 naturally receive the most detailed attention. Legal and legislative developments in the years 1922–4 are particularly complex, because it was not until the latter year that the new government and court structures were established on a statutory basis, and in the earlier part of the period the legislative powers of the ‘provisional parliament’ were very restricted. Ó Longaigh discharges this complex task admirably. The reader, however, will require to be well grounded in the general history of the period in order to understand the pressure of external events on the legal processes. One such event was the IRA shooting of deputies Hales and Ó Máille on 6 December 1922, which led to the large-scale use of ‘military committees’ rather than military courts for the trial of captured republicans. Davitt disapproved of this, describing the committees as akin to ‘drumhead’ courts martial. Nonetheless, 64 of the 77 persons officially executed were tried before the committees. Perhaps surprisingly, they had a conviction rate of only 46 per cent. I missed from this chapter only a more elaborate account of the Sinn Féin courts that coexisted during the civil war with the military tribunals and the British courts, and of the Indemnity Act of 1923. Each topic, however, is arguably outside the scope of the work.
The longer period from 1928 to 1948 is also meticulously covered. Its latter part, 1937–48, saw the enactment of the constitutional and statutory basis of emergency provisions that continue into our own time, article 28.3.3 and article 38.3 of the Constitution and the Offences against the State Acts 1939 onwards. Ó Longaigh places these in the context of their time and correctly emphasises the vital role of civil servants such as Stephen Roche, P. P. O’Donoghue, J. J. Hearne and Maurice Moynihan. The adoption of the new constitution in 1937 necessitated a root-and-branch rethinking of the previous scheme of emergency legislation. The latter was by then largely based on article 2(A) of the Free State constitution, inserted in 1931, and a series of statutes such as the Treasonable Offences Act of 1925. The need wholly to replace these measures led to intense discussion at governmental and civil service level, about which the author gives much fascinating detail. He is especially revealing on the topic of the constant demands for new and more drastic powers by a small number of policemen and home affairs (justice) civil servants in the ’20s and early ’30s. For example, a departmental memorandum relating to the second reading of the post-civil war Public Safety (Emergency Powers) Bill suggested that certain prisoners be treated with ‘a flogging every week’. The Act did eventually provide for a single flogging for prisoners convicted of arson or armed robbery. The predictable relationship between notorious crime and the strengthening of emergency provisions is graphically illustrated in dealing with the spate of IRA murders in 1931 and the subsequent amendment to the Free State constitution.
The role of the courts throughout the period is well covered. In the 1922–3 period the courts upheld government actions, even though they were clearly open to criticism for lack of vires or legal power under the Treaty settlement. In November 1922 Erskine Childers, who was awaiting trial before a military court, had this point taken on his behalf. It was rejected by the same judge, O’Connor MR, who had accepted a superficially similar point the previous year, during the British regime. He held that ‘. . . independently of any statute the executive government is bound to protect the subjects of the state from aggression’.
As the writ of the government began to run over the country, the courts moved to supervise the forces of law. Ó Longaigh describes decrees made by the courts against the Gardaí for exceeding their powers in the 1920s, and later the superior courts’ assertion of the right of judicial review over the Constitution (Special Powers) Tribunal in the 1930s. It was a time when judicial respect for positive law was much greater, and for inherent human rights rather less, than it became after the enactment of the 1937 Constitution. But plans that the military tribunal created in 1931 would be ring-fenced from judicial review were firmly frustrated by the judges, as Ó Longaigh shows.
Ó Longaigh emphasises the very considerable amount of extraordinary legislation in his period—seven measures providing for internment and six in relation to special courts alone—and the seeming contradiction that despite this the state established itself as, and remained, a firmly democratic country. He cites the historian of the IRA, J. Bowyer-Bell, in support of the proposition that the restrictions of emergency legislation were seen throughout as bearing only on opponents of the state itself and irrelevant to society in general. This he sees as the fruit of a successful balancing of civil liberties and security concerns by successive governments over 22 years, when the penalties for error in either direction might have been condign.
This book is very well presented, with an index and numerous tables and, usefully, a table of legal cases relevant to emergency law decided in the period. The early part of the book draws extensively on the unpublished memoir of Cahir Davitt (1894–1986), a son of the Fenian and Land Leaguer Michael Davitt who went on to a distinguished judicial career, retiring in 1966 as President of the High Court. On each occasion it is quoted the document is illuminating, showing a considerable spirit of independence of the government. The case for its complete publication is a compelling one. This is an interesting and useful book whose author deserves a particular compliment for taking on a subject so full of legal technicality despite having, as far as I know, no legal training. The book does not suffer on this account.

Adrian Hardiman