Article in Justice of the Peace

168 JPN, 4 Sep 2004 694

Doc. No. 2004.020 JPN027A

The Real IRA Is Proscribed After All

FRANCIS BENNION*

Arguments indicating that the Real IRA is proscribed

The following are placed in order of relevance, rather than in numerical order.

316. The court seeks to avoid a construction that produces a futile or pointless result, since this is unlikely to have been intended by Parliament.

There is a maxim that Parliament does nothing in vain, a principle also expressed as lex nil frustra facit (the law does nothing in vain). It would be in vain to specify The Irish Republican Army if this phrase were held to have no meaning.

374. Where the legislator makes use of a meaningless term, the court must do its best to arrive at the meaning most likely to have been intended.

As the IRA as such had ceased to exist before the passing of the Terrorism Act 2000 the reference to it in Schedule 2 could be said to be meaningless, but the court must do its best to find a meaning.

289. Parliament intends that an enactment shall remedy a particular mischief. It is presumed therefore that Parliament intends the court, in construing the enactment, to endeavour to apply the remedy provided by it in such a way as to suppress that mischief.

The mischief here was the existence of terrorist organisations. The Real IRA is undoubtedly a terrorist organisation, and therefore within the scope of the mischief aimed at by the Act. However Parliament does not always legislate for the whole width of a given mischief.

319. It is the duty of a court to further the legislator’s aim of providing a remedy for the mischief against which the enactment is directed. Accordingly the court will prefer a construction which advances this object rather than one which attempts to find some way of circumventing it.

This states the courts’ desire to prevent evasion of an Act. It could be said to advance the object of the 2000 Act, and prevent evasion, to treat the Real IRA as included in Schedule 2.

303. Parliament is presumed to intend that in construing an Act the court, by advancing the remedy which is indicated by the words of the Act for the mischief being dealt with, and the implications arising from those words, should aim to further every aspect of the legislative purpose. A construction which promotes the remedy Parliament has provided to cure a particular mischief is now known as a purposive construction.

Purposive construction is very popular with the courts. It would arguably be a purposive construction of the 2000 Act to treat the Real IRA as a proscribed organisation.

198. It is a rule of law that the legislator intends the interpreter of an enactment to observe the maxim ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void); so that he must construe the enactment in such a way as to implement, rather than defeat, the legislative purpose.

This requires the court to find some meaning in the reference to the IRA in Schedule 2. The question is what should this meaning be?

377. The courts use as aids to interpretation specific linguistic canons of construction developed over the centuries to throw light on meaning generally, and not just in a legal context. These canons have the effect of elaborating the literal meaning of a word or phrase, usually by taking the elaborated meaning as having been implied by the author.

The question here is what elaborated meaning should be taken as having been implied? It can only be that the reference to the IRA was meant to refer to the organisations into which the IRA had split by 2000. Are these just the Official IRA and the Provisional IRA, or should the Real IRA also be taken as included?

287. It is presumed that the legislator intends the court to apply a construction which rectifies any error in the drafting of the enactment, where it is required in order to give effect to the legislator’s intention. This may be referred to as a rectifying construction.

It seems that it may have been a mistake not to specify the Real IRA in Schedule 2, because as we shall see it was the Government’s intention that they should be covered. 6

363. The starting point in statutory interpretation is to consider the ordinary meaning of the word or phrase in question, that is its proper and most known signification. If there is more than one ordinary meaning, the most common and well-established is preferred (other things being equal).

The NICA said that if it had been necessary to do so they would have held that the “Real” Irish Republican Army was the same name as “The Irish Republican Army” for the purposes of section 3(1) of the 2000 Act.7 They cited the dictum

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of Owen J that “The word ‘same’ has two meanings. One is ‘corresponding to’, but the other is ‘similar to’”. 8 However the latter is not “the most common and well-established” meaning.

208. The informed interpretation rule requires that, in the construction of an enactment, due attention should be paid to relevant aspects of the state of the law before the Act was passed, the history of its passing, and the events subsequent to its passing.

The NICA considered at some length the history of proscription in Northern Ireland.9 They pointed out that the 2000 Act goes wider than the previous Northern Ireland legislation in extending to the whole of the United Kingdom and covering all forms of terrorism, including international terrorism.10

217. In arriving at the legal meaning of an enactment which is ambiguous or obscure, or where its literal meaning leads to an absurdity, the court may have regard to any statement of a Minister, as set out in the Official Report of Debates (‘Hansard’) on the Bill for the Act.11

Adam Ingram MP, the Armed Forces Minister, said in Standing Committee during the passage of the Bill for the 2000 Act-

“ . . . the Provisional IRA is not listed because the Irish Republican Army covers the whole gambit. We have had the best legal advice on that and the Real IRA, Oglaigh na hEireann, as it calls itself—its use of the IRA name—is that that would be covered by the blanket name Irish Republican Army, although I cannot say what a court would decide”.12

This clearly indicates that it was the Government’s intention when drafting the Bill that the term “Irish Republican Army” in Schedule 2 should be taken to include the Real IRA.

continued . . .

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* Francis Bennion is a member of the Oxford University Law Faculty and a Research Associate, Oxford University Centre for Socio-Legal Studies.

6. See the reference below to SI section 217.

7. NICA judgement, para. [41].

8. See the Australian case of Kingsbury v Martin (1901) 1 SR (NSW) 272 at 278.

9. NICA judgment, paras. [4]-[6]. See below.

10. NICA judgment, paras. [8], [9].

11. This is a summary of section 217.

12. HC Standing Committee D, 25 January 2000.