The Irish Government’s demand for jointly run courts to handle Northern Ireland paramilitary trials in the 1980s was supported by leading Conservative figures, including foreign secretary Geoffrey Howe, the State papers reveal.
However, the controversial plan repeatedly pressed by Taoiseach Garret FitzGerald was turned down by prime minister Margaret Thatcher following visceral opposition from the Lord Chancellor, Lord Hailsham.
The issue was finally decided at a Cabinet meeting in 1987 where Hailsham railed against it in a performance described privately by Cabinet Secretary Robert Armstrong as “the whole battleship blazing”.
Dr FitzGerald had wanted three-strong courts in Northern Ireland, including a judge from the Republic, to handle terrorist cases because of long-standing concerns about the operation of non-jury, single-judge Diplock Courts.
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The creation of a jointly run court to handle such cases was strongly opposed by Northern Ireland’s Chief Justice, Lord Lowry, who saw the prospect of Dublin’s involvement as an unacceptable interference.
Lord Lowry’s “naked intrusion into the political domain” over the issue led him to threaten to quit “and to take other judges with him if it went through”, London Embassy diplomat Richard Ryan told Foreign Affairs headquarters in Iveagh House.
Previously, Michael Havers, then the United Kingdom’s attorney general, had told Ryan that Dublin should “forget about” about the proposal, even though he believed that Lowry was “too political” to hold the position he did.
The British government should force the House of Lords to accept it, Havers believed, though “the fuss” would create “such enormous further difficulties” because “Lowry is a straight Unionist, and he is playing a political card game”.
However, thoughts in the Department of Foreign Affairs returned to the idea in September 1987 when Charles J Haughey was back in power following Lord Hailsham’s departure from office, replaced as Lord Chancellor by Havers.
In mid-September 1987, Havers, just weeks before he had to stand down because of ill health, “allowed the idea of a joint court to be refloated on a totally informal basis and without any commitment” in a conversation with Ryan.
“Taking him at his word, if we can, (Havers) intends to take a private sounding from Tom King to see whether he would be up for it. We cannot presume anything, but we could perhaps hope that King would give the idea a serious hearing at least,” Ryan reported.
If the Northern Ireland Secretary offered the return of the proposal some support, then the Irish side could take the matter back to Douglas Hurd and Geoffrey Howe in the hope of getting “a serious hearing”.
“If the four of them felt that the idea was worth running with, then the conversion of the Prime Minister and the acquiescence of (the Attorney General) Patrick Mayhew would be the final obstacles,” Ryan contended.
If Dublin and London agreed, then it was possible that “the final obstacle would be Lowry and the Unionist judges”, Ryan went on, though he saw advantage in the resignation of Northern Ireland’s Chief Justice and other judges.
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Such an outcome would offer the Irish Government “a major opening”, Ryan went on, to increase “the number both of judges from the nationalist tradition and more neutral, or less political judges from the Unionist tradition”.
The creation of joint courts would “surely be seen by the nationalists in Northern Ireland as a singular triumph” and would have been seen as “a big prize” by the FitzGerald administration when it was in office.
“It would, to put it crudely, get the Republic’s foot through the door in the North in the single major area of the administration there which is by past performance a clique of reactionary Unionism, anti-Agreement, and, in part at least, anti-nationalist.
“It is, perhaps, the single major pillar of the Unionist structure which has not yet had its bluff called. On the contrary, Hailsham’s (past victory) was a triumph for the Unionist interest and, perhaps, Hailsham’s best day’s work,” Ryan argued.
