Legislating Hierarchies of Victimhood and Perpetrators
| Published date | 01 June 2016 |
| DOI | 10.1177/0964663915614887 |
| Date | 01 June 2016 |
| Author | Kevin Hearty |
| Subject Matter | Articles |
Article
Social & Legal Studies
2016, Vol. 25(3) 333–353
Legislating Hierarchies
ª The Author(s) 2015
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DOI: 10.1177/0964663915614887
Perpetrators: The Civil
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Service (Special
Advisers) Act (Northern
Ireland) 2013 and the
Meta-Conflict
Kevin Hearty
University of Warwick, UK
Abstract
This article interrogates the premise that the Civil Service (Special Advisers) Act
(Northern Ireland) 2013 (SPAD Act) serves victim interests in Northern Ireland. It
draws on theoretical literature from the fields of transitional justice and victimology as
well as empirical data relevant to the act, to critically evaluate the practical outworkings
of the SPAD Act as distinct from the politically charged rhetoric that accompanied its
initiation and passage. In doing so, the article contends that the SPAD Act moves political
disagreement over the issues of victimhood and wrongdoing in Northern Ireland onto a
formal legislative footing. The article critiques the terms ‘innocent victim’ and ‘justice’
within the confines of the SPAD Act debate and argues that the narrow and divisive
approach to these concepts has created both a post-conflict hierarchy of victimhood and
a hierarchy of perpetrators that sustains and fuels disagreement over the past in the
North of Ireland.
Keywords
Northern Ireland, political violence, state violence, transitional justice, victimhood
Corresponding author:
Kevin Hearty, Criminal Justice Centre, University of Warwick, Coventry CV4 7AL, UK.
Email: K.Hearty@warwick.ac.uk
334
Social & Legal Studies 25(3)
Introduction
In May 2011, it emerged that former Irish Republican Army (IRA) prisoner Mary McAr-
dle – convicted for the killing of Mary Travers in 1984 – had been appointed special
adviser (Spad) to Sinn Fein minister Caral Ni Chuilin. The appointment drew criticism
for its insensitivity to the Travers family who learnt of the appointment through media
reports. In the ensuing political fallout, Jim Allister of the Traditional Unionist Voice
(TUV) moved in October 2011 to table a Private Members Bill in the Northern Ireland
Assembly banning anyone sentenced to more than 5 years from Spad posts. Following
nearly 2 years of political wrangling, the Civil Service (Special Advisers) Act (Northern
Ireland) 2013 (SPAD Act) was passed in the Northern Ireland Assembly in June 2013
before being granted royal assent on 8 July 2013. Those with convictions contrary to the
SPAD Act had 3 weeks to activate an in-built appeals mechanism to an independent
panel or automatically lose their post within 2 months (Newsletter, 2013). Sinn Fein –
the only party practicably penalized – choreographed effected Spads into other positions.
Upon attainment of royal assent Allister declared that the SPAD Act would bring a ‘great
sense of justice . . . to innocent victims, who so often seem forgotten in a system where
victim makers were feted and promoted because they were victim makers’ (Belfast Tel-
egraph, 2013). Echoing this, Ann Travers (Mary’s sister) stated that it ‘will give victims
that bit of hope that their voices will start to be heard now, and that we can all progress to
a better, shared future’ (Belfast Telegraph, 2013). Political support for the act was not
universal. Sinn Fein unsuccessfully attempted to block its passage because it ‘set victim
against victim’ by reinforcing a ‘hierarchy of victimhood’ (Daithi McKay quoted in Bel-
fast Telegraph, 2013). Competing political discourses quickly mapped themselves onto
the meta-conflict landscape. The meta-conflict, McGarry and O’Leary (2006) argue, can
be best understood as continuing political disagreement over the causes and conse-
quences of conflict. It is conflict about the conflict that revolves around rhetorical, polit-
ical and historical debates on who started it, who suffered most and who is to blame for
its misery. The politics of the meta-conflict have become, as Olick (2007) asserted, ‘war
by other means’.
The McArdle fallout must be seen within the twin contexts of general misgivings
about Spads and the localized Northern Ireland context. Spads are temporary civil ser-
vants personally appointed by ministers to provide advice on policy. They are generally
maligned for their personal attachment to ministers – Ni Chuilin and McArdle were
incarcerated together – and their capacity to become unaccountable gatekeepers that
wield significant influence on policy (Yong, 2014b: 2). In addition to the general criti-
cism of what a Spad is, in Northern Ireland there is also the matter of who they are. In the
United Kingdom, Spads tend to be 30-something Russell Group university educated
politicos with previous political experience and ambitions of a career in elected office
(Yong, 2014a: 50). Sinn Fein Spads, however, have been drawn from a party member-
ship who gained their political experience and educational qualifications through con-
flict and during political imprisonment. Writing on peace building in Northern
Ireland, McGrattan (2014: 519) asserts that the SPAD Act is ‘fundamentally about polit-
ical patronage’ – speaking to the points above – and ‘favouring the rights and needs of
victims of violence over and above those of perpetrators’. Substantively this argument
Hearty
335
seems plausible. The genesis of the Act lies in a political appointment of a former com-
batant to a publicly funded position without consideration for the victims of that person.
The Act will indeed prevent this reoccurring. Contextually, however, it seems less cer-
tain, given that the SPAD Act conforms to the wider politicization of victimhood that
typifies the meta-conflict. The tension between the substance and context of such an
argument reflects what McEvoy and McConnachie (2012) term the ‘mismatch between
the rhetoric and reality of victim experiences in transitional justice’.
Drawing on that observation, this article challenges the premise that the SPAD Act
serves the interests of victims in Northern Ireland by arguing that it can, at best, benefit
only a selectively particularist group of victims by satisfying retributive interests
directed against a selectively particularist group of perpetrators. The article contends that
although couched in glib political rhetoric about victims, the act is in practice a divisive
provision that legislates the meta-conflict to the advantage of certain victims and the det-
riment of others. Theoretically, this critique is framed by existing sociolegal literature on
victimhood, transitional justice and Northern Ireland, whilst it has been empirically
drawn from media coverage of the SPAD Act debate and evidence given by various par-
ties before a governmental committee convened on the matter.
Politicizing the ‘Innocent Victim’
The meta-conflict is not a phenomenon unique to Northern Ireland. It has characterized
other transitions. Victimhood, with its inherent assertions of innocence and guilt,
becomes the perfect avenue through which assertions on the legitimacy of violence exer-
cised during the conflict can be made. The legal codification of victim definitions
entrenches exclusivist meta-conflict approaches by selectively apportioning blame or
exculpation through hierarchizing victims according to their victimizer (Garcia-
Godos, 2008). This reflects contestation over the ‘moral equivalence’ of violence
deemed illegitimate with that deemed legitimate. Debates on moral equivalence reflect
the political reality of the particular transition. In South Africa, following the collapse of
the Apartheid state, the liberation forces rejected moral equivalence with the excesses of
the state (Borer, 2003). In Peru, where the state ‘won’ the conflict, an official narrative
depicting the conflict not as an ‘internal armed conflict’ but as a result of Sendero Lumi-
noso ‘terrorism’ has seen meta-conflict rejection of moral equivalence enshrined into
victim legislation (Laplante, 2007). In the Basque Country victim, legislation also mir-
rors the Spanish states meta-conflict position on the causes of conflict that involves a
complex differentiation between post-Civil War state human rights violations and viola-
tions in Spanish counterterrorism strategies following the post-Francoist transition to
democracy (Landa, 2013). Legislating against moral equivalence becomes war by other
means via restrictively ascribing blame for suffering in accordance with meta-conflict
positions on the (il)legitimacy of certain violence.
In Northern Ireland, transition has been shaped by conflict ending in a ‘mutually hurt-
ing stalemate’ and by the continued absence of any process to ‘deal with the past’. The
legacy of the conflict continues to be politically contested by those effected by state vio-
lence and those effected by non-state – which although including loyalist violence usu-
ally means Irish republican violence in the meta-conflict lexicon – violence (Hearty,
336
Social & Legal Studies 25(3)
2014). Unionists, who have a political and communal affinity with the state and the secu-
rity forces, reject any moral equivalence between state and non-state violence (Lawther,
2014b). Unsurprisingly, this has shaped their SPAD Act discourse through the deliberate
prefixing of victim with the word ‘innocent’. This engenders an understanding of victim-
hood that is predicated on the blameless ‘ideal victim’ (Christie, 1986). Admittedly,
Mary Travers fits an ideal victim typology seamlessly, and she was a young female
teacher killed in a gun attack on her father (a magistrate) as she left a...
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