Why are the leaders of loyalism not arrested? This question cropped up twice in Northern Ireland last week, relating to the past and the present.
Police Ombudsman Michael Maguire's report into the 1994 Loughinisland massacre identified an arms shipment linked to 70 murders. The RUC had prior intelligence of the shipment and seized much of it quickly but, despite praising "the majority of officers", Maguire could find no evidence that senior members of the organisations involved – the UVF, the UDA and the DUP-linked Ulster Resistance – were subject to any police investigation.
Also last week, the Fresh Start panel on ending paramilitarism presented its final report. Convened last year by secretary of state for Northern Ireland Theresa Villiers and backed by Sinn Féin and the DUP, it was expected to produce only peace process waffle. Instead, it damned the PSNI for entrenching lawlessness by “engaging” with paramilitary leaders when it should be arresting them – and it made clear this meant loyalism, as the IRA had disbanded and the dissidents were not being “peace processed”.
A common complaint of loyalist untouchability now extends across the decades and that creates a danger for the future. The widening definition of collusion has convinced more and more nationalists that Britain established and directed loyalism in its entirely throughout the Troubles, using it as a proxy and granting it impunity.
If loyalism has not gone away and still has impunity, is that not a British failure to decommission and disband – a perfidious pike in the thatch?
It should be stressed that neither Maguire nor the panel has alleged anything like this, nor found any sign of it. Protection of informants and a culture of appeasement are the faults they identify.
Nevertheless, belief creates its own reality and nationalist suspicions that loyalism remains in business are underscored every day.
This may be a double standard for republicans, who expect their own leaders to have impunity today and ignore how they enjoyed it in the past. But their political project worked, loyalism’s didn’t and the state must be held to a higher standard than humouring paramilitaries forever.
The police and intelligence services have plenty of off-the-record explanations for their conduct during the Troubles, yet bureaucratic inertia and weakness offer at least as many insights as posturing about “big boys’ rules”.
Informants were protected, even when involved in murder, as a handler’s success was more easily judged by running agents than by cashing them in. It was empire-building in the office politics sense.
Paramilitary leaders were protected because the security forces did not believe they could eradicate militant loyalism or republicanism. The state is a thin veneer on chaos at the best of times and could not possibly crush organisations with tens of thousands of committed supporters, locked in what was then seen as an intractable dispute. So leaderships were cultivated in the hope they could be managed.
Fast-forward two decades and the bulk of militant republicanism has eradicated itself. That leaves loyalism and a state still lacking the confidence to take it on. Loyalists returned to violence five years ago, having finally accepted their political project was dead. They replaced it with street disorder, turned on and off to extract cash, concessions and official kudos.
This continued throughout the tenure of former PSNI chief constable Matt Baggott, whose explanation for not arresting loyalist leaders was that he was upholding "the right to life" – a stance he maintained even when those leaders ordered murders. This showed the PSNI feared even greater violence if loyalism was provoked. Since 2014, Baggott's successor, George Hamilton, has stopped the rioting but leadership "engagement" continues.
Is the PSNI right to be afraid? A trope of tabloid reporting in Northern Ireland is that loyalists are despised by their own communities, hence their failure to sprout political wings. This may be true when they are preying on working-class Protestants. The PSNI has occasionally arrested loyalist leaders while de-escalating feuds, provoking only relief.
Loyalists can still mobilise entire neighbourhoods if they conjure up a republican threat. In 2013, in response to a dissident parade in central Belfast, main routes out of the loyalist north and east of the city were lined three deep for miles with people cheering their boys off to war. During the flag protests, loyalist leaders often seemed to be catching up with the anger on their streets.
However, if republicans kept their distance, there seems little doubt that a policing operation could put loyalists out of business. They are known criminals, usable evidence must exist on them, they have no political support and almost all of their neighbours would be glad to see the back of them.
So why is it not happening?