Over the past 20 years, the democracies of Western Europe have faced a major dilemma. Amid the constant threat of terrorist action by individuals or groups who have infiltrated our society, to what extent would we be justified in suspending or adapting some of the normal judicial safeguards which protect the freedom of the individual? To what extent is preventive detention a possibility? Before detaining someone, should one need to prove in the courts that that person is already guilty of a crime, as opposed to relying on secret service reports as to that person’s potentiality for committing a terrorist outrage?
In this situation, some people have pointed to a previous occasion when this country was faced by an internal enemy: the Second World War, when normal judicial procedures were suspended, and many people incarcerated without trial. They make the point that ours is just as much a wartime situation, with a powerful external enemy having allies within our society, who constitute an ever-present danger.
Another apparent parallel to wartime Britain has now emerged. When the external enemy appears to have been materially defeated, what do you do with those British nationals who, having gone abroad to support that enemy, now wish to return to this country? The case of Shamima Begum has brought this problem dramatically before us; but she is merely one among many IS supporters who will now be wishing to return. In 1945-6, our courts had to deal with a number of cases of returning collaborators with the enemy; and, though the question of potential continuing danger did not on the whole arise at that time, there were various factors which led to serious inconsistencies in the sentencing of individual cases.
It may be worth examining more closely the experience of wartime and post-war Britain, to see if it gives us any lessons for our present situation.
The British government had been aware of the problem from the start. On September 1, 1939, two days before the outbreak of war, it produced Defence Regulation 18B, which stated that the Home Secretary could order the detention of any person suspected to be “of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or to the defence of the realm, or in the preparation or instigation of such acts”.
After the outbreak of war, however, little was done to put this into effect, as far as British nationals were concerned. What little action that was taken came against foreign nationals already known to have been politically active in support of their home regimes. Movements like Sir Oswald Mosley’s British Union (BU, formerly the “British Union of Fascists”) were allowed to continue much as before, despite their continuing anti-war, anti-Semitic and pro-Nazi propaganda and their efforts to undermine the war effort. For example, they persuaded their young members of call-up age to cause chaos by registering as conscientious objectors, and then declaring at the Tribunal that they were not opposed to war in principle, but opposed to war for the Jews against Nazi Germany. The “phoney war” period, from September 1939 to May 1940, saw a great deal of continued activity by many figures on the British pro-Nazi Right, much of it secret (though monitored by MI5 and Special Branch), but much, also, taking place publicly, in the light of day. This relative impunity is in part explained by the attitude of the Home Secretary, Sir John Anderson, whose instinct was to protect citizens’ rights as far as possible.
In May 1940, however, all suddenly changed, in what seems to have been something of a panic. On the evening of May 22, the Privy Council produced a new, far more stringent version of Defence Regulation 18B, DR18B (1A), which was put into effect the next day without having either been made public or scrutinised by the House of Commons. It looked not to people’s actions in the past, but to what the Secret Services believed to be their potentiality for action in the future. The Home Secretary could order the detention of anyone he believed to be a member of an organisation which was either subject to foreign influence or control, or of which the persons in control “have or have had associations with persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war”.
Among the reasons for this panic was the widespread belief, during the German invasion of the Low Countries and France, that the defeat of Holland had been prepared by the activities of a pro-German “Fifth Column” within that country. These fears appeared at first to have been justified as far as Britain was concerned when, on May 20, it had been discovered that Tyler Kent, a cipher clerk at the American Embassy, had been passing confidential documents, including the Churchill-Roosevelt correspondence, to Captain Archibald Ramsay’s Right Club (a “secret” anti-Semitic and pro-Nazi organisation), which they passed on to Germany via the neutral Italian embassy. All this, however, also served to fulfil the wishes of those who had long been advocating action against Mosley and British Union.
From May 23 onwards, numerous arrests were made. From the start, there appears to have been a great deal of uncertainty about the scope and nature of this round-up. When it came to German and Italian nationals, the idea seems to have been to hoover up as many as possible. In the process, many anti-fascist exiles and many Jewish refugees were included, as the “spy scare” meant that even they were suspect. The British arrests were far more haphazard. On the one hand, it became clear that the long-awaited dissolution of Mosley’s British Union was taking place; yet even here the choice of those who were to be interned cut out many of the more prominent figures (though Mosley himself was arrested). On the other hand, though a handful of prominent figures from other movements were detained over the next few months — Captain Ramsay of the Right Club, John Beckett and Ben Greene from the British People’s Party, Admiral Sir Barry Domvile from The Link — the other members of those bodies, who were in some respects more worthy of attention than the ordinary members of British Union, were on the whole spared. It is surprising, for example, that so few Right Club members were detained, despite the fuss over the Tyler Kent case and despite the fact that the authorities were in possession of the full membership list of this organisation (and MI5 had been observing key figures over the past few months). The vast majority of the British detainees were, in the event, rank-and-file fascists.
The most surprising feature of these arrests is the relative immunity of the aristocracy. Within the British Union, for example, most area leaders and chairmen were immediately arrested, but two important ones, Lady Pearson and Viscountess Downe, were treated leniently. Lady Pearson, chairman of the Sandwich branch and BU candidate for Folkestone, was initially arrested, but her brother, Lord Croft, Churchill’s Under-Secretary of State for War, when he heard of it, soundly berated the Home Secretary for what he described as an “outrageous act” and demanded her release — which duly took place. Viscountess Downe, a close friend of Queen Mary, a leading light in her local association, and BU parliamentary candidate for North Norfolk, was not arrested — but she was “ashamed” she said to a friend, “of being free” when so many of her subordinates were suffering for the cause. She secretly arranged for questions about her to be raised in the House of Commons. This caused a furore. When asked about her, MI5 produced the lame excuse that they “considered that the internment of a person of Lady Downe’s social standing might give the public a wrong impression of the importance of British Union”.
This weakness in the authorities’ criteria for internment was not the only failing of the system — but in the case of other aristocrats, who could be described as far more dangerous than these local BU officials, it seriously undermined any confidence in the system. The Duke of Bedford, for example, who as head of the British People’s Party remained free when his associates John Beckett and Ben Greene were arrested, continued throughout the war to proclaim, in print and in the House of Lords, that Hitler was a virtuous man whose destruction had been “ordained by the financiers of the City and Wall Street, using the politicians as their puppets”, and that Britain, led on by Churchill the warmonger, was responsible for the war, which was being waged to defend Jewish interests. For most of the latter part of the war, too, Bedford was encouraging and funding various neo-fascist, pro-Nazi movements that had re-emerged in Britain. His detention was considered on various occasions, but never carried out. Bedford himself, hearing of this, felt that Churchill must have acted on the belief that “the imprisonment of peers would have created in America so deep an impression of the anti-war movement in Britain that the task of dragging the USA into the war would have been made much less easy”.
This may have been the reason for other perplexing cases. The British aristocracy was, indeed, riddled with pro-Nazism. Lord Sempill, a prominent member of several pro-Nazi movements (including The Link, the Right Club, and the Nordic League), was also found to have disquieting contacts with the Japanese Embassy. Though he was strongly believed to have conveyed secret military documents to the Japanese, he was not arrested. Lord Ronald Graham, a younger son of the Duke of Montrose, equally escaped retribution, despite his close involvement with Right Club subversive activities right through the “phoney war” period. Lord Lymington (later Earl of Portsmouth), a leading member of the back-to-the-land school, was also unscathed, even though he had played a part in pro-Nazi activities pre-May 1940, and though he continued to attend meetings of subversive movements during the war. There were innumerable other cases.
How, however, did the system work for those who were actually interned? The total number of “fascists” interned has been calculated as 753 — a small number compared with the 28,000 enemy aliens detained. At first, ordinary prisons were used, but the numbers got out of hand, and a series of camps were organised, often consisting of a number of streets surrounded by barbed wire. Eventually, because of fear of what might happen on the mainland in the event of invasion, the main camps were set up on the Isle of Man.
The British Union rank-and-file members, who made up the majority of British detainees, reacted in a way the authorities had not expected. Powerful personalities set about organising them on fascist lines, determined to keep the “sacred flame” alive. For example, Charlie Watts, former organiser of the BU London Cab Drivers Group, formed a highly successful body called the “Hail Mosley and Fuck ’Em All Association”. These activities, and the camaraderie they inspired, caused the BU members to become, as MI5 glumly commented, “more set and hardened in their convictions than when they were detained”.
Gradually the government appears to have become convinced that the internment experiment had not been a success, and that the scale of numbers of those detained under the first panic-stricken measures had been excessive. This is shown by the speed with which the detainees began to be released. The majority of the BU detainees were released within the first year. By the end of 1941 only 200 BU members were still in detention, and this fell to 130 in spring 1942. Various prominent figures, including Mosley himself and Captain Ramsay, did remain until 1943 in continued detention, but this appears to have been in part because of the hostile public reception that could be expected if they were released (as was shown when Mosley was freed). Only a few of the more extreme of the rank-and-file, including A.T.V. Hepburn-Ruston (father of Audrey Hepburn), remained in custody until the end of the war.
The authorities also seem to have realised that any likelihood of these people being a danger in the event of a German invasion had receded, along with the invasion threat itself, by early 1941. The only danger was their purveying of anti-war and pro-German propaganda; but, where that might have had some effect on the general public in the fluid state of public opinion in mid-1940, it was destined to fall upon stony ground thereafter, as the British public became, after the advent of Churchill and the events of 1940, thoroughly committed to the defence of the nation. A number of right-wing subversive movements, favourable to Germany, did grow up in the later part of the war, and a number of ex-detainees were involved in them. But, though MI5 and Special Branch kept a close eye on them, and infiltrated their activities, they took no action in relation to these bodies, obviously believing them to be of no importance.
Would some of these people have actively collaborated with the Germans, in the event of an invasion? The example of France makes us think that that was indeed a possibility. In order to guard against that threat, however, the British Government had by now devised a far more effective weapon than the scatter-gun technique of mass preventive detention. For every area of the nation it drew up a “Suspect List” of the people to be immediately arrested in the event of an invasion. Many ex-18B detainees were on these lists, alongside other people who had meanwhile given rise to suspicion.
It is now worth looking at the problem that faced the British government after the end of the war — the fate of those British citizens who had left for Germany to further the Axis cause. A large number of these had been employed as broadcasters for the Nazi propaganda machine.
This activity has above all been associated, in the popular mind, with Willliam Joyce (“Lord Haw-Haw”), but there were a large number of other British people involved. Their motives were extremely varied. On the one hand, there were a number of committed pre-war fascists whose political views led them to espouse the Nazi cause: they included not only Joyce, but also the virulent pro-Nazi Margaret Bothamley. At the other extreme, there were people who ended up in Nazi employment almost by accident — either because they had been unable to get out of Germany at the outbreak of war and needed money, or because they saw it as a way of getting out of a prisoner of war camp or a recruitment camp. There were many gradations between these two extremes.
Many of these people, of all kinds, were brought to trial on their return to Britain. William Joyce was condemned to death, even though he was able to provide fairly compelling evidence that he was in fact an American citizen. John Amery, son of the Conservative politician Leo Amery, was also condemned to death, not just because of broadcasting, but mainly because he had tried to set up a “Legion of St George” of British soldiers who would fight for Germany against Soviet Russia.
The other sentences were very mixed. Margaret Bothamley, who had played a leading part in The Link and the Right Club before the war, and who was described by her fellow-broadcasters as “very firm in her Nazi ideals” and “an ardent Nazi to the end”, filled her answers to her interrogation by Military Intelligence with praise for Nazism, and a stressing of the part played by the Jews in the war propaganda fed to the British public. Yet when she came to trial the defence succeeded in depicting her as a very muddled and completely innocuous old lady. Rebecca West, observing the trial, was completely taken in by this; but Major Spooner, who had interrogated her, had found her “intelligent, acute and wily”, and “anything but a frail and silly old woman”. In the event, she was given a very mild sentence of 12 months’ imprisonment “in the first division”, the most lenient of regimes. This seems ludicrous, in comparison to the four years’ penal servitude given to Henry William Wicks, an obsessive conspiracy theorist who believed that the British government, and his former solicitor Leslie Burgin, now the Minister of Supply, had framed him in a libel case in the Thirties. Even MI5, in its evidence for the prosecution, had tried to excuse him, saying that he was “not a pro-German or a pro-Nazi, who committed deliberate treason in order to assist the German victory”, and that he was “obsessed with grievances and probably, to some extent at least, mentally unbalanced”.
The discrepancies in sentencing were enormous. At the trial of Leonard Banning, a former BU member, the judge, while accepting that he “did not desire to betray his country”, sentenced him to ten years’ penal servitude. Walter Purdy of the Royal Navy, who broadcast merely in order to get out of his POW camp, was tried for treason and sentenced to death (though this was commuted to life imprisonment). One the other hand, other broadcasters who had regularly produced pro-Nazi and anti-British propaganda were never even brought before the courts. There were innumerable such discrepancies, and one gets the impression that the British authorities, and the courts, were completely out of their depth.
The greatest discrepancy of them all was William Joyce. His actions were to the same extent treasonous as those of a number of the other broadcasters. Yet he was tried for treason (which involved the death penalty) while almost all the others (apart from Walter Purdy) were tried on the lesser charge of having acted “with intent to asssist the enemy”. One is left to think that Joyce’s notoriety, and the fact that “Lord Haw-Haw” had become a household name throughout the war, were what led to his exceptional treatment; and that it was a concern to make a public example, and to go along with public opinion, that had caused the extreme efforts made by the prosecution.
Do these events, which took place over 70 years ago, have any lessons for us in our present situation? One is tempted to say that we can learn above all from the errors involved. In the case of preventive detention, it is above all the errors in the carrying out of the policy which strike us. Yet on the other hand, the government had shown that in a wartime situation of crisis, the public were prepared to accept such an infringement of civil liberties. And it could be said, in support of such a policy in the present, that this country is now in far more immediate internal danger than it actually was in 1940, in that many of the individuals concerned may be intending to undertake major acts of terrorism. There does at first, on this basis, seem a case for what some have proposed, namely legislation on the lines of DR18B.
When one looks at it more closely, however, the problems experienced seem (as in 1940) almost insurmountable. How many suspects would one need to round up? What would be the precise criteria? Where could you put them all? And, if they were detained together, how would one avoid the inevitable cross-fertilisation of extremist ideas (as in the case of BU detainees)? Furthermore, eventually one would almost certainly be releasing into the general public individuals who had an even greater sense of grievance than before, and many of whom might be previously innocent people who had now been converted to a cause. One is forced to admit, on the basis of the 1940 experience, that such a policy could well be disastrous.
The question of how to deal with the returning members of IS is even more problematic. In 1945-6 it was just a question of punishment for past deeds. In our situation, the main problem is that, unlike Nazi Germany, Islamic terrorism has only been defeated on the ground and continues to be a danger. Many of those returning can pose a threat to the state and to the general public. Far too much of the rhetoric about the matter is vengeful, however; and there is a danger that a knee-jerk reaction to individual cases may be merely pandering to public opinion, as some of the actions in 1945 were. The confusion over the criteria and the procedures, as in 1945, could lead to grave injustices. Yet clearly action does have to be taken in the present, and these cases have to be resolved. Government will need to make the superhuman (for it) effort to plan properly, to devise an overriding, coherent policy which is not based on immediate reactions to individual cases, and to carry that policy out without the kind of administrative chaos which took place in 1940 and 1945. What a utopian aim! Sadly, in this case reality is more difficult.