Dealing with the ‘Enemy at Home’ during the Two World Wars 45

Chapter 2
Dealing with the ‘Enemy at Home’ during the Two World Wars

Introduction

The threat of invasion by another State is the gravest threat to a country’s national security. It raises spectres of the occupation of the country by foreign forces, the death, imprisonment or enforced exile of its leaders, the imprisonment of members of its armed forces or their removal to the other state as forced labourers, and the alteration of its system of government and its cherished liberties, the more so if the would-be invader is a totalitarian state or a persecutor of other religions. The experiences of the Nazi occupation of most of Western Europe, and fear of the spread of Soviet Communist totalitarianism were key factors in the establishment of the Council of Europe in 1949 and its human rights instrument, the European Convention on Human Rights (ECHR), embodying a right of derogation without which States would have been unlikely, given their recent experiences, to have signed up to this novel protective instrument and its enforcement machinery.1

This country, of course, has not been invaded since the Norman Conquest in 1066 or, on one view of the ‘Glorious Revolution’, since that Revolution’s 1688 transfer of the Crown from the Roman Catholic Stuart monarch, James II, to his Dutch, Protestant son-in-law, William of Orange, and his wife, James’s daughter, Queen Mary.2 It has, however, been under severe threat of invasion several times. Protestant, Elizabethan England was threatened by Catholic Spain and its Armada in 1588; Great Britain was in danger of invasion from Revolutionary France and its Emperor Napoleon at the end of the eighteenth and beginning of the nineteenth centuries; the United Kingdom feared invasion by Kaiser Wilhelm’s Germany in the First World War; and invasion by Hitler’s Nazi Germany in the Second World War was in 1940 a very real threat. The post-1945 Cold War threatened Soviet invasion and possible nuclear attack.

While the intensity and nature of each of those threats differed, one common theme has been the taking by the Government of the day of exceptional measures to deal with those perceived as the ‘enemy within’, whether nationals of the threatening State or British subjects thought to be sympathetic to the foreign power. Thus, the Elizabethan government several times interned without trial Jesuits, priests and other English Catholics when Spanish invasion loomed.3 The Revolutionary and Napoleonic Wars with France (1793–1815), and the fear of the spread of French revolutionary ideas to the lower classes, saw the Government impose statutory restrictions on immigration by aliens. It also resorted to a form of internment (detention) without trial. The Habeas Corpus Act was suspended several times, removing the central remedy for securing release from unlawful detention. As Thompson recorded, few were detained without trial; government wanted to use suspension to make louder the bark but not sharpen the bite of treason laws.4 In the decade before the First World War, spy scare stories and fear of German invasion secured the enactment of a draconian Official Secrets Act 1911.5 The War itself saw the State concentrate immense power in the Executive and deal with the ‘enemy within’, in part through criminal prosecution, but more often through detention without trial and powers of deportation.6 The security elements of the modern immigration system have their origins in the aliens restriction legislation of 1914.7 The Second World War followed much the same pattern in terms of responses to supposed ‘Fifth Columnists’.8 The Cold War saw threats met by criminal prosecutions, national security deportations and the expulsion of diplomats thought to be spies. But plans were in place for the introduction of internment.9

Another common theme as regards invasion threats has been the accompanying danger from elements in another country within these islands, particularly Ireland, with nationalists very much seeing Britain’s difficulty as Ireland’s opportunity; witness rebellions in 1798 and 1916 and, during the Second World War, the IRA seeking and obtaining a degree of Nazi support for its irredentist campaign. James II won Catholic support in Ireland to try to regain his throne, besieged Londonderry (contributing to the ‘siege’ mentality gripping Ulster Protestants which bedevilled attempts to deal with the Irish and Northern Ireland questions) but was roundly defeated at the Battle of the Boyne in 1690. And twice in the 1715 and 1745 Jacobite rebellions, the Highland Scots supported the Stuart ‘Pretender’ against the Hanoverian monarchs of the fledgling Great Britain. In 1745 Bonnie Prince Charlie’s army ‘invaded’ as far south as Derby, and London saw itself threatened before the Scots withdrew to Scotland and defeat at Culloden in 1746.10

This chapter focuses squarely on the use by Government in both World Wars of powers of detention without trial (internment) and restrictions on residence and movement within the country as modes of dealing with those perceived as the ‘enemy within’. Modalities of deportation and expulsion of aliens as another way of dealing with the threat, mentioned above, are instead dealt with in chapter 4 on undesirable ‘aliens’, as better befits an examination of the beginnings of the United Kingdom’s modern, statutory immigration system. While in historical terms, a case can be made for regarding the two Wars as a single conflict, this chapter divides consideration as between the First and Second World Wars, given the rather different legal bases for the similar powers used and as the best structure to appreciate Government learning with respect to its plans for 1939 from mistakes made in 1914–18. Each section looks first at internment of aliens and then at internment of security threats/sympathizers, many of whom were British subjects and thus irremovable by deportation powers and not possible to intern under prerogative powers. There then follows consideration of the means open to those deprived of their liberty, without being proven guilty of any criminal offence, both in terms of the administrative schemes of challenge (representations to advisory bodies) and challenge in the ordinary courts using habeas corpus applications and applications for judicial review to try to secure release and invalidate the decision depriving them of liberty. It will be seen that extensive powers were available to Government both under the prerogative and under skeleton, ‘parent’ Acts of Parliament equipping Government with immense power to make further rules subject to a very much reduced parliamentary control. Traditional rights of recourse to the courts were not removed, but the courts, led by the House of Lords, despite often ringing rhetoric, failed to protect personal liberty, leaving the Government to get on with things very much free of judicial restraint. Both periods represent the low ebb of judicial review and, arguably, an abdication of the judicial function, which happily no longer extends into judicial review generally and does not form part of judicial scrutiny of the Executive in the security sphere in the HRA era.

The First World War

The United Kingdom went to war with Germany and its ally, the Austro-Hungarian Empire, on 4 August 1914, in part because of German aggression towards and invasion of neutral Belgium in its attempt to execute the Schlieffen plan and knock France out of the war before the Russian armed forces (Russia was the ally of France and the United Kingdom) could mass on Germany’s eastern border. The precise causes of and catalysts for this cataclysm, in Europe a war of attrition and blockade, have been minutely analysed elsewhere.11 So too the carnage in terms of almost one million United Kingdom and Commonwealth soldiers, sailors and airmen killed and some one and a half million wounded on the Western Front, the Gallipoli Peninsula, the Middle East and East Africa.12 While the causes are beyond the scope of this book, both the carnage and the sacrifices (a degree of casualties from airborne bombing, rationing, etc.) borne on the Home Front in this four-year war (1914–1918) have much more bearing in the sense that they may help explain the demands for, and the acceptance as warranted of, the draconian and illiberal powers here examined by the public, parliamentarians and judges.13 As Simpson noted, while the most draconian power of internment without trial of persons (including British subjects) of ‘hostile origins or associations’, had critics, particularly with respect to its use against Irish nationalists after the Easter Rising of 1916,14 the power ‘was not under any real political threat during the period of hostilities, and remarkably few individual detainees attracted any public comment’.15 Writing in April 1918, Scrutton LJ noted the impact on the legal profession in terms of casualties, that judges, ‘fighting by their sons’ with offspring fighting and dying in the front line, were experiencing, particularly on circuit, the impact of war on manpower and food supplies, and were assisting the war effort in terms of chairing inquiries and internment advisory panels.16 Going to war, and the bitterness and hatred towards Germans and those allied with them, the ‘Germanophobia’ which fed the climate of acceptance of and, indeed, demand for, draconian powers,17 was in part due to what in hindsight can now be seen as a series of misapprehensions on both sides as to the other’s intentions in what was characterized from 1903 onwards as ‘as state of mutual fear’ as both engaged in a naval arms race. The United Kingdom feared that the purpose of the growing German navy was the invasion of the United Kingdom. Germany feared that, like the Danish navy destroyed at Copenhagen by Admiral Nelson in 1800 during the Napoleonic wars, the British navy would destroy the German fleet when peacefully at anchor.18 Germany also feared encirclement by the United Kingdom, France and Russia. In the United Kingdom, the climate was fuelled by a wave of invasion and German spy stories both in fiction and what would now be called the ‘tabloid’ press (then the ‘yellow’ press).19 Once war broke out, further fuel was added to the fire with reports of atrocities by German troops in Belgium,20 heavy British losses on the Western Front and German deployment of poison gas as a weapon of war. The Governmental reaction to the pre-war spy fever was an investigation in March 1909 by a subcommittee of the Committee for Imperial Defence. In July 1909, it made a number of crucial recommendations relevant to this book.21 The first, to strengthen ‘the whole apparatus’ of the country’s intelligence system by the establishment of a regular secret service, was quickly acted on.22 It would operate abroad and at home. Abroad, ‘it would act as a shield for naval and military attachés as they bought and collected information from foreigners willing to sell it’.23 At home, it worked alongside the Special Branch of the Metropolitan Police, no longer tied to the Irish question, to tackle spies and saboteurs.24 The police had the necessary coercive powers of arrest, search and seizure not possessed by the new secret service. The second recommendation, a systematic set of controls on monitoring and limiting the freedom of movement of aliens, had, in terms of legislation, to await the outbreak of war, and the administrative establishment of an unofficial register of aliens kept secret, given traditionally liberal attitudes towards political asylum.25 That legislation is considered in chapter 4. The third recommendation was for what would now be called ‘target-hardening’, requiring action to be taken to defend vulnerable installations, land and buildings against sabotage. The fourth recommended up-to-date legislation with respect to spies and saboteurs. The product, enhancing the powers of the police, the scope of the criminal law and easing the task of the prosecution, was the over-inclusive Official Secrets Act 1911, rushed through Parliament during the Agadir crisis when war between France and Germany was feared.26 The subcommittee also considered the special powers that would be needed if war broke out. The military favoured enactment of a specific and detailed statutory code. The result was a trio of Defence of the Realm Acts in 1914 (DORA),27 empowering a raft of delegated legislation, but as late as June 1914 there was preference for relying, despite attendant uncertainties, on the prerogative and martial law.28 DORA, and associated regulations, dealt with many and most things, including restrictions on movement and internment of those of hostile origins and associations. The internment of enemy aliens, however, which began on the outbreak of war, was founded on the prerogative, and will be examined first.

Prerogative powers of internment were supplemented by restrictions on movement and residence found in the Orders in Council made pursuant to the Aliens Restriction Act 1914, ‘emergency’ legislation, explicitly supplementing prerogative powers in this field, ‘which essentially gave the Secretary of State a free hand to regulate aliens as he saw fit’ for the duration of the war, and passed through Parliament on 4 August 1914, before DORA was introduced.29 Both internment and restriction of enemy aliens were, of course, aided by the creation in secret in 1910 of the unofficial register of aliens referred to earlier. By July 1913, the register covered 28,830 aliens out of a census estimated alien population of just under a quarter of a million (167,762 being male).30 Of those on the register 11,100 were German or Austrian,31 but the estimated resident male population indicated some 32,400 Germans and 9,400 Austro-Hungarians.32 In 1914 there was an estimated population of some 70,000 enemy aliens over the age of 14.33 By the outbreak of war some 30,000 aliens and others regarded as potential dangers were on the register, with standardized letters on each index card denoting degrees of friendliness (for example, ‘AA’: Absolutely Anglicized, undoubtedly friendly) or hostility (for example, BB: ‘Bad Boche’, undoubtedly hostile).34 Further ‘Special Intelligence Black list’ letters might be added (for example, ‘G’: ‘Guarded, suspected, or under special surveillance or not yet classified; ‘K’: Kaiser’s man, enemy officer or official or ex-officer or ex-official).35 Under the Aliens restriction legislation, enemy aliens had to register with the police and could not live in ‘prohibited areas’ (close to ports, docks or military installations) without permission from the police.36

The internment and restriction powers were aimed at spies, other enemy agents or saboteurs. But, initially at least, the preferred policy appears to have been prosecution where possible, whether before courts martial or the ordinary courts. On 4 August 1914, 22 supposed spies were arrested, but only one brought to trial. During the war 35 spies were caught and 22 convicted. Fourteen were executed, the last in April 1916.37 The last espionage trial of the war was in August 1917.38 It seems clear that internment and restriction were not merely preventative but embraced cases where there was insufficient evidence to use the criminal prosecution route to removal from the community. The General Staff at the outbreak of war had wanted internment of all Germans, but even the smaller numbers interned caused logistical problems of where to put them in a country hosting Belgian refugees in Alexandra Palace and preparing to receive German prisoners of war, such that some 3,000 internees were released over the winter of 1914–15.39 Following the sinking by a German submarine of the Cunard passenger liner Lusitania off the south of Ireland on 7 May 1915,40 the Government six days later reluctantly decided on the general internment of all enemy aliens, in part for their own safety given the high level of anti-alien feeling:41

Henceforth the government adopted (though it did not always enforce) the principle that all enemy aliens should be interned unless they could prove themselves harmless. Ultimately at least 32,000 (mostly men of military age) were interned, at least 20,000 (mostly women, children and non-combatant men) repatriated, and the remainder subjected to numerous restrictions.42

‘More notable’ alien businessmen with the right connections escaped internment.43 The Royal Family and other prominent families ‘anglicized’ their Germanic surnames.44 Just over a hundred internees died of typhus in the 500 or so internment camps45 which were established in a bewildering variety of places: two in the Isle of Man (some 23,000 – about half of the then Manx population); in Olympia; in a former factory (Stratford) and a disused wagon works (Lancaster); and on prison ships moored off towns such as Ryde and Gosport.46 Resentment at conditions spilled over into violence at the Douglas camp on the Isle of Man.47 Winder records that 9,000 appealed unsuccessfully against their internment, but 7,150 won freedom by appealing to the advisory committees.48 There were no appeal rights in respect of restrictions on movement and residence within the country, although advisory committees dealt with deportation of aliens. By the time peace was signed, ‘24,450 were still in the camps’.49 By mid-November 1919, 28,744 aliens, mainly German, had been repatriated, many voluntarily, some compulsorily.50

Internment of, and Imposition of Restrictions on, Security Threats or Sympathizers

Detention without charge or trial of British subjects, whether they had acquired their citizenship by birth, descent or voluntary act like naturalization, could not be effected under the prerogative, and the Aliens restriction legislation was inapplicable. Under the Defence of the Realm Regulations (DORR) made under DORA, however, very wide powers were entrusted ‘to the Executive to act on suspicion on matters affecting the interests of the state’.51 From their inception, DORR 14 enabled the imposition of controls prohibiting a person ‘from residing in or entering any locality’ when he or she ‘was suspected of acting, or of having acted, or of being about to act in a manner prejudicial to the public safety or the defence of the Realm’.

There were no provisions for any hearing or appeal. The subject of the order was required to leave an area within the time specified in the order. Over the period of the War, 612 people were removed or excluded from areas under its provisions.52 In many ways, it is a forerunner of prohibition and exclusion orders to protect Great Britain under the Prevention of Violence (Temporary Provisions) Act 1939 and of similar powers operable from 1974 to exclude British citizens from one part of the United Kingdom (Great Britain or Northern Ireland but not both simultaneously) under successive Prevention of Terrorism (Temporary Provisions) Acts.53 There are also clear affinities with powers under the Civil Authorities (Special Powers) Act operating in Northern Ireland from 1922 to 1972.54 Analogies can also be drawn with current powers to restrict movement, residence and liberty imposable by control orders under the modern Prevention of Terrorism Act 2005 (PTA 2005).55 A closer analogy for the PTA 2005 powers, however, is afforded by the provisions of regulation 14B operable from June 1915. Moreover the more modern powers differ in arrangements for challenge.

The more draconian powers granted the Home Secretary56 under DORR 14B were specifically stated to supplement rather than restrict or detract from the powers under DORR 14 and prerogative powers to intern enemy aliens, examined above. The powers were presented, disingenuously, to Parliament as a mere extension of control over enemy aliens, to deal with those who to all intents and purposes were enemy aliens rather than genuine British subjects, thus suggesting that the targets were British subjects of German or Austro-Hungarian descent. They had been introduced because the Government believed ‘that the Germans were trying to establish a new corps of agents recruited from residents of German descent’ against whom there might not be enough evidence to convict at a criminal trial by court martial.57 But the regulations covered a wider range of people, whether British subjects or ‘friendly’ aliens. Regulation 14B provided:

Where on the recommendation of a competent naval or military authority or of one of the advisory committees hereinafter mentioned it appears to the Secretary of State that for securing the public safety or the defence of the realm it is expedient in view of the hostile origin or associations of any person that he shall be subjected to such obligations and restrictions as are hereinafter mentioned, the Secretary of State may by order require that person forthwith, or from time to time, either to remain in, or to proceed to and reside in, such place as may be specified in the order, and to comply with such directions as to reporting to the police, restriction of movement, and otherwise as may be specified in the order, or to be interned in such place as may be specified in the order.

There was no definition of the terms ‘hostile origins’ or ‘hostile associations’. Matters were left to be decided on a case-by-case basis.58 The latter phrase seems to have been used to detain British-born subjects suspected of espionage or subversion.59 As is seen in chapter 3, the main use (initially abuse) of the regulation was with respect to events in Ireland. Otherwise, it was used ‘with restraint’.60 The numbers of ‘non-Irish affairs’ cases pale in significance when contrasted with the number of enemy aliens interned or deported. Simpson estimates that the peak was reached in June 1917 with 125 detainees, of whom 73 were British subjects, and the final releases did not take place until November 1919.61 In all, probably some 160 orders were made in the course of the War.62

Although a few were held in Brixton, Pentonville and Reading prisons, most 14B detainees were held in the Islington ‘Camp’ (an old Poor Law Institution).63 Apart from the ‘Irish’ cases, the names of detainees were not published in the press, so that ‘as in the most odious of tyrannies, the executive could make people disappear’.64 Unless the Home Secretary relaxed the regime, internees were to be subject to the same restrictions and to be dealt with in the same manner as prisoners of war. Failure to comply with any provisions of the order constituted a criminal offence under the regulations. Internees were afforded a right to make representations to an advisory committee appointed to advise the Home Secretary on the internment and deportation of aliens.

Administrative Challenge

Representations against detention under the prerogative and under regulation 14B could be made to an advisory panel, inaptly described as one ‘of a judicial character’,65 appointed to assist the Home Secretary in the operation of these powers. The England and Wales panel was chaired by a High Court judge or a judge above that level. Fairly junior judges were selected (Sir John Sankey, who presided as the senior judge, and Sir Robert Younger). Of the other six members, two were women and the other four were MPs, among them Stanley Baldwin, later to be Prime Minister. The separate Scottish panel was chaired by Lord Dewar who sat with two other members.66 The advice of the panels for release was invariably accepted.67 In 14B cases they did not sit in panels. They operated in private, hearings followed the mode of interrogations, detainees had access to legal advice, but lawyers, while they might serve as witnesses, could not act as advocates. Detainees were provided, so far as security allowed, with a written statement of the case against them, the details of which would vary from case to case, with only some giving full details of alleged misconduct. Here as elsewhere in the use of such executive measures, a paramount concern was to protect the confidentiality of security evidence. Simpson characterises the committees as conforming ‘to the popular vision of Star Chamber’,68 the prerogative court of the Tudor and Stuart monarchs. A real problem for the researcher here lies in the lack of records, which have almost totally been destroyed. Those remaining in HO144 at the National Archives deal principally with the Irish cases, although there is a classified list of internees and some material on censorship of correspondence. But it remains the case that