Retrospective and Reflective

Chapter 10
Retrospective and Reflective

This book has examined the use, in the period since 1905, of executive measures of internment, restriction of movement, exclusion and deportation as methods of managing terrorism and protecting national security. It has done so in a variety of contexts: dealing with the ‘enemy’ at home in the two World Wars; the ‘Irish’ and ‘Northern Ireland’ questions; and in refusing entry to or removing or deporting undesirable ‘aliens’. Such measures were used both at home and in the establishment of and withdrawal from colonial empire. Initially eschewed (apart from the immigration control option) and thus given much reduced significance in the creation of permanent legislation to combat terrorism at the start of the twenty-first century, after 9/11 and 7/7 they again became a central feature of the State’s legal armoury in what has misleadingly been called the ‘war on terror’. Whatever the specific context these executive measures have been deployed to manage terrorism or threats to national security, in a variety of situations and for a variety of reasons, to supplement or to provide an alternative to a ‘pure’ or more often a ‘modified’ criminal prosecution approach (arrest and extended detention without charge; charge; trial; conviction; and sentence – initially death or imprisonment, now purely the latter, in part because of human rights obligations). That pure or modified criminal process, so often the State’s central means of suppressing deviant behaviour, had for a number of reasons significant problems in coping with deviant criminality in the form of threats to national security, insurgency and terrorism. These problems were ones such as intimidation of witnesses or their reluctance to come forward to give evidence or information for fear of reprisals and/or a degree of tacit support for the insurgent or terrorist group with which the accused was connected. They could also be the difficulties posed in protecting in an adversarial system the identity of informants and security sources or methods of detection in a context in which a fair trial demands full disclosure of material which might establish innocence. As with the exile/deportation of Archbishop Makarios in Cyprus, however, the problems might stem not from the difficulties of getting a conviction, but rather from those which would arise if a conviction was obtained.

This admixture of either type of criminal prosecution approach and the ‘security’ approach exemplified by the executive measures on which this book has focused, has not operated in a vacuum. Each context – other than perhaps the two World Wars – has had its constitutional, political or ‘hearts and minds’ dimension, although this last term seems to have been coined in the Malayan emergency of the late 1940s and the 1950s. This dimension is particularly obvious and striking in the responses to the Irish and latterly Northern Ireland questions and in the emergencies that marked the withdrawal from colonial empire. Those broader aspects of those responses operated alongside and often in tension with the security powers which are the main subject of this book. They involved – whatever the initial public stances of non-negotiation – talking to and reaching an accommodation with those previously condemned by Government as terrorists, rebels, malign elements, or subversive or seditious agitators. Ireland, Northern Ireland, Cyprus and Kenya are, of course, the prime examples in this book. But we have seen them featured also in Malaya. Former rebels or terrorists on taking power as the new democratic government have not been slow to use the same or analogous security powers the British deployed against them to deal with perceived threats to the new State or their own hold on political power. This constitutional, political or ‘hearts and minds’ dimension has been seen not to be wholly absent from the so–called post 9/11 ‘war on terror’, but the nature of the threat has been perceived to make that dimension much more problematic than dealing with irredentist or nationalist terrorism. Constitutional and political solutions are not so readily apparent; the causes which serve to feed the threat are among the most intractable, their resolution not readily lying in the hands of States facing the threat; the demands of the ‘opposition’ or ‘enemy’ are more diffuse or rightly seen by the threatened as areas which are simply ‘non-negotiable’.

It is, of course, tempting to dismiss the range of restrictions imposed under nonderogating control orders as minor inconveniences (especially when contrasted with the danger they are there to prevent), as mere restrictions on movement, not, legally speaking, one of the fundamental human rights binding the United Kingdom. Closer examination in chapter 7 of those actually imposed, however, reveals very significant degrees of interference with rights to respect for home, correspondence, private and family life, with freedom of thought, conscience and religion, and with associated and intertwined freedoms of expression, assembly and association, central to a liberal democracy, and central to the individual as a social animal.

Those impacts run through all the situations examined in this book. But for almost half the period under study – until 1953 – those rights and freedoms found their expression mainly in the political arena and only in a common law and its ‘implied Bill of Rights’ much muted by the power of statute and the willingness of the judiciary to accede to executive claims of ‘emergency’ and ‘national security’, something exemplified most graphically by R v Halliday, ex parte Zadig in the First World War and by Liversidge v Anderson in the Second World War. The voice of key rights and freedoms was more muted in that legal arena than in some other States since, generally, neither within the United Kingdom nor abroad in its colonial Empire did they find expression in a constitutional instrument or even a statutory Bill of Rights. Until 1948, moreover, they found no real expression in an international legal order founded as now on the sovereignty of States, but one in which the treatment by a State of its own nationals was a matter of domestic jurisdiction, and generally not regarded as the proper concern of other States. Not so, of course, the position of foreign nationals in respect of whom their national State might invoke its right of diplomatic protection. That possibly benefited Eamon De Valera, who escaped execution for his part in the 1916 Easter Rising. But both in the expansion of colonial empires and the German expansionism which lead up to and formed a central part of World War Two, concern for how another State treated one’s nationals produced military aggression motivated by less lofty concerns.

After 1945, the international perspective underwent a sea change, in part motivated by the need to limit that danger of aggression and by guilt on the part of the victors at having stood idly by for too long in the face of Fascism. Human rights concerns were a key part of the UN Charter, and its General Assembly – the international community – proclaimed its Universal Declaration of Human Rights in 1948. The Cold War and the division between the developed and developing worlds made it difficult to secure agreement on binding international human rights standards at UN level. In contrast, the greater cohesion of a Western Europe, with vivid memories of one totalitarianism and fearful of a real threat from another in the form of Soviet expansionism, saw the creation of the Council of Europe and the speedy drawing up and adoption of the ECHR. That entered into force in 1953 with enforcement machinery, with roles for legal and political institutions – the Commission and Court of Human Rights, in the former category, and the Committee of Ministers of the Council of Europe in the latter. The individual, under the ECHR, was thus very much the subject of that part of international law. Nor was the impact of the ECHR confined to Europe and thus to a relevance in our context to the Cyprus and Northern Ireland questions. Powers used to combat terrorism connected with those questions have, of course, produced many of the landmark ECHR cases of the Commission since Greece v United Kingdom (the first and second Cyprus cases) in 1957 and of the Court since Lawless v Ireland