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In August and September 1943, conferences took place to decide what was to become of Regulation 18B when World War II in Europe ended. Norman Kendal seems to have wanted to retain it permanently, while Military Intelligence Section 5 wanted to be able to detain for ‘acts prejudicial’ in Japanese espionage cases until Japan was defeated. This was grudgingly accepted both by the Home Office and the Emergency Legislation Committee. By early 1944, it was settled that at the end of hostilities in Europe all detainees connected with the European war would be released. In the event it was decided not to retain 18B in any form, and it was abolished by an Order in Council passed the day after VE Day. Winston Churchill's views probably played a part in this. Regulation 18B, however, remained in force until 1947 under the Emergency Laws (Transitional Provisions) Act of 1946, and under it Oswald Mosley and four other persons were prevented from travelling abroad.

In 1943, with finance from the Duke of Bedford, G. A. Aldred, a Glasgow anarchist, published a pamphlet attacking Regulation 18B; it records the experience of detainees, and was mainly compiled by John Wynn, himself detained under 18B (1A) from June 1940 to January 1943. One documentable case illustrates both the fear caused by the initial detentions and the witch-hunting atmosphere of the times. John Ellis was a considerable businessman in Leeds. He had joined the British Union (BU) as a non-active member in 1935 or 1936, and had entertained Sir Oswald Mosley during a speaking tour. Another documentable case involved a medical student, Henry A. Steidelman, detained in late July not so much as a BU supporter but as a pro-Nazi and potential spy. As well as mistakes, some revealed in litigation, there were some quite absurd arrests. Winston Churchill took a lively interest in the great incarceration and received weekly lists of ‘Prominent Persons’ detained until September 14, 1940.

The original Regulation 18B was designed to give the Home Secretary an arbitrary power of executive detention; neither its scope nor its validity were ever raised in the courts. The amended 18B was undeniably legally valid, but its more specific text appeared to set limits to the powers of the Home Secretary; potentially the courts had a role in ensuring that these limits were observed. The judges, if they wished, could hold detention illegal if it did not satisfy whatever requirements they regarded as the tolerable minimum. They could play an active part by setting firm limits to the discretionary power conferred on the executive, and by spelling out more precisely the rights of a detainee. Alternatively they could be passive, accepting more or less anything which emanated from the Home Office. And there was nothing in the text which ruled out applications to the courts for habeas corpus, or other legal remedies. The first case to come before the courts involved the colonial Civil Servant, Aubrey T. O. Lees.

Although most orders were made in 1940, quite a few were made in later years. A few names are discoverable, such as Thomas Hubert Beckett. Some suspended orders were reactivated, and a number who escaped were recaptured. But after 1940, the main task was suspending or revoking orders already made. Once the Home Office won the dispute with Military Intelligence Section 5 over British Union (BU) detainees about 450 could be released. By the end of 1941, only 200 BU detainees were still in executive detention. There never developed widespread sympathy or support in Britain for Regulation 18B detainees as people; in so far as there was a popular view it is that they were a crowd of traitors who richly deserved all that happened to them. More surprisingly perhaps, there never developed a strong principled objection to the regulation as a gross invasion of civil liberty; no doubt the explanation lies in the desperate conditions in which it was principally employed. Once World War II ended and the detainees were all released, the subject died.

The new regulation was analysed by L. S. Brass, the assistant legal adviser to the Home Office, who identified five categories of potential detainees; logically there were really eight. But Home Office policy was to distinguish merely two basic categories—those of ‘hostile associations (and/or origin)’, and those involved in ‘acts prejudicial’. Standard forms of order indicated which was involved, but gave no additional information. There was a problem of transition. The committee had heard twenty-four cases, recommending continued detention in only thirteen, and release in six, four subject to restrictions, figures which suggest that confidence in Military Intelligence Section 5 (MI5) was already waning. When the new Regulation 18B came into force, Alexander Maxwell and Sir Ernest Holderness thought that Sir John Anderson should review all existing orders. This chapter examines executive detention during the period of the ‘phoney war’, when the Home Office made very modest use of its powers, much to the irritation of MI5.

On May 22, Parliament passed the Emergency Powers (Defence) Act, which formally conferred on the executive the powers appropriate to a totalitarian state at war; it could now, by regulation, ‘make provision for requiring persons to place themselves, their services, and their property at the disposal of His Majesty as appears to him to be necessary or expedient’. That evening, the Privy Council passed the new Regulation 18B (1A), to be enforced on May 23 as a secret law, for it had not then been published. Its text formed a concise ‘Statement of the Case’ against the British Union (BU); though Sir John Anderson in the House of Commons on May 23 referred to organisations in the plural, the party was to be its only victim; it was not used against the Right Club, the Communist Party of Great Britain, or any other group. Many members of the BU thought that it was the peace campaign which led to their executive detention. Sir Oswald Mosley himself was arrested on May 23, followed by more arrests.

The massive increase in the use of executive detention between May and September 1940 placed great strains upon Britain's bureaucracy. In addition to Regulation 18B detainees, there were approximately 28,000 enemy aliens, detained under the prerogative, and a substantial number of non-enemy aliens, of whom, by November, 895 had been made subject to orders. There were also Irish Republican Army expulsion orders to be made. In terms of paper alone this meant more than 30,000 Home Office files, not to mention those of the committee and Military Intelligence Section 5. Regulation 18B orders remained in theory under John Anderson's direct control, but their judicial and individual character could not survive the imposition by the War Cabinet of political and military policy. Legally, the Home Secretary personally made the orders; although the point never arose in litigation, the making of such orders involves in legal theory a ‘quasi-judicial’ decision, the performance of which cannot be delegated. But the idea of Anderson applying his own judgement to each case was now fanciful.

Executive detention in Britain normally began with arrest without warning. There were ugly incidents. R. R. Reynolds of Tottenham was slapped. Some resisted arrest. Amongst the Anglo-Italian communities, the 600 Regulation 18B detentions coincided with 4,000 or so arrests under the prerogative, and produced terror. Arrests separating parents, particularly mothers, from young children, seem peculiarly harsh. No special arrangements were made for the care of families and dependants; they could apply like anyone else to the Local Assistance Board. The techniques adopted at Latchmere House are clinically described by Hinsley and Simkins in an appendix, so drafted as to impose responsibility on the Home Office for what went on. There was fear in Military Intelligence Section 5 that information about Latchmere House, and the double agents, might leak. As early as June 11, it had been suggested that detainees should be held in camps. Winston Churchill had long been a romanticiser over habeas corpus, and although initially a strong advocate for detention he soon began to have doubts.

This book is a history of the use of executive detention in Britain during World War II under Regulation 18B of the Defence (General) Regulations; this enabled the government to imprison citizens thought to be dangerous to national security without charge, trial, or term set, under what Herbert Morrison, who administered the system during most of the war, described as ‘a terrible power’. Just under 2,000 individuals were so imprisoned in as gross an invasion of British civil liberty as could be conceived, only justifiable, if at all, by the grim necessity of the time. Imprisonment is of course commonplace, and is indeed the typical punishment imposed for serious breaches of the criminal law. But executive detention is designed to be employed in advance; hence detainees languish in prison not for what they have done, but for what they might do in the future if they remained at liberty. Also, detention is typically imposed as a result of an administrative decision, taken in private, by state officials, without any form of prior trial.