In the Highest Degree Odious: Detention Without Trial in Wartime Britain.

• Author: Posner, Richard A.

By A. W Brian Simpson. Oxford: Clarendon Press. 1992. Pp. x, 453. $62.

During World War II, Great Britain, like the United States and, I imagine, every other belligerent nation and doubtless many neutral ones as well -- imprisoned a number of its own citizens (not to mention aliens) without lodging criminal charges against them. Brian Simpson, the versatile, distinguished, and prolific English legal historian and jurisprudent now teaching at the University of Michigan Law School, tells the story of Britain's use of executive detention during World War II with his accustomed combination of wit, panache, an eye for the vivid and telling detail, narrative vigor and clarity, and tenacious burrowing in archives and survivors' (or their descendants') memories.(1)

The legal vehicle for the program of detention was a regulation, denoted Regulation 18B, promulgated by the Cabinet pursuant to an emergency defense bill passed by Parliament a week before Germany invaded Poland in 1939. The regulation had been drafted much earlier, however; it was in fact an updated version of a regulation that had authorized executive detention in World War I and in troubled periods in Ireland. As amended shortly after the outbreak of World War II, Regulation 18B authorized the Home Office, which corresponds roughly to our Department of Justice, to detain any person upon "reasonable cause to believe" that he was "of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts."(2) The person detained was entitled to make "objections" to an advisory committee appointed by the Home Office, and the chairman of the committee was required "to inform the objector of the grounds on which the order [of detention, or other restriction] ha[d] been made and to furnish him with such particulars as [were] in the opinion of the chairman sufficient to enable him to present his case" (p. 425). After hearing the objector's case, the advisory committee would advise the Home Secretary whether to continue or lift the detention order. The regulation contains no reference to judicial review.

A total of 1847 detention orders were executed under Regulation 18B, of which 1145 were against "straightforwardly British citizens" (p. 223) as distinct from aliens, persons who had been born in nations with which Britain was at war, or persons of uncertain nationality. The vast majority of the orders were issued in May, June, and July of 1940, the nadir of Britain's fortunes in the war; the peak month was June, when 826 orders were issued, although not all were executed. The names of persons to be detained were supplied to the Home Office by the Security Service, commonly known as MI5.(3) The Home Secretary reviewed the Security Service's recommendation, though often perfunctorily, and if the recommendation was approved, the person to be detained was immediately arrested, without any warning, and imprisoned. If the detained person filed an objection, he was given a hearing before an advisory committee, though often not for several months. He could be advised by a lawyer, but the lawyer was not permitted to attend the hearing. The advisory committees were composed of distinguished private citizens; the chairmen were lawyers. Often, as a result of the hearing, the committee would recommend to the Home Office that the detained person be released, and these recommendations, though often opposed by the Security Service, were generally followed. Most detainees were released after some months; very few were held to the end of the war. Some challenged their detention in court, mainly by habeas corpus proceedings. These challenges were uniformly unsuccessful.

The largest group of citizen detainees were members or ex-members of the British Union of Fascists (BU), headed by Sir Oswald Mosley (he and his wife were among the detainees), or of other pro-Nazi or fascist associations. Among the persons detained were a Member of Parliament, a retired admiral, and a peer. The Security Service believed that the people it wanted detained represented a potential Fifth Column that would erode the British will to fight and, in the event of a German invasion, assist the German army. In retrospect it is apparent that the Security Service greatly exaggerated the danger of Fifth Column activity in Britain. The potential Fifth Columnists were few, and the vast majority of them were harmless cranks given to anti-Semitism and "nostalgic veteranism" (p. 116); one of the BU's front organizations was the London and Provincial Anti-Vivisection Society, and after his release one of the detainees composed an autobiography that he entitled Out of Step: Events in the Two Lives of an Anti-Jewish Camel Doctor. Even the leaders and hard-core members of the BU were, with only a few exceptions, loyal to their country, though prone to admire Germany and to criticize Britain for having entered the war on the side of France and Poland. "That there was never any real need to lock most detainees up is simply common sense"...