Finding an Enemy

Conor Gearty

  • Legislation against Terrorism: A Consultation Paper. CM 4178.
    70 pp, £9.95, December 1998, ISBN 0 10 141782 9

In the last week of July 1939, just before the summer recess, a hitherto unannounced Bill was sprung on the House of Commons. It was said by the Government to require immediate enactment, and was duly passed by the lower House in two days, becoming law a couple of days later, after an afternoon amble through a supportive House of Lords. It was the Irish in general, and the IRA in particular, who provided the explanation for this contrived panic, which could not be justified even from statistics available at the time. (The worst IRA atrocity of this period, the killing of five people in Coventry’s main shopping area on 25 August 1939, came after, not before the Act.) In the six months to July, the police had managed to bring 66 suspects to trial for offences connected with IRA attacks without this emergency law.

Under the terms of the new Prevention of Violence (Temporary Provisions) Act 1939, anyone suspected of being involved in the preparation or instigation of acts of violence ‘designed to influence public opinion or Government policy with respect to Irish affairs’ was liable to be refused entry to Britain, to be expelled if they were in Britain already or, as a liberal concession, to be forced merely to register with the police. To escape the law’s clutches, an Irish resident in Britain had to show that he or she had been resident there during the preceding 20 years, a near impossible task for many, particularly given the lack of border controls between the two countries. At the last moment, as the Bill was going through the Lords, the Government threw in an extra power of arrest and detention for up to seven days without charge. The clock was ticking towards the holiday break, and the Home Secretary Sir Samuel Hoare, referring to recent acts of violence, claimed to have ‘been told that if we had had these powers two days ago it is very likely that we might have forestalled one or other ... of those outrages’. In the first two months after the Act was passed, 113 expulsion orders, 25 registration orders and ten prohibition orders were made, and by the end of May 1940, a total of 167 expulsion orders had been made, statistics which ignore the substantial emigration of the Irish from Britain following the Act. Originally due to expire on 28 July 1941, it was kept in force until the end of that year under wartime powers and did not disappear completely from the statute book until 1973.

During the second reading of the Bill, Hoare had talked knowingly about the IRA’s ‘ “S” Plan’, under which it seemed the organisation planned to attack the UK’s drainage system, water supply and electricity grid and even to blow up the Houses of Parliament. Inevitably, this made headlines. But on Hoare’s own admission the authorities had had the IRA document since ‘about the beginning of the year’, so why the sudden urgency? Why had action been left until the last four days before the summer recess? There were also dark mutterings from Hoare about the IRA being ‘actively stimulated by foreign organisations’, on which point he asked members ‘not to press for details’. It was naturally thought he was referring to Germany. In fact, he just meant the reliably Anglophobe Irish Americans, and Cabinet papers now reveal that even their involvement probably amounted to no more than fund-raising. But this talk of malicious masterplans and hints of Nazi support had the desired effect, winning round not only the Government backbenches but also the opposition parties to support for the measure, and thereby effectively neutering Parliamentary opposition in the face of a ‘national crisis’.

On 1 April 1996, the Monday of Easter week, the then Home Secretary, Michael Howard, made a surprise statement full of foreboding about imminent IRA violence and the need for immediate legislation to prevent it. Various lacunae in the law had been discovered which it was now suddenly deemed essential to fill. Naturally, having left everything so late, time was of the essence: the Home Secretary said that it was vital to act even if only one life were thereby to be saved. Behind the scenes there was mention of an imminent IRA campaign to commemorate the 80th anniversary of the Easter Rising. Suitably cowed, the Commons passed the whole Bill in just one day, the day after it had been first mentioned. The Lords trotted behind and the measure was law by Wednesday, just in the nick of time, Parliament having already long ago decided to rise by Easter Thursday.

New and wide police powers to stop and search pedestrians without any prerequisite for reasonable suspicion were achieved by this speedy legislative process, but there was no upsurge of violence. Maybe the searches immediately initiated under the Act (if there were any) did the trick; perhaps even the mere possibility of them forced the IRA to call off their planned campaign of violence. Maybe there was no campaign, it not being the 80th anniversary of the Rising after all (Easter being a movable feast). None of this matters anymore; the police have their powers. And IRA or no IRA, they are regularly exercised. During 1997, 43,700 stops and searches were made by the police in England and Wales under the anti-terrorism legislation. In 1998, the year of the Belfast Agreement, there were 15,400, generating 316 arrests – about a 2 per cent success rate.

When the then Leader of the Opposition was questioned about his support for this Bill, Tony Blair said that it was the sort of thing Labour might themselves have to do in government. In fact, within eighteen months of becoming Prime Minister, he had gone one better, pushing through the Criminal Justice (Terrorism and Conspiracy) Act 1998 in two days. On this occasion Parliament was recalled, and persuaded (via the usual guillotine motions and talk of crisis after the Omagh bomb) to authorise not just new legislation covering Ireland but also additional provisions designed to tackle the ‘problem’ of ‘international terrorism’. Under the terms of these clauses, which had nothing to do with Northern Ireland, it would henceforth be a serious offence to plan criminal acts abroad – even where the ‘abroad’ at issue was a totalitarian or authoritarian state and the planners of the ‘crimes’ were seeking justice or democracy.

No member of either House had the first clue what he or she was voting on. The Bill had not been made available for scrutiny until 5.50 p.m. on the evening before the Commons debate. In the words of the independently minded Conservative Richard Shepherd, all we ‘knew about the Bill was what I believe the country will come to detest more than anything – the manipulation, the spin, the press releases and all the covert ways of trying to secure the legislation of this country without reference to Parliament.’ The sections on ‘international terrorism’ secured a place in the law for provisions similar to those in an earlier private member’s Bill which had failed to command support in the last months of the Major Administration.

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