‘Today Robert Burns might have been in Barlinnie Prison writing his jail diaries’

If he were alive and writing today, Scotland’s national poet would be facing charges under modern anti-terror laws

ROBERT Burns’ great song Scots, Wha Hae Wi’ Wallace Bled is considered by many to be an appeal for insurrection. It is not so much about Wallace and Bruce but about Burns using their example to incite the struggle against an increasingly tyrannical and corrupt government in London. The last line “Liberty’s in every blow / Let us do – or die” is not only an incitement to direct violence, it also directly connects Burns with the armed revolutionary struggle then ongoing in France; “Let us do – or die” being the French revolutionaries’ battle cry

Samina Malik, a shop assistant at Heathrow Airport, was the first woman to be convicted under the UK’s Terrorism Act 2000. She was charged with the crime of “possessing records likely to be used for terrorism”. Among these “records” were a number of poems inciting jihad. She was found guilty and sentenced, a judgment later overturned on appeal.

The parallels between Burns and Malik are obvious: radicalised politics; associating with others of a like mind; connections with foreign terrorist groups and a call to insurrection. So how would Robert Burns, who styled himself a “son of sedition”, fare if he were to be judged by the standards of our current anti-terror legislation? Would we find him detained in Barlinnie Prison, languishing in solitary confinement and composing his jail diaries? If Scots Wha Hae could be indictable under our contemporary terror legislation, for what else might Burns have been prosecuted?

A comparison of relative civil liberties between two eras separated by a couple of centuries is difficult but there are parallels between Burns’ time and ours – one being that the British government conducted its first War on Terror during the 1790s. It was in France during the 1790s that the word “terrorist” was first coined to describe the extremes of the Revolutionaries. Burns was an ardent supporter of not only that revolution but also the American one of the previous decade.

The British government of the time was deeply worried by the effect the French Revolution was having on the increasingly vociferous homegrown radicals. Among their demands was an independent, republican Scotland with a greater democratic mandate. Suffrage at the time was limited to landowners and they considered the government to be corrupt and the King, George III, to be tyrannical when he was sane enough. There were arrests, imprisonments, transportations and blacklistings. Burns was very close to many who suffered in all of these ways.

The Terrorism Act 2000 redefined terrorism for us as “the use or threat of action where [that] threat is designed to influence the government... for the purpose of advancing a political, religious [, racial] or ideological cause”. During 1793, the Scottish radicals stepped beyond the “threat of action” with riots breaking out in towns and cities up and down the east of Scotland. Chief among the groups held responsible for these outbreaks was one called the Society of the Friends of the People. The intellectual leader of the Scottish Friends was a Glasgow University-trained lawyer called Thomas Muir who was subsequently put on trial for sedition and sentenced to 14 years’ transportation. It was considered a show trial and marked the end of realistic constitutional reform.

Muir was a close associate of many that Burns also knew, which brings us to another provision of our anti-terror laws and that is the creation of the “proscribed group” where the Home Secretary has the power to prohibit groups that he considers to be “concerned in terrorism”. To be a member of such a group or even to arouse reasonable suspicion that someone is a supporter of such a group is sufficient for a prosecution. Burns was closely associated with many groups that might well have been on a proscribed list.

There is a seldom seen painting that hangs in the Museum of the Grand Lodge of Scottish Freemasonry in Edinburgh’s George Street. Burns is standing before the assembled Brethren of the Lodge, Cannongate Kilwinning, on the night of the 1 March 1787, when he was invested as the Bard of Scottish Craft Freemasonry.

The picture itself was not painted until 50 years after the supposed “investiture” but was not entirely an invention. In deciding who to include, the artist and the Grand Lodge had made use of the Lodge minutes for that particular night and other meetings, many of which Burns had attended. Sixty men, other than Burns, are shown; all real people, all Freemasons and all with a connection with Burns. But those very criteria, being a friend of Burns and being a Freemason, reveals something else that is extremely telling about the national poet: that many of them, close acquaintances of Burns, were also closely allied to the radical cause. Several of them made the journey to France to witness and learn from the Revolution at first hand.

The Lodge that is shown is one of the oldest and most esteemed, and at this time was known to be a hotbed of radicalism. There was, during this era, a strong connection between Freemasonry and radical politics; many thought that the principal architects of both the French and American revolutions had also been Freemasons.

In his book Burns The Radical, Professor Liam McIlvanney explores the extent of Burns’ radicalism. If you cross reference the names of the men in the painting with those McIlvanney mentions as radicals you discover that 20 of them appear in both lists. These men were the leaders of Scottish society of the time – could the 20 have been the core of a republican Scottish government in waiting?

The painting demonstrates that Burns was not only associating with those in “proscribed groups” under the 2000 Act, he was a member and right at the heart of their undertakings – in fact he was regarded as a spokesman for them.

Expert legal opinion would seem to agree that Burns would have been prosecutable under the Terrorism Act. Mark Muller Stuart QC, member of the Faculty of Advocates in Edinburgh, whose wife, Catherine, by coincidence is a direct descendant of the Earl of Buchan, one of the 20 radicals pictured with Burns, says: “It is therefore more than a little arguable that Burn’s may have found himself subject to prosecution for a range of offices under the Terrorism Act 2000. Whether such a prosecution would be successful is far less certain given own his inimitable advocacy.”

In a corner of the painting is John Millar, Professor of Civil Law at Glasgow University, the intellectual leader of the radicals and Muir’s teacher. It has been suggested that this radical group also had in mind a leader for the new republican Scotland and that was Basil William Douglas-Hamilton, Lord Daer. Burns’ meeting with him is immortalised in the poem Lines On Meeting With Lord Daer. But the revealing mention of Daer by Burns is in another poem called The Scots Prologue in which he says, “Perhaps if bowls row right, and Right succeeds, / Ye yet may follow where a Douglas leads”. The “Douglas” is Daer and the “lead” is his leadership towards a reformed Scotland.

So we have Burns indicted on two charges under the Terror Act 2000, but there is a third. During his latter years Burns was working as an exciseman for the Customs authorities and during that time had acquired four small cannons from a wrecked ship. These he had sent to the French Revolutionary Council to aid them in their struggles. France at the time was a terrorist state and not only that it was offering to export its revolutionary terrorism to the peoples of any other country who cared to join them. Under the 2000 Act the “use or threat of action... which involves the use of firearms or explosives is terrorism” and the export of arms for terrorist purposes is an offence.

So the charge sheet against Robert Burns consists of three charges:

1. Possessing records likely to be used for terrorism.

2. Being a member of a proscribed group.

3. The exporting of arms intended for use in terrorist acts.

Would he have been found guilty under the Terrorism 2000 Act? Well, that could only be speculation but what is worth considering is that in his own time he was never charged with any offence and that period is considered one of the most repressive periods in British history, and yet under our current legislation there would appear to be sufficient evidence to charge him with three separate offences and possibly a fourth, more recently added – “the glorification of terrorism”.

The cosy, Victorian version of Burns’ life is that his politics were confused and ill-informed and that in the last three years of his life, following the government crackdown on the radicals, he recanted his “political heresies”. But the recent discovery by Professor Robert Crawford of a transcript of Burns’ last recorded conversation a few days before his death in July 1796, where he declares that he is still a “staunch republican” would suggest the exact opposite. The last three years of Burns’ life were deeply unhappy ones perhaps because he had watched his revolutionary dream wither and die, crushed under the brutal heel of the first ever War on Terror. «

• Alistair Fraser is a TV producer and writer with a long-standing interest in Robert Burns and his legacy