How the Judges Stood in the Way of Socialism
- The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain 1914-1945 by K.D. Ewing and C.A. Gearty
Oxford, 451 pp, £50.00, February 2000, ISBN 0 19 825665 5
This book’s most startling revelation – if true – concerns the state of legal education in Britain today. We are told that from their ‘first days at law school’ our young lawyers are taught that civil liberties in this country are ‘protected by the common law’ and that ‘their violation has been the fault of Parliament’. The hero of the story, law students learn, is an ‘independent judiciary’, standing steadfastly between the citizenry and tyrannical politicians. Apparently it performed this function particularly well in the first half of the 20th century, making that a ‘golden age of liberty, a time when … the common law was steadfast in its defence of political freedom’. But no historian has believed that for years, if ever. Don’t they read history books at law school?
Vol. 22 No. 12 · 22 June 2000
Bernard Porter (LRB, 1 June) backs up the suggestion made by K.D. Ewing and C.A. Gearty in The Struggle for Civil Liberties that judges in the years covered by their book – 1914-45 – had an ‘obvious political bias’ against the Left. But it was not just the Left which was the object of repressive measures supported by the courts. Only one political party was closed down during this period: the British Union of Fascists. Its leader and many of its members were detained without trial, and it was proscribed. With hardly a dissenting voice the judges backed the authorities.
During the First World War around 160 citizens were detained in mainland Britain without charge or trial. Destruction of records means that not a great deal is known about them, but it is clear that their detention was motivated by fears of potential disloyalty, not by their membership of either left-wing or right-wing political groups. The legality of their detention was challenged in the courts and the judges upheld the system. Between 1916 and the establishment of the Irish Free State, there were thousands of detentions – and with rare exceptions the courts upheld them, too. Locking up Irish nationalists had nothing to do with stopping socialism, but that did not deter the judiciary. The simplest and most convincing explanation is that the judges consistently and indeed enthusiastically backed the authorities, whoever they were after.
As for the repressive activities of the executive, Porter’s claim that ‘extreme right-wing opinions never attracted the same level of repression’ as those of the Left is not easy to reconcile with the abundant evidence as to what happened during the Second World War. Only one regular member of the Communist Party and a very few former members of the Labour Party are known to have been detained without trial. Over seven hundred of Mosley’s followers were detained, as well as about six hundred harmless Anglo-Italians. Harassing the Left in the 1920s and 1930s was peanuts in comparison.
Bernard Porter is right to comment that if governments decide that they need new repressive laws they bide their time, wait for (or create) a ‘national panic’, then, ‘lying through their teeth, insist that the legislation is very mild’ and in the best interests of the public. This is the way New Labour has eroded legal aid provision. The justification is that solicitors and barristers can afford to do the work for nothing, although it is put less crudely than that. In referring to ‘fat cats’, the Lord Chancellor, Lord Irvine, a high earner when he himself was at the Bar, created the impression in the public mind that all lawyers were as he was. He must know, however, that to become wealthy while undertaking legal aid for the generality of clients is impossible.
That John Upton is no longer in practice no doubt accounts for an error he makes in the same issue when discussing what happens if a client reveals to counsel that he is guilty. After making sure that the man really is guilty of the crime he confesses to (some misunderstand the nature of the crime alleged against them), counsel must tell his client a) that he can no longer make any suggestion of his client’s innocence in cross-examination, although he may properly test the prosecution evidence to see if it proves guilt; and b) that he cannot allow the accused to go into the witness box, since he will no doubt protest his innocence. Provided the client is content with such restricted representation, counsel may continue to represent the accused. In the course of thirty years I have experienced this situation only once.
Chairman, British Legal Association