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How the Judges Stood in the Way of SocialismBernard Porter
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Vol. 22 No. 11 · 1 June 2000

How the Judges Stood in the Way of Socialism

Bernard Porter

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, February 2000, 0 19 825665 5
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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?

Ewing and Gearty do; not very many, granted, but enough to put them straight, and, with luck, to return their legal readers to earth. In one of the most refreshing parts of their book they place British common law in its historical context, where it is clear that the main impulse behind it was the protection of individual property: a very different thing from – and, as they point out, easily inconsistent with – the defence of civil liberties. (Civil liberties are here defined narrowly, as ‘only those liberties which are designed to promote a sense of political engagement’.) Hence the vulnerability of those liberties if they are made to rest only on precedent, and on the general concept of the Rule of Law, which A.V. Dicey believed to be a sufficient guarantee. (It has often puzzled historians that the lawyers regard Dicey as a Great Brain.)

The problem with the Rule of Law is that it means very little if the executive can make up the law as it goes along. Ewing and Gearty show this happening continually in the interwar period. People were harassed, premises raided, harmless citizens arrested and imprisoned, meetings banned, crowds beaten senseless: all in obvious defiance of existing laws straightforwardly interpreted, yet all (or nearly all) done with impunity. Tales of police violence are legion, and were fairly notorious at the time. They were the main reason for the formation of the National Council for Civil Liberties in 1934 (now more blandly and ambiguously called Liberty). That in itself should have made lawyers think twice about their supposed ‘golden age’.

Prosecutions – if we are to believe Ewing’s and Gearty’s evidence – were often ludicrous. In April 1921 a man was brought to court for offering to put the King in the mines ‘with his shirt off and make him do the same as the miners, and get corns on his shoulders picking coal’. In June 1926 someone got three months’ hard labour for suggesting that the police ‘might be engaged on better work’ than visiting him at night to see if he was harbouring a fugitive. Meetings were banned and broken up when there were no grounds for fearing disorder or even obstruction, simply because police chiefs didn’t like the look of them. The ‘Trenchard ban’ on demonstrations outside labour exchanges was ‘the most blatant’ example of this: if there was violence, it occurred only when the police arrived to confront the demonstrators. The Communist Party’s offices were raided on a regular basis on the flimsiest of grounds; on one occasion they were stripped of virtually everything except an urn containing the ashes of Eleanor Marx Aveling, which was waiting to be carried to Moscow. I’m slightly surprised that the ever-vigilant Special Branch, which Ewing and Gearty describe as ‘the private political police force of the Home Secretary’, didn’t give it a stir, just in case. After one raid a senior police witness was asked what was seditious about Darwin’s Origin of Species, which he had taken away. He replied that he didn’t know. A pamphlet was then handed to him ‘with the request that he single out a seditious statement. After a good deal of searching, a passage dealing with international unity was read.’ In October 1925 a blatant case of contempt of court by the Home Secretary – announcing the arrest of ‘a certain number of notorious Communists’ to the members of the Hounslow Amateur Dramatic Society in a way that was clearly prejudicial – passed off without reproof. Governments and police were virtually unfettered. As early as 1926, the Labour leader Ramsay MacDonald complained about what he saw as ‘this extraordinary drift’ towards ‘a police state’. Traditionally educated lawyers will no doubt smile at this, but Ewing and Gearty don’t. In Northern Ireland, under a bigoted Ascendancy of which Westminster more or less washed its hands, things were even worse.

How were they able to get away with it? One method was sleight of hand. Governments have always been good at this. If they decided they needed new repressive laws they bided their time, waited for a national panic, then, lying through their teeth, insisted that the legislation was really very mild. The most notorious example was the draconian 1911 Official Secrets Act (‘the actual change in the law is slight,’ claimed the Secretary for War, quite disingenuously); but the Incitement to Disaffection Act of 1934 runs it pretty close. That was presented as nothing more than a tidying up of the 1797 Incitement to Mutiny Act, and as offering ‘an easier, swifter and more suitable remedy and punishment for the comparatively humble persons who are caught distributing literature’. How kind.

Wherever possible, new legislation was avoided. For one thing, Governments didn’t want to antagonise Parliament, which, pace the law schools, Ewing and Gearty credit with far greater vigilance in this area than the judiciary, though still not enough. Governments were also ‘reluctant to advertise that the country was under real danger from revolutionary agitation’, because that might strengthen the appeal of the agitators. And of course they wanted to appear liberal. Nothing cements popular loyalty like the myth of freedom. (It has worked in the United States.) Clamping down while seeming not to was the perfect way. They were brilliantly ingenious at this: rediscovering old laws, distorting precedents and stretching the ‘discretion’ that the system gave them beyond all reason or justice. Ewing and Gearty call this ‘covert’ law-making. ‘It was in the twilight world of unreported cases and barely noticed procedural ruses and obscure laws that the flimsy rhetoric of the nation’s largely only theoretical commitment to political liberties came up against the immoveable reality of State repression.’ This, apparently, is why the law schools have missed it. One of the great achievements of this book is to have painstakingly unearthed it all.

Of course these developments would have been impossible without the connivance of the judiciary. Ewing and Gearty are excoriating about this. Most judges would not have recognised a civil liberty if it had sat on them. (Usually of course it was the other way around.) Some appear to have been merely senile, like the 77-year-old Lord Trevethin who was Lord Chief Justice in the early 1920s, and Lord Justice Avory, who was ‘well into his eighties’ when he judged a number of important civil liberties cases in the 1930s. Then there was Lord Hewart, whom the Oxford Companion to Law describes as ‘perhaps the worst Chief Justice since the 17th century, not as being dishonest but as lacking dignity, fairness and a sense of justice’. Hewart was also typical in his obvious political bias. One of his sidelines was acting as trustee of a fund organised by the Times ‘on behalf of the police force, in recognition of their services during the General Strike’. Many of the minor orders of judge (magistrates etc) had a direct financial interest in disputes arising out of strikes, especially in the coal industry. In one case in Durham men were supposed to have been sent to prison by a coal-owner. When the Home Office was quizzed about this in 1926 it replied that ‘practically all the Justices had a financial interest in the coal industry’: if they were to be disqualified on those grounds ‘it would be impossible in some cases to fill the bench’. When the Labour MP David Kirkwood was tried for incendiary speech-making in November that year, the chairman of the bench turned out to have been a Conservative candidate in the previous election who ‘not many months ago was saying what he would do with the “Reds” … and how he would deal with them if he had the power’. Mainly this was a class thing. Judges were upper and upper-middle class, just like most government ministers. They shared a common outlook, which explains their willingness ‘in a time of national stress, when the need for judicial vigilance was greatest’, to fall ‘in line behind the administration, in the same way as an army might fall into line behind its generals’. In this area at least, the idea of an ‘independent’ judiciary was a myth.

The object of all this, Ewing and Gearty claim, was quite simply to smash socialism. It was directed as much against peaceful socialist opinion as against views or activities that could reasonably be interpreted as violent or subversive; and much more against socialist than Fascist opinion, when the latter came on the scene. Most Tory Home Secretaries all but acknowledged this, and without any obvious embarrassment. Socialism was clearly seen as a different order of political doctrine from others – it was often referred to as a ‘disease’ – and considered indefensible under Britain’s unwritten constitution. According to Sir William Joynson-Hicks – Home Secretary in the 1920s – the constitution guaranteed only ‘the right type of freedom of speech’. When 12 Communists were convicted at a briefly notorious ‘sedition trial’ in 1925, seven of them – those without previous convictions – were offered freedom if they renounced Communism: the ideology, not their crime. (They refused, and were jailed.) Hundreds of others were fined and imprisoned for, in effect, their left-wing views. Ewing and Gearty believe this extralegal onslaught on the Left was highly effective in the interwar period. It stopped not only Communism but also Labour in its tracks. As a result, it is ‘hard in retrospect to see how the Labour administration of 1945 to 1951 could have emerged other than out of the radical turmoils caused by another savage war’.

Extreme right-wing opinions never attracted the same degree of repression. Communist marches were banned, but Fascist ones given police protection. Communist meetings were infiltrated, but Fascist ones left alone, even when blackshirt thugs were beating up hecklers. The BUF’s headquarters was never raided as the CPGB’s was, and Fascists were never prosecuted for their ideology. Of course there was the Public Order Act of 1936 which banned non-official uniforms (like black shirts), and regulated marches. On the surface that looks like a clear move against the Right. But was it? Ewing and Gearty see something else lurking behind it. The Jarrow marchers were nearing London. ‘The Bill’s main targets may have been the Fascists, but it would never have reached Parliament as a legislative proposal had not the anti-Fascists asserted themselves in typical fashion at a peculiarly opportune time.’ The ‘dreaded unemployed marchers’ were also therefore in the Government’s sights. It knew the Act would be useful against the Left, as it has been on repeated occasions since the War.

Ewing and Gearty are right to regard this period as marking a steep decline in civil liberties in Britain, as indeed it did in most of the rest of the Western and colonial worlds. The main cause was undoubtedly the terror that socialism aroused in the propertied classes, especially after the events of 1917 in Russia and in the light of the final political democratisation of Britain between 1918 and 1928. Mistrust of the great unwashed lies behind most of these developments. Ewing and Gearty probably aren’t altogether fair to this feeling, or fully understanding of the conditions that produced it, though they do try. They even make an attempt at one point to empathise with the Northern Ireland Protestants and their rather different fears. The main purpose of their account, however, is to apportion blame. This is a very judgmental book, full of heroes and villains: the heroes – sadly few of them – are given two little rolls of honour, for crusaders and martyrs, at the end. We have seen already who the villains are: mostly governments and the judiciary, even when the latter appears to be wearing crusader gear. Parliamentarians are the least culpable. They allowed it to happen.

[dropped capital] This is a powerful piece of advocacy. I’d pick Ewing and Gearty for my counsels any day. Historians will have bones to pick with it, particularly in the matter of evidence. Sometimes the sources cited are obviously tainted and self-serving, with partisan speeches and Communist newspapers quoted to illustrate alleged misdemeanours on the part of the authorities. Surely people weren’t imprisoned only for telling policemen that they could be doing something better with their time? And where is the solid proof that the 1936 Act was directed at the hunger marchers as well as the Fascists, beyond the mere chronological coincidence? (Though it may have been.) Historians may also cavil at their estimate of the impact of all this chicanery: for example, that it destroyed any prospect of an effective Labour government without a war. Are laws that powerful? On their main point – that the Rule of Law was an inadequate line of defence for civil liberties at a time when ministers and judges shared an interest in perverting it and were given such wide discretion to do so – there is probably less room for argument. If law students really have been taught otherwise, there can no longer be any excuse for it. This book should be required reading for them, to complement the same authors’ Freedom under Thatcher, which came out ten years ago and argued from the same perspective. (Do they plan to fill the gap? Or will 1945 to 1979 become the new ‘golden age of liberty’ by default?) On the other hand, reading it, one does feel one’s getting just one side of the picture. What we need to hear now is the case – if there is one – for the defence.

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Letters

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.

A.W.B. Simpson
Wingham, Kent

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.

Stanley Best
Chairman, British Legal Association
Broadwoodkelly, Devon

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