The tendency to restrict civil liberty in Great
Britain, which has manifested itself with increasing
clarity in the last two decades, is not surprising when viewed in its historical setting, but it is not to be accepted with complacency. When a prominent member of our governing class says privately: “Do not be alarmed if you hear that civil liberties are being curbed for a time in England,” he is saying something which need not alarm his own class, but which should confirm the worst suspicions and anxieties of the general mass of the people. Such a revelation of the inclinations and intentions of the governing class makes it more important than ever, in this period of political and economic emergency, to have a clear view of the situation, with a view to an intelligent defense of our liberties. To that end, one must have a clear conception of the subject of discussion. Although it would be wearisome to attempt to add one more to the many philosophical definitions of liberty, it is as well to state the essence of the rights which we seek to defend.
Our civil liberties, then, consist in essence in the right to hold, express, and act on our own views, without being exposed to crippling legal or social sanctions for doing so, however few the people who share our views and however great the resentment of those who do not; for example, the right to advocate Communism or reaction, Christianity, Buddhism or atheism, republicanism or monarchy, peace or war, prohibition or the unrestricted sale of liquor; the right to join trade unions, the right to remain out of prison unless proved guilty of crimes properly defined by law and investigated by regular judicial procedure, the right to be politically active or to exercise the franchise without losing one’s job or one’s cottage; the right to immunity of correspondence. Now, all such liberties and rights, it is plain, must be subject to some limitation; for example, no state, at any rate no civilized state—and it will save circumlocution if I say at once that, much as I love the mass of the German people, I do not regard the Germany of the moment, the Third Reich, as a civilized state—permits the advocacy of individual murder, and no state that hopes and intends to survive permits the direct advocacy of its own destruction by force.
In this field of conflict or possible conflict between generally approved rights and accepted limitations, the real difference between the freer peoples and those less free, and between the freedom of the same people at different stages of its development, depends directly on the position of the frontier line between what is permitted and what is not. The worst of civilized governments permits some freedom; the most enlightened of them imposes some limitation. The significant comparison between two countries, is, in brief, where they draw the line; the index of progress or reaction in any one country is whether the line is moving up or down. And the sad and true thing about England is that the line is moving steadily the wrong way.
This, as has been said above, is not surprising. In countries of great class distinctions — distinctions which, unless the poorer classes have no courage or no intelligence, must involve class conflicts as well—the growing economic difficulties of the present age of decay and change, and the growing danger of titanic general war, must necessarily make the governing class ever more anxious, more illiberal, and less inclined to respect the right to advocate measures which may threaten its powers and privileges. In Great Britain, all those conditions are present. The distinctions of wealth and power are grotesque and horrible, the poorer classes (even if they have too much patience) have both courage and intelligence, economic difficulties are growing, a world war seems ever closer; and so it is inevitable that the ruling class seeks to “tighten up” and to add to the restrictions on liberty. It feels that it can no longer run the risk of leaving economic and political agitation free to run its course, since it becomes increasingly clear that that course will probably be fatal to its power. The progressive forces ought, indeed, to welcome the fact that the ruling class is seeking to restrict their liberty, for if it were not doing so the inevitable inference would be that it regarded them as too feeble to constitute any danger.
What are the main phenomena of the untoward developments in the field of civil liberty? What are the new limitations? They are partly potential — weapons that may be used against the progressive forces as soon as the conflict sharpens—and partly actual—weapons already in daily use; and they consist in alterations of the statute law, in the development of judge-made law, and in changes in the attitude and conduct of the Government in general and the police in particular. The field is large, but some examples can be given.
The actual alterations in the law are at once more striking and more numerous than would readily be believed by those who adhere to the complacent view that England is still basking in the sunshine of freedom. Perhaps the most important alteration, although not the subject of the most lively discussion, is the Emergency Powers Act, passed in 1920. This Act, which can be brought into operation at any time the Government (which cannot be checked or questioned in the courts) believes “that any action has been taken or is immediately threatened by any persons or body of persons of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community of the essentials of life,” provides in effect for the whole government of the country by means of regulations passed behind the back of Parliament; the only things that cannot be done by these regulations is to impose military or industrial conscription, to sentence people without trial, or to make it criminal merely to take part in a strike or peacefully to persuade other people to do so.
This statute is obviously designed to break any widespread strike, or civil unrest; it was actually employed during the short general strike of 1926. (One person was sentenced to imprisonment, for example, under regulations then made under the Act, for saying: “The Government is out to crush the workers.”) Its effect is summarized fairly enough in an anonymous book published in 1938 under the title “Justice in England”:
It does not require much imagination to see that any reactionary Government in any time of industrial tension can, if so minded, in due form of law . . . virtually do away with the whole protection of the existing law and the courts, and establish a complete military dictatorship.
Almost as important, and of more frequent and general application in practice, is the Trade Disputes and Trade Unions Act, 1927, which was passed at a time when the trade unions and the working-class movement generally had been weakened by the general strike and the prolonged coal stoppage of 1926, This statute made very grave alterations in the right to strike; it is difficult to interpret, but it seems pretty clear that any substantial “sympathetic” strike is illegal, and would involve any trade union supporting it in the payment of damages. This is by no means the only handicap which the Act lays upon trade unions, but it is pretty serious, for there are many grievances which cannot be remedied without stronger pressure than a strike confined to one section of an industry can bring to bear, and the Act thus deprives many groups of workers of the only lawful weapon they have.
Another retrograde step in recent legislation is the Incitement to Disaffection Act of 1934. This Act is perhaps more significant for what it would have done had it been passed in its original form than for what it actually does. Its history is remarkable. The governing class has, of course, always been peculiarly sensitive to any attempt at any form of political propaganda among the rank and file of the armed forces; recruited from the working class and yet destined to be used against it in any civil strife, the armed forces are at once the strength and the weakness of the ruling-class power over the country; strength, because so long as they can be relied upon to obey the order to shoot, the ruling class is fairly secure; weakness, because the moment they can no longer he relied upon the ruling class is, in terms of force, virtually defenseless. Small wonder, then, that the type of mind which looks to the weapon of the criminal law to assist in “keeping people in their place” is attracted by sweeping legislation for the restriction of political propaganda among the troops. What is interesting is to observe that, to judge by its conduct, the Government expected to find respect for civil liberty in 1934 lower than it had been in 1797, when the Incitement to Mutiny Act, was passed, making it an offense to “endeavor to seduce anyone serving in His Majesty’s forces from his duty and allegiance.” That Act was passed under the influence of the excitement aroused by the famous “Mutiny at the Nore,” and at a time of great unrest, both international and industrial; but the not very liberal Government of the time did not take courage to make it a permanent statute, passing it only as a temporary measure, and it was not made permanent until twenty years later. Of recent times (prior to 1934), this Act was used from time to time, without apparent difficulty, to send to prison for substantial periods persons who distributed left-wing political literature to the armed forces; but suddenly, and for no particular reason, in 1934, at a time when the “National” Government, elected on the wave of slump panic in 1931, had not been in power long enough to have seriously endangered the peace of the world by its weak flirtations with Fascist powers, the bill which ultimately became the Incitement to Disaffection Act was introduced. In its original form, the bill was so wide and indiscriminate in its provisions that suspicion was at once aroused that the Government expected an armed revolution in the next few weeks. To quote the criticism of C. E. M, Joad, in “Liberty Today,” written when the bill was still before the House of Commons:
The bill, as originally drafted, made the mere possession of a document, irrespective of any intentions on the part of the accused, and without reference to the manner in which he acquired it, an offense. The only defense was to show “lawful excuse” for its presence on his premises. It was not necessary that the accused should be a seditious person himself; it was sufficient that he should be a person on whose property the police had found a document which a magistrate held to be seditious. To assist them in finding such documents the police are equipped by the bill with rights of search so drastic that only a national emergency could possibly justify the interference with privacy and liberty. The alleged object of this bill is to prevent the dissemination among soldiers and sailors of seditious pamphlets. It is, however, so wide in its provisions as to constitute the most serious threat to liberty that has been known in England for two hundred years. As a result of criticism in the committee stage the bill was subsequently amended in certain important particulars. The fact that it should have been introduced is, however, a straw which shows the direction of the wind; and the direction is assuredly an evil one. That people should be punished for illegal acts is a sound principle; that they should be punished because the executive holds that they may be presumed to be about to commit an illegal act is a thoroughly bad principle. The difference between the two principles is the difference between the rule of law and the dictatorship of the executive. Yet it is this second principle that the bill embodies.
The one encouraging feature of the bill’s history was that it rallied every freedom-loving person in England into a remarkably vigorous united fight against the bill. Quakers and pacifists, Liberals and some genuine old-fashioned Conservatives, Socialists and Communists, all joined in a furious battle. Great public meetings were held, ministers were bombarded with attacks from inside and outside the House of Commons, and most of the more objectionable parts of the bill melted away before it reached the Statute Book; but even so, it adds something to the provisions of its objectionable ancestor, the Act of 1797. In its final form, on the Statute Book, it makes it an offense maliciously and advisedly to endeavor to seduce any member of His Majesty’s forces from his duty or allegiance. (The older Act says duty muL allegiance.) It then creates an additional offense, that of having in one’s possession or under one’s control, with intent to commit or to aid, abet, counsel, or procure the commission of the offense above-mentioned, any document of such a nature that the dissemination of copies among members of the forces would itself constitute the main offense. It goes on to give power to issue search warrants for premises where it is reasonably suspected that evidence may be found of the commission of an offense under the Act. Even in its emasculated form, the Act provides the police in any time of tension with quick and convenient weapons for harrying the Left.
Perhaps the most disquieting thought that is brought to one’s mind by the memories of that struggle is the feeling that public opinion has deteriorated so gravely in the five years that have since passed that it would now probably be relatively easy to put across a similar attack on civil liberty without arousing much public indignation.
These are not the only, if they are the most striking, of legislative encroachments; but it is now time to think of the Government and particularly of the police. (In England, the police in Greater London are directly under the Home Office; in the rest of the country they are under the councils of the counties or of the larger towns.) Here, too, the situation has considerably worsened. A volume of evidence establishes that in recent years, both in London and elsewhere, the police authorities, helped by some curious decisions of the courts that extend their powers, have become increasingly intolerant of normal left-wing political activities, such as the holding of public meetings in the streets, and—what is worse —have repeatedly shown discrimination in favor of Fascists. In one instance that became notorious, a police officer, who may be presumed to have been acting on higher instructions and was certainly not punished for what he did, approached a perfectly lawful left-wing meeting, removed the speaker, dispersed the audience, and installed a Fascist meeting in its place; when the matter was taken up in the House of Commons, the Home Secretary made a virtue of apologizing! It is not surprising to learn that in the twelve months ending June, 1937, there were 320 prosecutions for alleged offenses in connection with public meetings or demonstrations, and that there were more prosecutions in the fifteen years following the “end” of the Great War in 1919 for the expression of opinions disliked by the Government than in the fifty years preceding the outbreak of that war.
In one or two recent cases, moreover, especially in one that resulted in various police officers having to pay damages for a completely illegal seizure of documents belonging to the National Unemployed Workers’ Movement on the occasion of the arrest of one of its officials for an alleged seditious speech, it was made quite plain that the police did not bother to comply with legal restrictions on their searches when left-wing politicians were involved. The respect for “law and order,” to which so much importance is attached by our Government, seems to be regarded with contempt by the police in such cases.
In many smaller but not unimportant fields, a similar deterioration is evident; the Government scarcely troubles to conceal the facts that the correspondence of many left-wing people is regularly read as it passes through the mails, and that their telephone conversations are overheard and recorded. The unofficial censorship of films keeps in close touch with the Government, and cuts or rejects films which constitute unwelcome criticism of leading ministers. The indirect and “friendly” censorship of the press by Government departments is constantly increasing in scope and frequency of application. The threat to use, and even the actual use of, the Official Secrets Acts (which are intended to deal with espionage but are so widely drafted as to cover a very extensive range of harmless, or socially useful, activities) to repress legitimate criticism of the Government, may have been checked recently as a result of certain clumsy activities of the Attorney-General (their very clumsiness being in itself evidence of the growing disregard of the Government and its members for the civil liberties of their critics); but that such a use of these Acts should have been attempted is one more significant sign of present tendencies.
It is natural enough, if a great misfortune, that at the moment of writing—whatever may be the position when this article comes to be read—we have a Prime Minister, Neville Chamberlain, of a naturally autocratic temperament, who seems to suffer from an ever increasing resentment of criticism, and who has shown again and again both in speech and action an affection for the Fascist powers and a dislike of freedom of speech which his predecessors either did not share or had the subtlety to conceal. He is not content to follow the clever example of his predecessor Baldwin, who, by adroit half-excuses for the (as he alleged) slowness of movement and uncertainty of democratic government, succeeded in conveying the suggestion that dictatorship was a better form of government and civil liberty a handicap. Chamberlain is much franker and cruder. When, at the beginning of October, 1938, towards the end of the Berchtesgaden-Godesberg-Munich crisis, he at last allowed Parliament to meet (after delays which he based on the thoroughly illiberal ground that he could not be interfered with when carrying on important negotiations), he rebuked the leader of the Opposition for describing Munich as a “defeat,” saying that even if he thought it he ought not to “foul his own nest” by saying it, for “they did not do that sort of thing in the totalitarian countries”; and in his first speech in Parliament, after Hitler had seized the whole of Czecho-Slovakia in March of this year, he seemed anxious to defend Hitler against any charge of breach of faith. True, he soon changed his tune; but that was due to the indignation of his own supporters.
The general deterioration is not of course wholly or mainly due to Chamberlain; it is rather the almost inevitable result, as is Chamberlain himself, of the temporary period of decay through which we have to pass on our way to a better system. Nevertheless, the position is a serious one, not to be ’ accepted with resignation, but to be fought vigorously. It is particularly important to fight it, because, as inevitably happens in such stages of history, the restriction of liberty, which tends for the moment to prolong the existing system, comes at the very moment when that system ought to pass and is bound to pass. And it is just at such a moment that the maximum freedom of controversy and advocacy is a vital need, not merely because all unnecessary restriction of free discussion is evil, and merely drives opposition underground to work with underground weapons, but even more vitally because the maximum of public interest and intelligence should at this precise moment be brought to bear to ensure not merely that the old system should not be “too long a-dy-ing” but also that the system which takes its place shall be the best, and shall be received with the utmost public understanding and goodwill. There never was, surely, a time when it was more important that all of us, but above all the progressive and liberal among us, should have the greatest possible freedom to speak, to write, to argue, to act; for never was there more to be done, and to be rightly done. Our political liberty, it may be true, is incomplete and onesided without economic liberty; but it is of great value both for its own sake and because, if it be lost, economic liberty cannot well be achieved. The more it is threatened, the more it is clipped, the more vigorously must it be defended.