Book Reviews

Publication Date01 Sep 2000
Book Reviews
THE RULE OF LAW IN BRITAIN, 1914-1945 by K.D. EWING and C.A.
(Oxford: Clarendon Press, 2000, 451 pp., £55.00)
In their book, Freedom Under Thatcher: Civil Liberties in Modern Britain
(1990), Keith Ewing and Conor Gearty painted a compelling and
provocatively written picture of the decline in civil liberties due to the
repressive legislation and judicial decisions of the 1980s. They wrote in the
conclusion that although advocates of a Bill of Rights for the United
Kingdom were, doubtless, well-intentioned, the best hope for protection of
civil liberties rested, rather, on constitutional reforms such as devolution,
freedom of information, and electoral reform to redress the balance of
political power. Now they have returned to the theme with an important new
historical and socio-legal study of civil liberties in the first half of the
twentieth century that focuses especially on the inter-war years. It is
published against a very different climate – the actuality of devolution shows
signs of breaking the centralist tendencies of the state, freedom of
information legislation is currently passing into law, and human rights are
suddenly fashionable, even for judges. In 1990 they wrote that Britain had
never had a democratic culture and that they were not optimistic about one
emerging in the future. Their recent book, The Struggle for Civil Liberties,
can be seen as in part justifying that historical evaluation. It might also,
recent reforms notwithstanding, be seen as a reminder from a longer per-
spective of the Eeyore theory of rights, and so dampen the current euphoria
surrounding the implementation of the Human Rights Act.
The book deals with the protection of rights of political participation
(especially freedom of association, protest and demonstration) during the
First World War and inter-war period. The Second World War is dealt with
only briefly in the conclusion, but this is material that has been well
covered elsewhere in any event.
Ewing and Gearty justify their choice of
rights in an eclectic introductory chapter. This ranges from criticizing other
authors for failing to delineate the boundaries of civil liberties and to
distinguish them from human rights (an interesting argument in its own
right, drawing on Marx), to introducing familiar criticisms of Dicey’s rule
ßBlackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
1 See, especially, A.W.B. Simpson, In the Highest Degree Odious (1992); N.
Stammers, Civil Liberties in Britain during the 2nd World War: A Political Study
of law and locating the role of the courts and parliament as regards civil
liberties. Predictably, Dicey’s hymn in praise of the common law with its
chorus of equality before the law of the citizenry and officialdom are
systematically discredited throughout. The book would have stood well,
perhaps, without this repeated refrain, which re-emerges in the conclusion
to each chapter and in the final chapter, although its inclusion could no
doubt be justified on the grounds that this was the constitutional orthodoxy
in the period under examination.
The period 1914–1939 provides a rich vein to work: including First World
War pacifism and the wartime internment of aliens, the Clydeside munition
workers’ strike of 1916, the Communist Party sedition trial of 1925, the
General Strike, the official response to the National Unemployed Workers’
Movement and the hunger marches during the great depression, the Inver-
gordon mutiny, and the rise and decline of Mosley and the British Union of
Fascists. Ireland, of course, features prominently with the Easter Rising of
1916, the civil war and the emergency legislation, together with the 1939
anti-terrorism legislation aimed at the IRA. Although the whole book is a
valuable survey of these events, some of this terrain has been covered by
lawyers before, notably the First World War,
the use of emergency powers
during the General Strike,
and the 1939 anti-terrorism legislation.
the greatest novelty and interest of this account lies, therefore, in the
discussion of the inter-war period.
To civil liberties lawyers the 1930s are probably best known for three
judicial decisions and two statutes.
These well-known judicial decisions,
giving the police the right to attend and to break up public meetings and to
seize documents when making an arrest, are dissected and put into a wider
context. However, to say that Ewing and Gearty ‘contextualize’ these
developments would be a travesty of what is fine survey of political and
social history. The account here is a rich one, drawn from an impressive
range of sources, especially from the official files (where these are open,
although many are not), Parliamentary debates and, extensively, from
contemporary newspaper reports, as well as conventional legal sources.
A short review is inadequate to do justice to the full gamut of repressive,
abusive and, at times, unlawful, state practices documented but some of the
2 Dicey’s Introduction to the Study of the Law of the Constitution was published in
3 G.R. Rubin, War, Law and Labour: the Munitions Acts, State regulation and the
Unions, 1915–1921 (1987); G.R. Rubin, Private Property, Government Requisition
and the Constitution 1914–27 (1994).
4 G. Morris, Strikes in Essential Services (1986).
5 O. Lomas, ‘The Executive and the Anti-Terrorist Legislation of 1939’ [1980] Public
Law 16.
6Duncan v. Jones [1936] 1 K.B. 218; Elias v. Pasmore [1934] 2 K.B. 164; Thomas v.
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