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The Struggle for Civil LibertiesPolitical Freedom and the Rule of Law in Britain, 1914-1945$

Keith Ewing and Conor Anthony Gearty

Print publication date: 2001

Print ISBN-13: 9780198762515

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198762515.001.0001

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The National Unemployed Workers’ Movement

The National Unemployed Workers’ Movement

(p.214) 5 The National Unemployed Workers’ Movement
The Struggle for Civil Liberties

K. D. Ewing

C. A. Gearty

Oxford University Press

Abstract and Keywords

This chapter discusses the protestion that was engendered by the decisions made by the government during the 1930s after the start of the national economic collapse. This event led to a period of hardship of extraordinary breadth and severity, and it was worsened by the exceptionally harsh and blinkered reaction to the crisis by the government. This discussion includes sections that trace the origins and rise of the National Unemployed Workers' Movement (NUWM) and the response of the state to its activities.

Keywords:   protest, government, national economic collapse, 1930s, reaction, hardship, origins, National Unemployed Workers' Movement, NUWM, state

The scale of the national economic collapse that occurred at the start of the 1930s led to hardship of extraordinary severity and breadth. The situation was greatly worsened by the exceptionally harsh and blinkered reaction to the crisis displayed in Autumn 1931 by the incoming National Government. It is with the protest engendered by the decisions taken by that administration that this chapter is primarily concerned. The worst consequences of the National Government's rigour on taking office in 1931 were imposed upon the very poor and the unemployed, and it is with the mass movement of popular protest that was sparked off by these severe cutbacks in welfare provision that our chapter begins. This takes us once again into a discussion of the contribution of the Communist Party to the development of civil liberties law in Britain, since it was Party members who were mainly responsible for the enormous success enjoyed by the National Unemployed Workers’ Movement (NUWM), particularly in the first half of the 1930s, with its ‘hunger marches’ and vast petitions of Parliament. The first and second parts of this chapter are concerned with tracing the origins and rise of this movement and with the State's response to its activities. The questions raised related mainly to the freedoms of assembly and association, though it was a 1920s-style police raid on the headquarters of the Movement that was to lead to the famous decision of Horridge J in Elias v Pasmore.1 As we shall see, the reaction of the government, the police and the courts to the NUWM shows how far from reality was the nation's ostensible commitment to liberty, at least as far as the communication of radical views was concerned.

The hand of the Communist Party, and the opportunity afforded by the economic crisis of 1931, are also to be seen in the second great civil liberties issue of the early 1930s, the enactment of the Incitement to Disaffection Act 1934. The decision by the incoming National Government to impose pay-cuts in the public service in addition to the cutbacks in welfare led to general discontent, most seriously in sectors of the armed forces. After the widely publicised ‘Invergordon Mutiny’ involving service members on many of the ships of the Atlantic fleet, (p.215) which occurred in September 1931, the government was persuaded that it was the Communist Party which had been largely responsible, a view from which the Party did not energetically dissent. In fact, the Party's campaign of inciting disaffection in the armed forces had been ongoing for some years without any great success before Invergordon, and it was not the primary cause behind the short-term revolt there in any event. But Invergordon inflamed the government into further and more strenuous action against a Party which, despite all the measures taken against it in the 1920s, had refused to disappear but had instead sought to attack the most sensitive point in the State's armoury: the willingness of the armed forces to defend the power structure at the apex of which the executive stood. Such anxieties led eventually to the Incitement to Disaffection Act 1934, and it is with the origins and enactment of this hugely controversial piece of legislation that we are concerned in the third and fourth parts of this chapter.

The final two sections of this chapter take us back to the NUWM and to its renewed street protests in the mid-1930s against further State efforts to cut back on the entitlements afforded to the unemployed and their dependants. It is at this point that we see the emergence of another organisation of great importance. The National Council for Civil Liberties (NCCL) was formed primarily in an effort to control the excesses of police violence that had invariably accompanied NUWM protest on the streets, but in its first year as the then Council for Civil Liberties it had also enjoyed great success in its parliamentary campaign against the Incitement to Disaffection Bill. The organisation's non-revolutionary personality asserted itself in its confidence that the rhetoric of the Rule of Law could be deployed via the courts to curb executive excess. This belief led to the famous case of Duncan v Jones 2 which like Elias v Pasmore before it grew out of the State's attempt to hinder the efforts of mainly Communist Party members to agitate on behalf of the unemployed, a campaign of control that had reached its height late in 1931, when a clampdown had been imposed on political speech outside employment exchanges in London. Both Elias and Duncan added to the ordinary common law, just as the Incitement to Disaffection Act 1934 was a permanent addition to the stock of ordinary legislation. The same trend towards the expansion of the ordinary law is also evident in the chapter that immediately follows, when we trace the rise of fascism in the mid-1930s and the enactment of a new national Public Order Act 1936.

(p.216) The National Unemployed Workers’ Movement

Even before the National Government came to power, the level of unemployment benefit had been ‘the central feature of an intense debate about public finance’ which had led to the disintegration of the previous Labour Administration.3 The MacDonald Government of 1929 to 1931 had been notably more generous than its predecessors as far as the provision of State aid for the unemployed had been concerned, and this meant that in the first half of 1931 the value of benefits had sharply increased. The rises were widely believed to be unsustainable at a time when financial stringency was thought everywhere to be required. It is easy in retrospect to be more relaxed about the figures than were the politicians of the day. The controversial benefits in question amounted in total to no more than about seven per cent of all public spending and we now know that it was likely that even this seven per cent benefited the economy by raising average consumption at a time when demand was heavily constrained. But the mood of these pre-Keynesian times did not allow for such far-sighted rationality. Starting in September 1931, the National Government introduced a series of measures designed to curb spending in this area and thereby (so it was believed) to compel the economy to return to an even keel. The National Economy Act 1931, which received the Royal Assent on 30 September 1931, empowered the executive to make Orders in Council for ‘the purpose of effecting economies’ in the fields of education, national health insurance, police, unemployment insurance and roads. Benefits were reduced and a ‘family means test’ was introduced.4 Regulations were implemented, the effect of which was to deny benefit to many married women by ignoring their premarital national insurance contributions. Applicants for the dole were henceforth to be means-tested by local poor law authorities, with the savings as well as the income of entire households being taken into account. The result was that the income of relatives and even of lodgers could now be deducted from benefits.5

The cumulative effect of these changes was greatly to impoverish the already desperately poor, and to give a new lease of life to the National (p.217) Unemployed Workers’ Movement. The organisation had been formed in April 1921 at the International Socialist Club in London as the National Unemployed Workers’ Committee Movement, becoming the NUWM in 1929. Initially the movement functioned as an amalgam on a national level of the seventy to eighty committees of unemployed that had sprung up across the country after the war.6 The organisation's purpose from its inception was to campaign on behalf of the unemployed, and it was established in the aftermath of a shocking episode in October 1920, when some 20,000 unemployed marchers had been indiscriminately set upon by the police in ‘the Battle of Whitehall’.7 Led by skilled engineers and ‘intimately connected with the Communist Party’,8 the future NUWM organised the first national hunger march to London in Autumn 1922. Despite almost hysterical denunciation in Parliament and the press,9 an estimated crowd of some 50,000 turned out,10 and the protests continued on and off until the following January, with a further high-point being ‘a day of national demonstration…known as “Unemployed Sunday” ’ which took place on 7 January.11 This was to be something of a high (p.218) point in the early phase of the organisation's history, with no further large-scale marches to London taking place until 1929, and even then the two that occurred in that and the succeeding year were small, tame affairs.12 It seemed that most potential demonstrators were prepared to place their trust in the then still functioning minority Labour Government.13

The mood changed almost immediately after the formation of Ramsay MacDonald's new National Government, with the NUWM now receiving a large influx of members and greatly increased support. There were at this point nearly two million unemployed workers from whom the organisation could draw support. The protests began with the resumption of Parliament after the 1931 Summer recess. A huge crowd which had congregated to view the flood-lighting around Westminster found itself joined by a gathering of about 900 or so unemployed protestors who proceeded to sing and to shout slogans abusive of the new government. Mounted and foot police promptly swooped on this group, separating it from the rest and driving it away from the larger crowd. To complaints in Parliament about this ‘wholly unnecessary and most provocative display of force’,14 the newly appointed Home Secretary Sir Herbert Samuel responded that the ‘crowd had to be dispersed in order to maintain the public highways for the use of the population in general’.15 When one MP interjected that the Home Secretary had spoken ‘tonight the comfortable words which were given to him by superintendents and chiefs of police’,16 Samuel fell back on the annual sessional order, passed by Parliament almost a year before, on 28 October 1930, the intention of which was to secure free passage around the House when Parliament was in session.17 There was however no answer forthcoming to the assertion of another Member that ‘unemployed men and women have as much right to be in that crowd as anyone else’.18 The mood of many members of the House was one of anxious foreboding as to the (p.219) way the police would handle the protests that were bound to take place as the true effect of the new government's policies began to be felt.

Given that Britain's commitment to the right to demonstrate was then widely perceived within the country to be both historically rooted and absolutely genuine,19 it is quite remarkable how little protection the law actually afforded the unemployed during the Autumn of 1931. Time and again police assertions that they had been subjected to violence were unquestioningly believed by the authorities and accepted as justifying the most extreme and at times brutal counter-measures. The law was largely irrelevant to these police actions. Insofar as it did impact on events, the Rule of Law functioned as a powerful enemy against the expression of the views of the NUWM and its supporters, with local bye-laws, local Acts of Parliament, the sessional order, the binding over jurisdiction available to the justices, and the power of the police (both in relation to arrest and in respect of the power that flowed from their apprehension of breaches of the peace) all conspiring to make the effective communication of their point of view next to impossible. Typical in this respect was the arrest, on 3 October 1931, of one of the NUWM leadership, Wal Hannington, who was subsequently charged with inciting breaches of the peace. After a finding of guilt, the Bow Street magistrates made a binding over order, with two sureties required of £100 each. When Hannington refused to come up with the sureties, he was imprisoned for one month.20 Thus could a key activist be almost effortlessly removed from the scene, a pattern that we shall see repeated during many NUWM campaigns.21 It was in the twilight world of unreported cases and barely noticed procedural ruses and obscure laws that the flimsy rhetoric of a nation's largely only theoretical commitment to political (p.220) liberties came up against the immovable reality of State repression. In 1932, this became clearer than at any time since the General Strike.

The year started with a ‘national day of struggle’ against both unemployment in general and the reviled means test in particular, set for 23 February. The day was marked by high tension across the country, particularly in London, where police ‘guarded the entrance to the House of Commons while uniformed and plain-clothes police patrolled the streets and broke up groups of demonstrators’.22 On the following day, the Daily Sketch devoted its front page to a graphic photograph of running battles between police and demonstrators under the headline ‘30 hurt in street battle’.23 In the Spring and Summer months, violent clashes took place between the police and unemployed protestors in Merseyside, Manchester, Birmingham, Cardiff, Coventry, Nottingham, Oldham, Porthcawl, Stoke, Wigan, Preston, Bolton and Belfast. After a couple of encounters with unemployed protest, the Bristol Chief Constable began privately to agitate for an end to all NUWM-inspired demonstrations.24 In September, the tension increased even further with running battles between police and protestors, hundreds of arrests, and many serious civilian injuries in Birkenhead and Liverpool, where the police use of ‘intimidatory violence and arrests…reached an extraordinary pitch’.25 Even bloodier scenes occurred in Belfast in the second week of October where two workers were shot dead by police.26

This was the atmosphere in which the NUWM set about planning that year's national hunger march, which the organisation scheduled to begin on 26 September and to arrive in London just before the day fixed for the opening of Parliament, 27 October, with a view to the presentation of a petition. In her detailed study of the period, Morgan (p.221) describes the extensive efforts that the authorities made to undermine its success:

The Ministry of Health told its local authorities to pursue a tough line with the marchers, while the Ministry of Labour gave instructions that persons taking part in the march were not to be given facilities to draw unemployment benefit at Unemployment Exchanges which they might pass en route. The Home Office primed the local police with details of the march programme, routes, and assembly points. It added, as usual, that ‘strict insistence on the conditions attaching to the grant of relief to the marchers may give rise to disorder’. The police must, therefore, prevent any breaches of the peace, especially near casual wards. The Home Office itself had been fully warned, through ‘civil security intelligence’, about the activities of the unemployed, the Communists, and the League against Imperialism.

The Metropolitan Police made particularly careful preparations for the marchers’ arrival and stay in London. In August 1932 efforts were made to ascertain the names of local leaders; subsequently, particulars of the more notorious of them, with photographs and details of any previous convictions, were forwarded to the divisions. Both the Special Branch and police informers were active at an early stage. Several of these had infiltrated the council of the NUWM and NUWM branch meetings.27

Local police chiefs in London were reminded by Scotland Yard of section 21 of the Metropolitan Police General Orders, dealing specifically with meetings and processions. The instructions laid down there were more reminiscent of a military campaign than of policing a democratic society:

161 Meetings etc. likely to become dangerous should be carefully watched and the leaders identified if possible with a view to obtaining proof of the same persons acting as ring leaders on various occasions. Notes should if possible be made of the speeches either by uniform or plain clothes constables who will prepare a brief report quoting any inflammatory language used. In special cases authorised by the Commissioner short-hand may be employed but not otherwise.28

The instructions also reminded officers that:

Persons guilty of violence or of uttering threats should be at once arrested and charged with one or more of the following offences: Assaulting or resisting or obstructing police on due execution (sic) of duty (Offences against the Person Act 1861, Section 38). Using threatening, abusive or insulting words or behaviour (p.222) with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned (Metropolitan Police Act 1839, Section 54(13)). Wilfully obstructing the free passage of any highway (Highways Act 1835, Section 72).29

The deployment of these various laws, together with the desperation of some of the unemployed and the rigorous way in which the police were clearly prepared to respond to little more than a hint of trouble, guaranteed that October 1932 would not be trouble-free. Serious clashes between the unemployed and the police in Liverpool, Birkenhead and North Shields30 were matched by further violent disorder in South London, when the police dispersed a crowd of 10,000 which had gathered to support an NUWM deputation to the London County Council. The trouble was so severe in the London episode that it was raised the following evening in an adjournment debate in the Commons by no less a figure than the leader of the Labour Party, George Lansbury. The veteran activist concluded his moving and emotional speech by going beyond the bloody events of the night before to call on the government to ‘organise hospitality for [the marchers, who were shortly to arrive in the city] and send them back home with a message that the damnable means test is to be revoked, and that you are going to treat them not on a uniform basis of the lowest level to which you can cut them down, but as human beings, as the victims of a system which…is responsible for their condition’.31 After such a flight of rhetoric, it must have seemed rather beside the point even to his own supporters for the Home Secretary to have responded by asserting yet again that it was ‘quite clear…that the National Unemployed Workers’ Movement, a Communist organisation, or in the main, a Communist organisation, has been at the root, and has been the instigator, of these difficulties’.32

Given this background, it was not surprising that the arrival of the marchers in London, on 26 October as scheduled, should have led to more trouble, though who was responsible for what happened was the subject of bitter dispute. The arrangement that had been made was for all the marchers to converge on Hyde Park, where a welcoming demonstration (p.223) had been organised by the NUWM. A contemporary account records what happened on the Edgware Road after the protest in the Park had got under way:

There was a good deal of booing and banter going on between some of the unemployed gathered on the pavements and the police, when suddenly, without the slightest provocation and for no apparent reason, the mounted police started to race up and down the roads flourishing huge staves in their hands, smashing their way in and out amongst the traffic, scattering people gathered on the pavements and even pushing and heaving their horses down upon the innocent citizen who happened to be just going about his ordinary business. From Edgware Road they galloped their horses into the Park, still brandishing their staves at people….

Up to this the marchers and the unemployed had behaved in an orderly manner but it was not to be wondered at that a few of them immediately lost their temper and seized a few branches of trees lying about and flung them at the police…The police immediately lost complete control of themselves and proceeded to sweep their horses into the crowds, slashing out indiscriminately both at spectators and marchers. Their behaviour fell a long way behind even the disgusting conduct of the Indian Police, who freely baton down the followers of Mr. Gandhi.33

The Daily Herald reported that ‘[s] creaming women fled before the prancing horses, windows were smashed, and stones, bricks and other missiles were hurled about’.34 Even the Home Secretary Sir John Gilmour was forced to concede that there had been a ‘general melee, lasting about twenty minutes’, though he predictably claimed that the police, both ‘mounted and foot’, had been ‘obliged to draw their truncheons’ only after ‘stones and bolts’ had been thrown in their direction, albeit hailing mainly from ‘a number of men who were straggling in the rear of the procession’. Sir John ended his Commons’ statement on the incident by issuing a warning to ordinary members of the general public that by their presence ‘they contribute [d] greatly to the difficulty of maintaining order both in the streets and the parks by assembling in unnecessary numbers and swelling the crowds’.35 Given that on the government's own figures fifty-eight of the demonstrators had been injured (as against nineteen police officers), it may well be that the casualty list would have been (p.224) much higher, at least on one side, had not the general public been around to impose a restraining influence.

Further trouble erupted three days later when a meeting in Trafalgar Square attended by a crowd estimated by the government at about 8,000 provoked a police response which involved the use of horses and truncheons to clear the streets.36 The culminating event of the whole campaign was scheduled for the following day, 1 November. This was the date on which the NUWM planned to present Parliament with its petition against the means test, signed by no fewer than one million people. Meetings were arranged in about ten locations in London, and a huge protest was held at Clerkenwell Green, from where it was proposed to send a deputation to present the petition to Parliament. Members of the government were determined that the petition should not be accepted, and the police went to extraordinary lengths to prevent the deputation getting through. The whole of Parliament Square was sealed off37 and so many reinforcements were drafted into the area that ordinary policing for the rest of London had to be left to the special constabulary. A leaflet issued by the NUWM calling on the police not to turn on the demonstrators so inflamed the Metropolitan Police Commissioner Lord Trenchard that he gave instructions that anybody seen distributing it was to be arrested.38 The NUWM petition itself was seized ‘on the instructions of the local Superintendent of Police, as a precautionary measure in view of imminent disorder’.39 Unsurprisingly, this police action caused that which it was (supposedly) designed to prevent. After the confiscation, disorder quickly broke out across Trafalgar Square, spreading into Whitehall and Victoria Street. The Daily Herald reported how a huge force of police then moved to clear the crowd (by now estimated to be between 20,000 and 30,000 people), with mounted and foot-patrol officers carrying out an operation of almost military precision.

Removing the NUWM Leadership

The government was beginning to lose patience with the hunger marchers, with the Home Secretary being frequently required to go (p.225) down to the Commons to fend off allegations of police brutality. The newspapers were also piling pressure on Gilmour, with one Daily Telegraph editorial on 29 October 1932 identifying Wal Hannington as the cause of all the trouble and calling on the ‘authorities not merely to take precautions to deal with the Marchers when they arrive but to put an end to the Marches themselves’. The newspaper went on to assure the Home Secretary that ‘[s] entimental weakness in handling this situation [would] only issue in more disturbances and a longer list of casualties’. On 1 November, the same paper's editorial was headed ‘Why Tolerate These Demonstrations?’40 Responding to the concerns of a Conservative colleague about the continuing protests, Sir John declared that ‘the House and the country realise [d] the iniquity of these proceedings and we will consider any means by which we can bring them to an end’.41 In fact the State had already begun the process of reining in the NUWM,42 which according to Bowes was being watched ceaselessly by the Special Branch, its leaders shadowed, mail intercepted and speeches recorded, in a manner with which we have become familiar.43

Just before the 1 November protest got under way, and on the eve of the remarks of the Home Secretary quoted above, the police had raided the headquarters of the NUWM. The purpose of the raid was ostensibly to execute an arrest warrant against Wal Hannington and he was duly arrested. But the police, who had waited patiently until Hannington was in the building before making their move, also took the opportunity to cart away a vast quantity of documents relating to the business of the Movement. According to Hannington, an attempt had been made the previous day by an agent provocateur to pass to him a plainly incriminating document, and it may have been this evidence that the police had been so keen to find. In fact Hannington had burnt the material on receiving it from an innocent third party.44 The immediate effect of the raid was the jailing of Hannington, first on remand and then on 8 (p.226) November for a period of three months, on a charge of attempting to incite disaffection among the police in contravention of the Police Act 1919.45 The evidence was based on certain remarks in Hannington's speech at Trafalgar Square, made two days before his arrest. The case was heard by the celebrated Bow Street Magistrate Sir Chartres Biron, a man whom we encountered in Chapter 4 above and who was distinguished for his unqualified commitment to public tranquillity.46 A few days later, the Chairman of the NUWM, Sid Elias (who had taken over responsibility for the petition in Hannington's absence) was also proceeded against on a charge of soliciting and inciting two of his colleagues (Hannington and another) to ‘cause discontent, dissatisfaction and ill-will between different classes of His Majesty's subjects and to create public disturbance’. The evidence against him was collated from the mountain of material seized by the police on 1 November.47 He was duly jailed for two years.

It may well be that, by the end of November, Sir John and his colleagues in the National Government felt entitled to relax, believing that the NUWM threat had been finally seen off by the infinitely superior forces of coercion that they had deployed to their advantage. If so it was a misplaced hope, as was made abundantly clear in a letter sent to the Prime Minister on 9 December. Hannington and Elias, together with the NUWM treasurer Tom Mann and its secretary Emryhys Llewellyn, announced the Movement's intention to invite the Prime Minister to receive a further petition (also signed by a million people) from a new deputation on 19 December. The official reaction to this unwelcome news seems to have been one of panic. Ignoring (or perhaps forgetting) the constraints that usually inhibited any public exposure of the intimacy of the connection between politics and the law, the Home Secretary later admitted to Parliament that what he then did was to draw the attention (p.227) of the two men (Mann and Llewellyn) ‘in the ordinary course to the Director of Public Prosecutions who, after considering the available evidence and with the approval of the Attorney-General, applied to the chief magistrate [Sir Chartres Biron] for process against the persons concerned’.48 In the circumstances it was hard to resist one MP's assertion that these ‘proceedings [were] political prosecutions’.49 Indeed, no allegations of substantive offences were even attempted. Instead, it was said that as the two men were planning to organise ‘mass demonstrations which were calculated to cause breaches of the peace and breaches of Section 23 of the Seditious Meetings Act, 1817’, it was therefore necessary to issue warrants ‘to bring these persons before the court to show cause why they should not be ordered to enter into recognisances and to find sureties for their good behaviour and to keep the peace’.50 This was tantamount to saying that the planned protest was by definition unlawful.

Even for the National Government, such a procedural ruse was scraping the bottom of the barrel. The ‘evidence’ supporting these ‘charges’ of imminent disorder was fairly meaningless, being rooted more in the men's membership of the Communist Party and in a vague connection with an article in the Daily Worker (a permitted newspaper) for which neither had been responsible.51 A Detective Pasmore spoke of the trouble that had occurred the previous November, but neither he nor any other witness appear to have produced any evidence pinning any blame for that trouble on either defendant. Both men protested to the presiding magistrate, Sir Chartres Biron, that they had never been involved in any violence but were merely engaged in the matter of expressing their political views. But declaring that there ‘had been a misapprehension as to the nature of these proceedings’, Biron emphasised that all that was required was that both men be bound over to be of good behaviour. A (p.228) contemporary account of the Chief Magistrate's words captures the evidential uncertainty that pervaded his application of the law:

It was clear that there was a mass meeting announced and arranged for Monday, which was to present a petition to the House of Parliament [sic]. In his view there would be a mass mob within the vicinity of the House of Commons. There is nothing to prevent anyone presenting a petition to the House of Commons but it is most undesirable that such a petition should be presented by an organised mass of people marching on the House of Commons. It is common knowledge that this mass of people were meeting on Monday to make this mass demonstration under exactly the same conditions as a meeting in October, when there was great disorder. He did not say that the present defendants were responsible for that. But it showed what such meetings were likely to produce and against which he had sworn to preserve the peace.52

When, inevitably, the men refused to be bound over as though they were criminals, they were both promptly dispatched to prison for two months. These proceedings took place on 17 December, just a couple of days before the planned petition was to have been presented. The Home Secretary had ‘no illusions that the arrest of two men [would] entirely prevent disorder, but it [was] clear that it must be brought home to those who organise disorder, that certain penalties are bound to fall if they will not give definite undertakings which are simple and direct and which they can give if they so desire’.53 The arrests and speedy imprisonments seem to have done the trick; 19 December passed off peacefully and without the embarrassment of having to use force to reject a NUWM petition.54

This attack on the leadership of the NUWM was a crucial blow for an organisation which in 1933 saw a majority of its executive committee in jail.55 But it was a plight from which it recovered, taking a leading part in the organisation of hunger marches in 1934 and 1936, as well as mounting ‘quite large rallies’ in London ‘on several occasions’.56 It is also (p.229) one which led to a notable legal victory for the Movement, this arising directly from the raid of its premises on 1 November 1932. Hannington recalls in his memoirs that while in Pentonville Prison, he was:

visited by a well-known solicitor, Harry Thompson, who was renowned in trade union circles for his expert legal services in claims for compensation in respect of industrial accidents.57 He had the right as a solicitor to meet me in a room without the presence of a warder. He told me that after my arrest it had been clearly established that the police had no search warrant when they seized the loads of documents from the N.U.W.M. offices.58

He said there were strong grounds for a prosecution against the police.59 He had discussed the matter with eminent lawyers whom I knew and they were ready to fight the case in the courts on behalf of myself and other national officers of the N.U.W.M. if I was willing to authorise the commencement of proceedings. He was very confident that we were on a winner and that the other side would have to meet all the legal costs. I needed no persuasion about such a proposition and I readily gave my consent. I went back to my cell very happy that day.60

Thompson's optimism was not misplaced. The extent of the State's power of search and seizure, whether with or without an arrest warrant, had long been controversial, and the epoch-making decision of Entick v Carrington 61 had made clear as early as 1765 that the executive had no general right to seize documents on its own authority. Hannington's legal advisers were quick to realise that the enormous amount of material seized from the NUWM made their case look suspiciously like Entick, albeit one that was disingenuously disguised by the figleaf of an accompanying arrest warrant.

In an earlier chapter we saw how this precise issue of the seizure of documents upon arrest had arisen on several occasions in the 1920s in the context of the arrest of members of the Communist Party.62 In July 1921, the then Home Secretary Edward Shortt could do no more by way of identifying the legal basis for such conduct than declare that it had ‘from time immemorial been the practice for police officers to search the dwelling of an accused person whenever it is thought likely that any material evidence, for or against the prisoner, [was] likely to be so (p.230) obtained’.63 Shortt had gone on to say that the ‘practice [was] brought to the cognizance of courts almost daily, and ha[d] never…been adversely commented on by a Judge—much less [been] held to be illegal’.64 The assumption in this and other similar replies in the 1920s65 clearly was that there should first have been an arrest and that then the search should relate only to the case of the arrestee and not to that of any other individual and should be of his or her dwelling rather than any other place. The potential unlawfulness of such a practice was recognised by the Royal Commission on Police Powers and Procedures, which reported in the following terms in 1929:66

We are…informed that it has long been the practice of the Police to search the dwelling of a person for whose arrest a warrant has been issued, and, in cases of arrest without warrant, to search premises as well as the arrested person, in cases of serious crime, whenever it seems likely that any material evidence can be obtained. In normal cases, the Police obtain the consent of the occupiers before carrying out a search in such circumstances. But it appears that, in the event of a refusal to consent, the Police, if they proceed with the search, may be faced with the risk of a subsequent action for trespass. This is a risk which is commonly taken by the Police and the practice seems to have had the tacit approval of the Courts for so long that, in the opinion of the Home Office, it has become part of the common law.

Even if the Home Office's version of the law was correct, it was clear that the raid on the NUWM, like earlier raids on the Communist Party in the 1920s, had gone far beyond even that to which it could be claimed the courts had given their tacit approval, a matter which had been pointed out in the Commons by Sir Stafford Cripps.67

The case finally came on for trial before Horridge J whom we have already encountered in Chapter 3 above. The action, in the names of (p.231) Elias, Llewellyn and another tenant James, was against the two police officers in charge of the search, Pasmore and Kitchener, with Baron Trenchard and the Receiver for the Metropolitan Police District also added to the list of defendants. Damages were sought for trespass to premises and to goods and for the wrongful retention of the still withheld documents, together with an order for the delivery of these back to the plaintiffs. To put the NUWM case, Thompson briefed the well-known barrister D N Pritt. Looking back, Hannington was later to describe the proceedings as a ‘very keen and erudite legal battle, involving numerous quotations from dusty old law books, that went on throughout many days’.68 Pritt naturally focused on the weakest element in the police defence, which related to their having taken so much irrelevant documentation. Addressing the judge in oral argument, Pritt:

desired to make it clear that, if it had been a mere case of the police, when they came to arrest Hannington, seeing on a desk a document which might be evidence against Elias, and seizing that, this action would not have been brought. What they desired to stop—and what many other people possibly viewed with alarm—was the practice of sending 11 people to enter the offices of a perfectly lawful organisation and make what Mr Justice Charles at the Central Criminal Court described as a ‘clean sweep’. For a country which had hitherto prided itself on the rule of law, that was a shocking thing both in fact and law. It was more than ever necessary that the rule of law should be strictly observed in dealing with persons who were members of an unpopular movement.69

No less a figure than the Attorney General Sir Thomas Inskip presented himself in Horridge J's court and he set about defending all aspects of police behaviour during the search. But when asked by the judge whether there was ‘any answer to the case so far as it related to documents which were found to be irrelevant to any proceedings and were returned to the plaintiff’, Inskip could do no more than explain that ‘it was manifestly more convenient for everyone that the documents should be taken away and sorted than that a police officer should stop in the offices of the National Unemployed Workers’ Movement for hours or days to do the work’. The judge replied to the submission that he did ‘not think that that will do’ and went on to declare that ‘on that part of the case…there must be some damages, however small’.

(p.232) Another weak link in the police case emphasised by Pritt related to the failure to return outstanding NUWM documentation to the Movement at the end of the two trials, and here again the court was sympathetic to the plaintiffs, brushing aside the suggestion by the Attorney General in argument that there could be ‘no property in seditious documents and…[t]here could not be property in any article which it was a crime to possess’.70 But although the award of £30 damages with costs was not to be sneezed at, this was in reality a phyrric victory. It is true that it would be difficult after Elias v Pasmore for the police ever again to ransack premises in the way that they had those of the NUWM and the Communist Party in the preceding decade.71 The case also served indirectly to highlight the dubious legality of the decision of a decade before to publish Communist Party documentation as a command paper.72 Yet in truth neither of the points on which the NUWM was victorious was of central importance as far as future police practice was concerned. In this respect, what really mattered was the excusability of the police seizure of papers on the basis of their materiality to later criminal proceedings, involving not just the arrestee Hannington but also his colleague Elias. There was little doubt that, to the extent that the seized documentation had been deployed in the trial of the arrestee Hannington, then that seizure would be held excusable in law, and this was what Horridge J duly found.73 But the stakes were far higher as regards the seized items which were claimed to be material to or which had been used in Elias’ trial. If such seizures were excusable, then new legal ground would undoubtedly be broken, with the police being able, pursuant to an arrest warrant, to make general searches with a view to uncovering evidence material to as yet unknown crimes involving as yet unnamed individuals. The relevance of this sort of police power in the context of political prosecutions must have been readily apparent, involving as it did the sort of executive power which had been the true target of the famous rhetoric of Lord Camden CJ in Entick v Carrington.

As already suggested, Horridge J found in favour of the State on this crucial point. In doing so he held in a very controversial passage that:

the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence (p.233) of a crime committed by any one, and that so far as the documents in this case fall into this category, the seizure of them is excused.74

So the documents which were seized in the raid of the premises to arrest Hannington were held to have been legitimately seized because ‘they were capable of being evidence in the case against Elias, who was convicted of unlawfully soliciting and inciting Emrys Glunf Llewellyn and Walter Hannington to commit the crime of sedition’.75 Needless to say, this remarkable extension of the common law—which justified the legality of the action of the police by what happened subsequently—had no secure base in precedent. Indeed none of the three cases cited by Horridge J remotely supported such a position,76 and he himself openly acknowledged that there was no ‘direct authority’77 in English law to sustain the principle that ‘though the seizure of documents was originally wrongful, if it in fact turned out that the documents seized were documents which might be properly used in a prosecution against any one, then the seizure would become excused’.78 But it was not until 1969 that the Divisional Court's mistake was accepted, with the Court of Appeal in Ghani v Jones 79 holding that Horridge J had gone ‘too far’,80 particularly by suggesting that an unlawful seizure would be justified if the document in question revealed ‘evidence of a crime committed by anyone’.81 In seeking to narrow the scope of the decision, Lord Denning said that Elias v Pasmore could be justified only ‘on the ground that the papers showed that Elias was implicated in the crime of sedition committed by Hannington. If they had only implicated Elias in some other crime, such as blackmail or libel, I do not think the police officers would have been entitled to seize them’ for that would have been a flat contradiction of Entick v Carrington.82

In a powerful restatement of the principles of Entick v Carrington, Lord Denning declared in Ghani v Jones that:

The common law does not permit police officers, or anyone else, to ransack anyone's house, or to search for papers or articles therein, or to search his person, simply to see if they have committed some crime or other.83

(p.234) This revision of this aspect of Elias v Pasmore was of course some time after the case itself had been decided. Although many of the initial comments on the decision focused on the award of damages,84 Pritt wrote many years later that, though ‘generally hailed as a substantial victory for civil liberty’, it was clear that ‘in reality, to those who knew the law, the judgment seemed actually to narrow the restrictions on the activities of police invaders’.85 An anonymous but prescient note in the Police Journal observed that the ‘much discussed’ decision of Horridge J ‘generally has been regarded as limiting [the police] right of search and seizure when effecting a warrant of arrest’ but that ‘[c]onsideration of the effect of the judgment [did] not, however, lend much support to that view of the case’. On the contrary, ‘the decision, though in some respects it create[d] new difficulties for the police, may be of assistance in clarifying a branch of the law on which there ha[d] hitherto been some doubt’.86 The anonymous reviewer of judicial decisions in 1934 in Law Notes was surely right to advise the journal's readers that ‘if you had to select a yearling having some pretensions to the classics do not summarily dismiss Elias v Pasmore from your deliberations. There is classic blood here’.87 That this ‘classic blood’ threatened to dog the present and subsequent generations of radical activists was the central point of E C S Wade's powerful attack on the decision, published in the Law Quarterly Review in July 1934:

How can the public enjoy the protection to liberty of person and property secured by the General Warrant Cases if the existence of a warrant for the arrest of A enables the police to hunt for information throughout the building where A happens to be at the time of his arrest and use material thus discovered to prosecute, say, D, who alone out of B, C, D, E and F is thus shown to have committed a crime? Is not D, as well as B, C, E and F, presumed to be innocent and immune from invasion of his private property by the police, unless and until charged with an offence connected therewith, or in the case of the statutory exceptions reasonably suspected of the commission of, such an offence?88

The Communist Party and the Armed Forces

Horridge J gave his judgment in Elias v Pasmore on 23 January 1934. A few months later, in April 1934, the government suddenly opened a new (p.235) and more direct line of attack against the activities of the Communist Party. The rationale for the extensive inroads into civil liberties proposed by the Incitement to Disaffection Bill lay in the Party's somewhat desultory efforts at propaganda within the armed forces. Despite its weakness, the Party had nevertheless embarked at the end of the 1920s on a campaign of political persuasion aimed at members of the armed forces that was eventually to provoke the 1934 Bill.89 In June 1928, four miners were convicted of sedition by a Scottish jury for having circulated to four soldiers a pamphlet which advocated trade unionism in the forces. For this act, ‘calculated to excite disaffection, commotion, and resistance to lawful authority among His Majesty's lieges, and particularly among His Majesty's Forces’, the defendants were each jailed for one month.90 Despite both their organisational weakness and the deterrent effect that such sentences must undoubtedly have had, the communists’ tactic of leafleting army barracks with political messages nevertheless intensified during 1929. In September of that year, the first edition of The Soldiers’ Voice emerged. Claiming to be the organ of the communist members of the armed forces, it found at least one section of its readership willing to take it seriously; for the always anxious Army Council, the journal seemed finally to confirm what its members had long feared, that their men were being radicalised under their noses by seditious propaganda.

The content of the leaflets put out by the communists varied from place to place. Those distributed to soldiers leaving Chelsea barracks on 17 March 1930, for example, called on the troops to protest against compulsory church parades and to defend Soviet Russia. Perhaps of more immediate concern to the Army Council, those left at Fenham barracks in Newcastle on 24 May 1930 advised soldiers to refuse to go to India if so ordered.91 The difficulty lay in determining the right way to respond to such provocation. A couple of distributors of The Soldiers’ Voice were prosecuted under a local bye-law and this severely disrupted the paper's distribution in Manchester for a time, and the pamphleteers outside the Chelsea barracks mentioned above were successfully prosecuted under a local measure (almost certainly section 54(13) of the Metropolitan Police Act 1839) for ‘insulting behaviour’.92 The main legal weapon available (p.236) on the national stage was the antiquated blunderbuss of the Incitement to Mutiny Act 1797 which we have already encountered. During 1930, two Party members were jailed under the Act for distributing anti-war leaflets to soldiers at Brecon,93 and another received an eighteen-month sentence under the Act from Swift J for handing out leaflets at Aldershot.94 When the Daily Worker published a strong attack on the latter's sentence, four of those most closely involved with the paper were convicted for conduct ‘calculated to bring the learned judge into contempt and lower his authority’.95 A number of arrests followed a mutiny aboard the HMS Lucia at Plymouth in December 1930,96 and a couple of months after this event, a communist was convicted under the 1797 Act in Bristol, apparently for doing nothing more than making an inflammatory speech to an audience which does not seem even to have included any servicemen among its number.97

Despite these convictions, the Labour Government then in power appeared to take the pamphleteering issue somewhat less seriously than did the Army Council and certainly less than a few backbench Conservative MP's might have wanted.98 Through the summer of 1930, the government resisted pressure to act against those responsible for the many leaflets of the day addressing the morality of the army's role in India.99 The lack of any publishing details on the pamphlets made it difficult to proceed against those directly responsible for them. Even when action was taken, the Home Secretary's critics were not satisfied. After (p.237) the convictions of the defendants in the Chelsea barracks case, Sir Kingsley Wood opened a supply day Commons debate in May 1930 with a speech on the issue, inquiring why, ‘[h]aving regard to the well-known principles of British justice…these three comparatively humble individuals have been proceeded against while the people who are mainly responsible, namely, the printers and publishers of the leaflets, who undoubtedly gave them the leaflets, have not’. Wood went on to wonder aloud ‘whether it [was] sufficiently realised what a large number of centres there are in this country under the direction not of people in this country, but of what is called the Comintern, who are daily issuing, or issuing as often as they can, subversive and certainly disgraceful periodicals and leaflets in this country’.100 When Clynes wryly suggested that the ‘Communists will thank [Wood] for the wide advertisement which he has given to their literature and their efforts’,101 the victim of the jibe intervened to remark, quite accurately, that the minister was ‘hardly dealing with the cases seriously’.102 In what could not be described as a ringing endorsement of free speech, the Home Secretary concluded his remarks by assuring the House in a more sober vein that in deciding whether or not to prosecute such conduct, the government would ‘have regard to the interests of the State and, incidentally, to the rights of individuals freely to hold opinions which are not in themselves offensive’.103But he did at least go on to declare that it was ‘none of our business to try to make new offences while we are in office’.104

The fall of the Labour Government in August 1931 led to the formation of the National Government under Ramsay Macdonald, and one of its very first acts was to propose the making of deep cuts in the salaries of many public officials. These were to average about ten per cent, but they were to hit the navy particularly hard with some classes of seamen being expected to suffer a drop in their income of as much as twenty-five per cent. What made these proposals even more controversial was both that they contradicted a series of assurances given by earlier administrations and that they were expected to take effect almost immediately. Shortly after their announcement, ‘discussions took place in the large Navy canteen at Invergordon, where most of the ships of the Atlantic Fleet were engaged in training exercises. On 15 September, 12,000 men refused to obey orders to fall in for work and the “Invergordon Mutiny” hit the headlines’.105 After the trouble had been brought under control, thirty-six of the alleged ringleaders were immediately dismissed without charges being (p.238) brought against them. The criminal law was reserved for the usual scapegoats, the members and supporters of the Communist Party, though it must be admitted that the Party's public celebration of Invergordon had left it vulnerable to State reaction, whether or not it had in fact been involved in inciting or planning the mutiny. On 25 September the offices of the Party's paper, the Daily Worker, and its printer Utopia Press were searched by Special Branch without a warrant.106 The managing director of the Press W T Wilkinson was duly charged and bailed on condition that ‘no matter [was] to appear in [the Daily Worker], while you are on bail, in any way touching or concerning the armed forces of his Majesty’.107 Wilkinson was later convicted under section 1 of the 1797 Act, receiving a sentence of nine months’ imprisonment from Hawke J.

In vain did the sixty-eight-year-old Wilkinson plead that the printing firm could not be held responsible for the contents of the journal it published. The judge's response, that the case was solely about the ‘offence of inciting sailors to disobey orders’ and had nothing to do with free speech, might have been less incredible had the defendant before him had any responsibility for writing the words that were the subject of the charge.108 In a subsequent prosecution, Wilkinson's alleged co-conspirator Frank Paterson was charged with incitement to mutiny. The presiding judge at his trial was Humphreys J, whom we have earlier seen as Travers Humphreys QC, chief prosecution counsel in the 1924 Campbell case and the 1925 sedition trials,109 and whom we will encounter again in the course of this chapter.110 On this occasion, a senior police officer's enthusiasm for his brief caused this usually reliable judge to engage in mild criticism of police practice:

A police inspector called at the offices of the Daily Worker and asked Paterson and others who was responsible for the issues of the paper. One man replied that he understood they were not required to make any reply unless a charge was preferred; upon which the inspector said that it would be to their advantage if they were not responsible.111

(p.239) Humphreys J observed of this sequence of events that the officer had been ‘endeavouring to induce this man to make a statement as to whether he was the person or not who had in the view of the prosecution committed a crime’. Anything said as a result of this inducement was to be regarded as inadmissible. But any optimism that such remarks might have generated that Paterson would be leniently dealt with were dashed by Humphreys’ imposition of a sentence of two years with hard labour. The police officers had apparently no ‘personal blame’ for what had happened, explained Humphreys.112

After Invergordon, the incidents of disaffection in the forces do not seem markedly to have increased, or even to have increased at all. Though the new Home Secretary appointed after the National Government assumed office, Sir Herbert Samuel, felt able to claim in the Commons in May 1932 that there had been ‘some increase in the output of Communist literature’,113 no evidence of this was offered and there was certainly no indication that any of the alleged increase was aimed specifically at the military. Indeed the campaign of circulating leaflets at army and navy bases seems to have been wound down, or if it did continue it attracted no parliamentary attention. This was except for one curious incident in the summer of 1933, when AA road signs leading to an RAF display at Hendon were covered by ‘anti-war and Communist notices’. Showing (whether intentionally or not is unclear) a Clynes-like sense of proportion, D H Hacking, the Under Secretary of State for Home Affairs assured the House that no action was necessary since the ‘handbills [had been] destroyed by passers-by and the action of the weather’.114 The civil liberties focus in the early 1930s was on the hunger marches and on the rise of the British Union of Fascists,115 and only one prosecution of any note (Humphreys J again presiding) seems to have taken place under the 1797 Act after the Invergordon furore had died down; even this seems to have been more about persecuting the South Wales communist leadership than about incitement to mutiny (p.240) (with the latter being merely a means to the former via the use of an agent provocateur).116

Notwithstanding the apparent decline in activity by the CPGB aimed at the military, the pressure for legislative action against disaffection in the armed forces began if anything (and somewhat paradoxically) to increase. The push for new law took place entirely in secret and came not so much from Members of Parliament as from various elements within the government itself. We have already noted that a Preservation of Public Order Bill had been prepared by a Cabinet committee in 1921117 and that the issue was revisited as early as 1925 by another Cabinet committee (chaired by the Lord Chancellor, Viscount Cave), set up at the time of the sedition trial. Representations were made to that Committee ‘respecting the highly objectionable and dangerous efforts made by the Communists to undermine the loyalty of and create disaffection among members of the Fighting Services’.118 At that point however the Committee thought that the Cabinet would ‘appreciate the difficulty of legislating against propaganda ostensibly directed towards the betterment of conditions in the Fighting Services’.119 Though the Committee agreed that ‘the sedition law needs codifying and strengthening’, and to this end it appended a further draft Preservation of Public Order Bill to its Report, it nevertheless concluded that ‘no useful purpose would be served by attempting to introduce such legislation at the present moment’.120 In the early 1930s, renewed pressure for legislation came from first and most predictably the Army Council, which had long hankered after the transformation into permanent legislation of the wide protective regulations that it had enjoyed first under the Defence of the Realm Acts and subsequently under the Emergency Powers Act when regulations under it had been in force.121 The Council had functioned as (p.241) a permanent lobby for legislative change throughout the 1920s and continued its efforts into the early 1930s.122

After Invergordon, a second important Whitehall player came over firmly onto its side. In October 1932, the secret service reported to the Home Office on ‘the rising menace constituted by Communism to the Country and the inadequacy of the present law to deal with it’. The Service appended to its report a draft Public Security Bill which was broadly framed so as to prohibit:

Use or advocacy of the use of force, violence, intimidation, etc. for the purpose of procuring the alteration of the established law, form of Government, or constitution of the United Kingdom, or for the purpose of bringing into hatred or contempt the administration of justice, or for the purpose of interfering with the administration of the law, or with the maintenance of law and order.

To this attempt to introduce a statutory offence of sedition, it was proposed to add a measure which would have made it an offence to induce ‘any member of H M Forces to fail in his duty, or commit a breach of discipline’. But although these proposals were again rejected by the government, the secret service ‘did not give up’, and in 1933 further information came to light of Comintern attempts to seduce members of the armed forces from their allegiance. Concern was also expressed by the First Lord of the Admiralty that ‘nothing could be done’ to stop the issue of pamphlets inciting the Fleet to mutiny: those proved to have issued such material could be punished but probably it would only be possible to secure evidence against a distributor who would be a mere hireling. The existing law did not make it an offence to prepare such a pamphlet or to hold it before publication.123 It was probably in response to the promptings of both lobbies that a new legislative proposal, in the form of an Incitement to Disaffection Bill less extreme than that envisaged by the secret service, was drafted and this eventually appeared on the Cabinet agenda in October 1933.

At this stage, the third source of pressure for the legislation seems to have become involved. Since November 1931, the Metropolitan Police had been under the command of Baron Trenchard, a man already famous for having founded the Royal Air Force. The ‘father of the air-force’124 was extremely suspicious of even the mild-mannered Police (p.242) Federation that had been put in place after the police union had been outlawed in 1919, referring in his annual report for 1932 to his having ‘reason to be somewhat concerned by deliberate attempts that have been made to stir up discontent in the Force’.125 This was probably a reference to the Police Federation, but with an Incitement to Disaffection Bill now circulating in official circles, Trenchard appears to have taken the opportunity to persuade the Home Secretary, Sir John Gilmour (who had replaced Samuel in 1932) that the proposed Bill should include the civil police.126 Certainly this was the proposal that Gilmour put to Cabinet in February 1934, and it took all the powers of persuasion of the Prime Minister to force him to withdraw.127 While the police lost this particular battle, much of the rest of the Bill that was eventually published bears the imprint of police influence. Indeed the controversy that the measure was to attract centred as much on its extension of ordinary police power as it did on its proposed broadening of the law on disaffection. Section 3 of the Police Act 1919 already made it an offence to cause disaffection amongst the members of the police force, and as such was widely drawn, much more so than the 1797 Act. Thus the 1919 Act applied not only to ‘any act calculated to cause disaffection’ but also to inducements to police officers to withhold their services or commit breaches of discipline. Nevertheless problems similar to those that affected the 1797 Act probably also arose in connection with the 1919 Act, particularly in relation to the preparation of offending material, though there is not much evidence of publications designed to cause disaffection in the police.

When the National Government's proposal for new legislation was finally published in Spring 1934, it was greeted with a mixture of (p.243) incredulity, astonishment and anger.128 It was during the early months of that year that Mosley's fascists were enjoying what was to prove to be the high point in their popularity with the British people129 and it seemed a malicious eccentricity on the part of the government to choose this moment to propose, apparently out-of-the-blue, new legislation on what was by the Spring of 1934 already widely perceived as an old and largely non-existent problem. As we shall see, the extraordinarily hostile public reaction shown to the Bill led to a series of significant amendments being made to it during its passage through the Commons and these greatly diluted its breadth and range. In its original form, the measure represented a calculated attempt to render a whole segment of radical political opinion vulnerable to arbitrary police action. As we have seen earlier in this chapter, by 1934 the government had already been exposed to the pressures brought to bear on it by the hunger marches of the NUWM.130 It probably knew exactly what it was doing when it attempted to give the police significant new powers with which to control this huge segment of contemporary political radicalism. That the plan was largely foiled stands as a tribute to the parliamentarians from all sides who opposed it, and as a reminder of the value of an open and accountable democratic process as a means of law-making, at least when it can be made to function properly. The caution of Cave's Cabinet Committee of 1926, which had warned that ‘[p]ast experience shows that, except in moments of national crisis, the passage through Parliament of proposals for dealing with sedition presents exceptional difficulties’,131 was spectacularly vindicated.

The Incitement to Disaffection Act 1934

Management of the Bill was left in the hands of the Attorney General, Sir Thomas Inskip. The son of a Bristol solicitor, Inskip had been Solicitor General in Bonar Law's Administration and was now in his second term of duty as Attorney General, appointed to the post in 1932 after having previously served for two years in 1928 to 1929. When opening the Second Reading debate, Inskip sought to defuse the tension that its publication had already caused by stressing that the proposed (p.244) measure was ‘of more limited scope than, if I may judge from some published comments, some persons think it to be’.132 As this remark indicates, his tactic was to emphasise that the Bill involved little more than a procedural rationalisation of already well-established legal rules. The language of the Incitement to Mutiny Act 1797 was ‘substantially reproduced’133 in the Bill but with the added advantage that under the new measure summary prosecutions would now be possible, thus providing ‘an easier, swifter and more suitable remedy and punishment for the comparatively humble persons who are caught distributing literature’, while the ‘cumbrous, slow-moving machinery of indictment’134 with the possibility of a life sentence under the 1797 Act would remain for the ‘somewhat sly and almost skulking breed of inciter’ who was ‘too shy or too cowardly to put…names and addresses to the literature which they [were] in the habit of producing’.135 The Bill, which dealt with ‘matters of real importance’ and was ‘not a panic Measure’,136 was commended to the House primarily on the basis that it was ‘concerned wholly with the prevention and punishment of endeavours to seduce Members of His Majesty's Forces from their duty or allegiance’.137

The Attorney General's approach inflamed rather than conciliated the Opposition. The first and most obvious, but also the most powerful, objection to the Bill was that it was unnecessary. The Attorney General made a great play of quoting from passages in The Soldiers’ Voice and its Navy equivalent, The Red Signal. It is true that the passages in question (which had also excited the secret service138) were inflammatory, inviting members of the armed forces to get in touch with ‘that Communist or member of the Unemployed Movement you used to know at home’ and proclaiming that ‘[i]f war does come, then it must be turned into a civil war against the capitalist war-mongers and their bankrupt system’.139 But the most recent of the quoted passages was May 1933 (almost a full year before the Bill's introduction), while the Attorney General went on to undermine his own argument by declaring his confidence that ‘these pieces of propaganda are an insult to members of His Majesty's Forces’ (p.245) who ‘in general are inspired by a passionate loyalty to their Service’.140 As the Liberal MP Isaac Foot asked, not necessarily rhetorically, ‘I wonder what evidence there is that a single soldier has been influenced in his allegiance?’141 No evidence was forthcoming. When Inskip sought support for the Bill by pointing out that during 1932 there had been seventeen different subversive pamphlets and twenty places of distribution, and eleven such pamphlets and such centres during 1933,142 Members were quick to reply that these figures reflected a sharp decline in the problem over the two years, and that this was a powerful argument against rather than in favour of legislation. Requests for information about the propagation of such literature in the first months of 1934 met with no response from Inskip or any of his ministerial team.

The antagonism shown towards the Bill went beyond the question of its necessity. The actual provisions it contained conclusively refuted the Attorney General's claim that the Bill was substantially procedural in content. Clause one declared that ‘If any person endeavours to seduce any member of His Majesty's forces from his duty or allegiance to His Majesty he shall be guilty of an offence under this Act’. This differed in two important respects from the 1797 provision which Inskip had said it was effectively duplicating. First, the phrase ‘maliciously and advisedly’ which qualified the phrase ‘endeavour to seduce’ in the old Act was nowhere to be found in the new.143 Secondly and more importantly, where the 1797 measure had referred to seducing members of the forces from their ‘duty and allegiance’, the 1934 Bill proposed instead that the seduction be from their ‘duty or allegiance’.144 Manifestly the latter formula was far broader than the former, since it would be perfectly possible to invite a soldier not to do his duty in a way which did not challenge his allegiance. The importance of this change of phrase was brought home by the extraordinary clause 2(1) which the Attorney General put before the House:

(p.246) If any person, without lawful excuse, has in his possession or under his control any document of such a nature that the dissemination of copies thereof among members of His Majesty's forces would be an offence under section one of this Act, he shall be guilty of an offence under this Act.

Inskip almost casually described this as being intended to put people off distributing the pamphlets,145 but members of the House were not slow to pick up the fact that possession of a document would now be a crime if circulating it to the forces would be an offence under section one, and this was so even if there was no intention whatsoever of any such circulation taking place.146 The effect of this would be to leave vulnerable to prosecution those who possessed almost any sort of literature of a radical or communist nature. Even more remarkable was the possibility, raised by a number of MPs, that the possession of pacifist material in, for example, the Friends’ Meeting House in London or the Oxford Union (which had recently carried its famous pacifist motion), would henceforth very likely be an offence under the Act.147 To make matters worse, clause 2(2) went on to provide that ‘If any person does or attempts to do, or causes to be done or attempted, any act preparatory to the commission of an offence under section one of this Act, he shall be guilty of an offence under this Act’. Inskip justified this by talking vaguely of punishing ‘[a]n attempt…to engage some of these unhappy distributors or to enter into a contract for the printing’.148 Neither eventuality was particularly likely, given the subterfuge nature of such propaganda operations. One MP was closer to the mark when he wondered ‘what would be the position if I or some other person boarded a train for Aldershot, and it were contended that that was preparatory to our committing an offence under the Bill’.149 Yet controversial though clauses 1 and 2(1) and (2) of the Bill were, the anger they generated was as nothing compared to the fury sparked by clause 2(3). Even Inskip recognised that it had ‘quite rightly…attracted the attention of many Members with a view to seeing that we [were] doing nothing outrageous’.150 In its original form, the sub-clause read as follows:

(p.247) If a justice of the peace is satisfied by information on oath that there is reasonable ground for suspecting that an offence under this Act has been committed, he may grant a search warrant authorising any constable named therein to enter at any time, if necessary by force, any premises or place named in the warrant, and to search the premises or place and every person found therein, and to seize anything found on the premises or place or on any such person which he has reasonable ground for suspecting to be evidence of the commission of such an offence as aforesaid.

The inevitable complaint about this provision was that it amounted to the enactment of the right to obtain general warrants of a type that had been condemned in Entick v Carrington, the seminal decision which we have already encountered on several occasions.151 The Attorney General attempted to defuse such a predictable objection as follows:

This Clause has nothing to do with general warrants. General warrants were objectionable to the law in those days because the law made no provision for them, and the fact that they were general was an objection. The fact that they were issued by a Secretary of State only and not by a magistrate upon information was another objection. This Clause is not an illustration of the general warrant.152

At a purely technical level, Inskip was undoubtedly correct. The problem with the warrant issued by the Secretary of State in Entick v Carrington had been more to do with its lack of a legal basis than with its content, and there remained a requirement in this clause that a crime be reasonably suspected of having been committed. But it was a very tenuous Rule of Law that allowed such a power on the basis of a crime so vaguely defined and by the authority of a single magistrate's warrant ‘under which you do not need to specify anyone's name, and under which it is possible for a police officer to go and fish around for evidence upon which he can subsequently frame a criminal charge’.153 MPs also pointed out that it contained ‘no limit to the time or place’ in which the search could be effected154 and that it reposed far too much discretion in individual JPs, many of whom were ‘so Conservative that nearly half the Conservatives in this House would repudiate [their] views’.155 In 1925, an earlier government had sought to slip into a routine Criminal Justice Bill an even broader provision than what was now proposed, allowing magistrates to authorise general searches where an indictable offence had been or was (p.248) about to be committed, but the ruse had been spotted by Sir Patrick Hastings, whose speeches against the proposal in the Commons had been so devastating that the initiative had been quietly dropped.156 It looked as though the National Government, perhaps inspired by Trenchard, was trying its luck in the same way, no doubt to the embarrassment of the Prime Minister who as Leader of the Opposition had excoriated the 1925 proposal as ‘monstrous’ and as ‘the most pernicious proposal that had been made in modern times for the undermining of personal liberty’.157

The Second Reading debate was little less than a six-and-a-half hour mauling of the Bill, with many Members remarking on the absence of government supporters willing to speak in favour of the measure. Particularly noteworthy was the fact that the Home Secretary, Sir John Gilmour, had carefully distanced himself from the measure, despite its manifest domestic importance.158 The Solicitor General, Sir Donald Somervell (later to achieve high judicial office in the Court of Appeal and the House of Lords) put a face more brave than rational on the humiliation when at the end of the debate he professed both the Attorney General and himself to be ‘satisfied with the reception which the Bill has received’.159 Even more bizarrely, he then went on to declare that ‘no argument of substance ha[d], on examination, been produced against the Bill’.160 Despite such bravado, the government had been badly shaken. Opposition to the Bill continued to gain momentum and was in full flow through May, June and July when a parliamentary standing committee of some fifty members (with invariably thirty to forty in attendance) devoted no fewer than fifteen sittings to a minute consideration of its many controversial aspects. Opposition to the measure went beyond the precincts of the House of Commons. The newly formed Council for Civil Liberties (subsequently the NCCL) organised two demonstrations in Trafalgar Square and a deputation to the Attorney General. Its petition against the Bill as ‘a grave menace to the fundamental liberties of the British people’ was signed by 63,134 people.161 A protest meeting in Oxford on 5 May, attended by such distinguished legal luminaries as the Vinerian Professor in English Law, Sir William Holdsworth, the Master (p.249) of University College, Sir Michael Sadler, and the Warden of New College, HAL Fisher, was so vitriolic in its condemnation that the Justice of the Peace, which had earlier robustly supported the Bill, now coyly predicted that its ‘prospects…[were] not very promising’.162 By 4 June, the government admitted to having already received 161 resolutions against the Bill from trade unions and political and religious organisations.163 A galaxy of leading writers and even military personnel entered into the fray in opposition to the government's plans.164

In view of all this, it was not at all surprising that Inskip and his colleagues should have felt obliged to accept a series of amendments in Committee. The phrase ‘maliciously and advisedly’ from the 1797 Act was added to clause 1, and clause 2(1) was greatly limited by the replacement of the vague defence of a ‘lawful excuse’ for the possession of the criminal material with a new requirement that the holding of the material be for the purpose of committing an offence under section 1.165 Rather pathetically, Inskip was reduced to boasting to the Committee that ‘Professor Holdsworth says that my Amendment “makes this section comparatively unobjectionable” ’166 Even more dramatically, clause 2(2) was dropped in its entirety, with the Attorney General, ‘putting all [his] cards on the table’, admitting that ‘it might be said that if a person of thoroughly bad character, a Communist, took a ticket at Waterloo for Aldershot, as has been suggested, that might be an act preparatory to the commission of an offence’.167 Clause 2(3) was also the subject of numerous concessions, not the least of which were those which limited the police who could apply for warrants under the sub-section to inspectors or more senior officers and which replaced the single justice of the peace to whom applications could originally have been made for such warrants (p.250) to two justices or to a stipendiary magistrate. It might have been thought that these concessions, together with another amendment allowing defendants to choose jury trial if they so desired,168 would have pacified the Bill's critics and allowed it to have negotiated its remaining parliamentary hurdles without difficulty.

But while this may have been Inskip's hope, it was not to be realised. Sir William Holdsworth for one was not convinced. In an astonishing attack on the Bill, published in the Spectator when the Committee debate on clause 2 was winding down, the Vinerian Professor welcomed the changes that had occurred which had ‘removed some, but by no means all, of those features which [had made] [the Bill] the most daring encroachment upon the liberty of the subject which the Executive Government has yet attempted at a time which is not a time of emergency’.169 But even as amended the Bill still showed that there was a danger that ‘with the help of Parliament…the conception of the Rule of Law, and of liberties guaranteed by a supreme law, will disappear’. The opposition continued at such a pitch that the government felt compelled to agree even further dilutions after the Committee stage had concluded, the most important of which restricted the warrant procedure in the old clause 2(3) to a judge of the High Court, a change for which Holdsworth in particular had been pushing.170 This was a major concession, for which there appears to have been no precedent; even the Official Secrets Act 1911 permitted warrants to be issued by magistrates, and indeed in some cases effectively by the police themselves. The Bill that limped from the Commons was thus a very different and tamer breed of legislative animal than the vicious beast that had been unleashed at Second Reading. But even the Lords only passed the measure after the peers had delivered another series of savage intellectual blows at Second Reading and had had a whole series of amendments successfully resisted by what must have been a deeply exasperated government.171 The former Rufus Isaacs, now nearing the end of his life sitting in the House of Lords as the Marquess of Reading, emerged from retirement to launch a particularly wounding attack, asking a series of questions to which satisfactory (p.251) answers were no nearer the public domain then than they had been at the start of the whole process, over six months before:

My difficulty throughout is to understand what is the good cause in this case. What is the necessity for this Bill? How came it to be introduced? Who was responsible for it? Who initiated it?172

But although wounded, the government was unbowed, with a majority in the Lords large enough to ensure a safe if sometimes stormy passage. There were nevertheless no fewer than fifteen divisions in Committee.173 Among the more interesting of these was the vote on the proposal that clause 1 should be amended to reflect the 1797 formula: that an offence be committed only where the accused was guilty of conduct which seduced members of the forces from their duty and allegiance, rather than from their duty or allegiance, a controversial phrase which had survived intense Commons’ scrutiny. It was in the course of these exchanges that a new twist emerged in the tale, with the Marquess of Reading complaining bitterly that the House had been misled by the War Secretary (Viscount Hailsham) who had given the impression that ‘really there was no distinction’174 between ‘duty and allegiance’ on the one hand and ‘duty or allegiance’ on the other. But although the government remained convinced that the formula ‘made very little difference’175 it was still not prepared to accept the amendment, the division on which attracted more of their Lordships into the voting lobbies than on any of the others. It remains the case, nevertheless, that the use of the disjunctive rather than the conjunctive in the 1934 Act must ‘have been done for a reason’, an argument accepted as ‘sound’ by the Court of Appeal some forty years later.176 It is perhaps only the limited use which has been made of the 1934 Act since its enactment—thereby tending to confirm that the government was tilting at windmills after all—which has helped to ensure that the significance of this development has not been fully realised.

Having campaigned so long for an anti-disaffection Bill, the executive now found itself with a measure so truncated by Parliament that its anti-communist utility was sharply reduced. The Act was not used as the basis of a prosecution for three years and then only in a case in 1937, ‘the impropriety of [which prosecution was] quite obvious from the facts’.177 (p.252) It may have been that, apart from the amendments that were achieved, it was the controversy itself which the measure aroused that made the executive reluctant to enforce it. That controversy was of course largely due to the offensive content of the legislation. It was clearly significant, and recognised as such at the time, that here was a Bill which was intended to be a permanent and ordinary part of the law and which was in this highly material way different from the Defence of the Realm Regulations and Emergency Regulations which had preceded it. That this was so widely recognised must in no small measure have been due to the organisational skills of the nascent NCCL which as we have earlier noted had arrived on the scene in February 1934, just before the Bill's Second Reading. Of equal importance to the Bill's emasculation was the fact that it was also opposed by so many establishment and conservative figures, of whom Sir William Holdsworth was the most well-known and the most strident. It was this coalition between left and right, both within and outside Parliament, which so effectively damaged the measure. That there was right-wing antagonism may at first sight seem mysterious, but it is more readily understandable when seen as part of a more general rejection of the role of government and as part of a distaste for bureaucracy which was then prevalent in many conservative circles.178 An important symptom of just this sentiment was the well-known polemic of the Chief Justice, Lord Hewart, which we have already encountered.179 But as we shall see, this did not mean that Lord Hewart was thereby a stout defender of political freedom. Indeed, far from it.

The NUWM and the Trenchard Ban

Protest against the National Government which as we have seen assumed office in August 1931 was restricted neither to the members of the armed forces who stood their ground at Invergordon, nor to the hundreds of thousands of hunger marchers who took to the streets. According to the Daily Worker, a total of 1,432 ‘workers’ were prosecuted between 31 October 1931 and 28 February 1933 for crimes allegedly committed in (p.253) the course of their political activities. Of these, 480 were reportedly jailed, 734 fined, 130 bound over and the remainder (a mere eighty-eight) acquitted.180 Not all of these would have been picked up in the great set piece marches. Many of them would have fallen foul of the law because of their participation in other flashpoints of protest in the early 1930s. One of the most inflammatory of these was the political meeting outside the local employment exchange. Though less spectacular than the marches, such meetings may well have had a greater impact on individual communities, particularly on those with high unemployment where ‘signing-on’ was a regular humiliation for many hundreds of local people. Such unemployed workers would have been particularly susceptible to an attractive and persuasive political message, and it was at such meetings that the NUWM gained much of its support, particularly in the autumn of 1931 when its membership was suddenly and dramatically swollen with new recruits, and when benefits were being cut by the new government.

From the start the National Government was extremely agitated by the targeting of employment exchanges and training centres by the NUWM. Frustratingly for the government, however, such gatherings appeared to fall full-square within the kind of peaceful political assembly which the British constitution was supposed to be committed fully to protecting. Serious incidents of disorder outside labour exchanges, whether independently of or following upon such meetings, appear to have been practically non-existent in 1931, with The Times carrying no reports of any such disorder for the first ten months of the year.181 The temperature was heightened slightly in November, when the NUWM targeting began to have an effect. A curious episode occurred in Kentish Town on 13 November. The Times began its report on this north London affair in a way which perhaps reflected the authorities’ view of this type of protest, observing that the ‘first sign of trouble was when about fifty persons assembled in front of the exchange and held a meeting’.182 After about twenty minutes, it appears that some of the men and women present at the meeting entered the employment exchange and tried to get into the boardroom on the first floor, where an appeal board was sitting. They were removed from the building by the police after what The Times called (p.254) ‘a short struggle’, at which point the protestors ‘contented themselves by marching to the local headquarters of the organised unemployed in High Street, Camden Town, where they dispersed’. Four days later, a meet-ing addressed by Wal Hannington outside the labour exchange at Kingsland Road (also in London) was followed by efforts by those assembled to break into the local public assistance committee offices, an action that was only repelled by the use of police truncheons. On the same day a large crowd caused an obstruction at Camden labour exchange, with police action being once again required, leading on this occasion to one demonstrator being charged with an offence for allegedly causing cruelty to a police horse. On 24 November, a deputation from the St Pancras branch of the NUWM had to be forcibly ejected from a local public assistance committee office.183

These various events increased anxiety in the already nervous Ministry of Labour, the department responsible for the administration of employment exchanges and training centres. As early as 2 October, officials from the ministry had written to their counterparts in the Home Office warning about the danger of disturbances following upon the reduction of unemployment benefit. Now on 18 November, when the anticipated agitation seemed to be on the increase, ministry officials appealed to the Metropolitan Police Commissioner to keep the vicinity of employment exchanges clear of political meetings, pointing out in support of their proposal that the ‘natural result of these meetings is to excite the temper of the crowd’. As we have seen the force had at this point just come under the control of Lord Trenchard, a man whose political and civil libertarian sensitivities were very much secondary to his military inclinations. The political temperature in London at this time was extremely volatile. Hannington and Elias had just been jailed and the NUWM was planning the renewal of its mass petition of Parliament, the threat of which was shortly to lead to the jailing also of Mann and Llewellyn. The apparent freedom with which radicals could preach their message across London must have been an affront to this RAF man. On 25 November, therefore, there emerged, ‘wrapped in obscurity and secrecy’,184 what was to become known as the Trenchard ban. Though unannounced in Parliament or the press, and apparently only eventually becoming public knowledge through a leak in breach of confidence,185 the ban was to (p.255) have a profoundly repressive effect on popular protest in London and (though not mentioned in the case) was eventually to give rise to the famous High Court decision of Duncan v Jones.186 The Commissioner's direction was that ‘in future, no meetings are to be held by unemployed or other persons in close proximity to Labour Exchanges, irrespective of whether or not any actual obstruction is caused, on the ground that such meetings have been found liable to lead to breaches of the peace’.

The new rule was immediately implemented, with a meeting outside the St Pancras exchange being broken up by police on 26 November and with further police action on 27 November leading to ‘some of the most bitter fights in London’.187 The Daily Worker's front page headline on 28 November was ‘Unemployed fights with police all over London’.188 On the second day following the ban's introduction, The Times reported on its imposition in the following way:

Fourteen men and a woman were arrested yesterday after struggles between police and unemployed agitators in several London districts. Several police officers were injured.

Instructions were recently issued by Lord Trenchard, the Commissioner of Police, forbidding the holding of meetings or demonstrations of unemployed persons near Labour exchanges. Police officers, both mounted and on foot, were accordingly posted near all the principal exchanges yesterday, and as soon as speakers began to address the unemployed they were ordered to go away.

The most serious disturbance occurred at Fulham, where bottles and other missiles were thrown at the police. There was a free fight, and before further help could be obtained three police officers had been roughly handled by the crowd. In another disturbance in Sulgrave Road, Shepherd's Bush, a policeman was struck on the head and had to be relieved of duty for the rest of the day. Arrests were made near the Labour Exchange in Kentish Town, and also in St. Thomas’ Square, South Hackney, where a man, who is alleged to have attacked a policeman, was taken to the local police station. In other districts men who had assembled with the intention of holding meetings acted on the advice of the police and dispersed without causing trouble.189

Ten of the fourteen arrestees were subsequently charged before the West London magistrate with charges including obstruction and assault. Ominously for these defendants, all their cases were remanded so that charges of unlawful assembly could be brought. The police campaign continued in the days that followed. ‘Day after day the London (p.256) unemployed defied the ban and faced baton charges by the police to uphold their right to free speech and peaceful assembly outside the Labour Exchanges’.190 On 1 December mounted police were used ‘to clear the whole area around the exchange’ at Shepherd's Bush after the police had prohibited a political meeting there.191

The following day, the legality of these various police actions was raised in Parliament. One possible source of legal authority, and one to which Trenchard may initially have been attracted, was the long-winded section 52 of the Metropolitan Police Act 1839, which authorised the chief of police ‘to give directions to the constables for keeping order and for preventing any obstruction of the thoroughfares in the immediate neighbourhood of her Majesty's palaces and the public offices,…and other places of public resort, and in any case when the streets or thoroughfares may be thronged or may be liable to be obstructed’. Unaware of the precise formula deployed by Trenchard in his 25 November direction, one MP demanded of the Home Secretary that instructions be given ‘that at places where traffic is not interfered with and where the proceedings are conducted in an orderly manner such meetings shall not be dispersed by the police’.192 The Home Office had always considered that it was extremely unlikely that the 1839 Act could bear the full weight of a total ban on political activity around employment exchanges of the sort that Trenchard had decided to impose. In view of this, therefore, it was not altogether surprising that in replying to V La T McEntee, the Home Secretary, Sir Herbert Samuel, should have chosen not to mention the 1839 Act. Instead, drawing upon the precise instruction issued by the Commissioner, the Home Secretary asserted that Trenchard's action had been necessary ‘since recent experience ha[d] shown that meetings held in such circumstances [were] liable to lead to breaches of the peace’.193 The weakness in this assertion, of course, was that, the few episodes discussed above aside, there appeared to have been little or no such disorder until the police actions of 26–7 November. Yet, when asked whether ‘the disturbances occurr[ed] before the police interfered or after’,194 Samuel replied:

The disturbances came first. There was interruption of the work at the Employment Exchanges, with disorder, and it was in consequence of that having occurred on several occasions that the Commissioner of Police, in the performance of his usual duties, thought it necessary that, at all events for the time (p.257) being, meetings should not be held in the proximity of Employment Exchanges.195

It is not clear whether these disturbances were inside or outside the exchanges, or whether they flowed from or were independent of any political meetings that might or might not have been held. The Home Secretary offered the Commons no evidence of any of this, or of any of the disorder which he said had precipitated the ban. By the time of his annual report for the year 1931, Trenchard once again reiterated the public order rationale for the ban:

Owing to the assembly of hostile crowds outside labour exchanges, it became necessary to prohibit meetings in their immediate neighbourhood. Some cases of disorder occurred in consequence and Police Officers were injured. The moderation with which the Police behaved under trying circumstances was noteworthy.196

This explanation of the ban is revealing in that it appears to make clear that the problem with the crowds was that they were hostile rather than that they were violent, and that the disorder that did occur was a consequence of the ban, rather than the other way around, as the Home Secretary had asserted in the Commons the previous December. It was against this uncertain legal base for the ban that the newly formed Council for Civil Liberties sought to test it in the courts after it had been in operation for over two years.197 The first step was a letter from the General Secretary Ronald Kidd on 29 May 1934, addressed to the Metropolitan Police Commissioner, objecting to the ban and demanding to know its legal basis. Having first been tempted to point to section 52, the Commissioner eventually replied only that he did not ‘regard it as part of his duty to discuss with the Council for Civil Liberties the propriety of the measure or its legal sanction’.198 The first concerted effort at a test case followed shortly afterwards, and was mounted at Stratford (p.258) on 24 July 1934. The location of the labour exchange in that part of London was such that the protest meeting outside it could be held in a cul-de-sac, thereby minimising the opportunity available to the police to use obstruction of the highway as an effective (because well-established) legal cover with which to break up the meeting.

The Times reported the following day on what happened:

Several hundred people assembled near Stratford Labour Exchange yesterday for the purpose, it was said, of testing the validity of a ban imposed by the Home Secretary and Lord Trenchard on the holding of meetings in the vicinity of Labour Exchanges. The Chief Constable of the district and a number of plain clothes officers were present. The demonstration passed off in orderly fashion. The organisers attempted to place a movable platform in the street opposite the doors of the Labour Exchange, but they promptly agreed to a request of the Chief Constable to move to another spot in order not to cause any obstruction. Mr T. E. Groves, Labour M.P. for the Stratford Division said that the meeting would be the beginning of a campaign for the establishment of civic rights and the right to express their views.199

If what Groves and his colleagues desired was to be arrested, and this seems clearly to have been the case, then they were disappointed. The police contented themselves by allowing the meeting to continue. Groves’ mistake seems to have been to have agreed to the alteration of location suggested by the police. Although the move was to a place only twenty yards away from the nearest door or window of the exchange, it gave the police an excuse not to act. The matter was raised in Parliament in the following week by Groves himself when he asked the Home Secretary to remove the Trenchard ban in view of the fact that the Stratford meeting had been ‘of a very orderly character, necessitating no interference from the police and causing no annoyance or obstruction’. But the Home Secretary had no intention of having the ban revoked (even if he had the power), and explained that the meeting to which Groves referred had been ‘held not outside the entrance to the exchange as was originally intended, but on another site…[at which no] disorder or obstruction occurred’.200 The reality probably was that the authorities had no desire to arrest a Member of Parliament if they could possibly avoid it, particularly when the legal basis for any such action still seemed to hover (p.259) uncomfortably in an uncertain no-man's-land somewhere between obstruction and breach of the peace.201

A less benevolent response from the authorities was in evidence two days after Groves’ Stratford meeting, when the campaign that the MP had there signalled against the ban tried to move into second gear. The focus was once more the Stratford exchange. Two men, Humphrey Slater and Albert Oram, set-up a portable platform at 10.30 am at exactly the same spot as Groves had planned to speak two days before. Once again the Chief Constable was in attendance and once again he asked that the meeting be moved twenty yards from the entrance, on the basis not of any anticipated breach of the peace but because this would prevent ‘obstruction to persons going into or leaving the Labour Exchange’.202 Unlike Groves, the two men did not comply with the police request. Slater began to address a meeting from his platform in a position which was a mere six yards from the entrance to the women's department of the exchange. When he resisted efforts to make him move, Oram came to his assistance and both men were promptly arrested, apparently for obstructing the officer in the execution of his duty. When the case reached the magistrates’ court, the Chief Constable, Major George de Chair, explained his action by saying that he ‘had received instructions from the Commissioner of Police to prevent any meetings outside labour exchanges, because such meetings had caused disorder’. Thus breach of the peace rather than obstruction of the highway had once again become the prominent factor in the exercise of the police discretion, though here clearly it was less a matter of discretion than it was of obedience to superior orders, a point which raises its own questions of legality.203 It was also open to question whether the power of arrest could be exercised before a breach of the peace had been witnessed by the arresting officer, or before the arresting officer had reason to believe that (p.260) a breach of the peace was a real possibility.204 For this purpose, it is now clear that there must exist ‘proved facts from which a constable could reasonably have anticipated such a breach’.205

Slater and Oram both made strong efforts to turn their prosecution into a test case but they were foiled by the court and by the government's lawyers. Before their hearing commenced, the defendants applied for an adjournment three times. The dual purpose behind the first two of these requests was to enable them to obtain legal aid and to contact witnesses who would be able to give evidence that their meeting had caused no obstruction. The first request for an adjournment was for a week, the second was for a morning, and the third was for no more than ten minutes, to enable the defendants to make contact with the witnesses they wanted, who were just outside the courtroom as the case came on for hearing. Each of these three requests was opposed by the Crown and rejected by the court, the prosecution's lawyer being Travers Humphreys, a future judge and son of the High Court judge of the same name whom we have already frequently encountered and whom we are shortly to see in action once again. Deprived of his adjournments, Oram made no defence to the charge against him. Slater in contrast asserted that there had been ‘no real obstruction’ and that at the earlier meeting, Groves had spoken ‘with the intention of being arrested in order to bring before the Court a test case as to whether meetings could not be held outside labour exchanges, so long as they did not cause obstruction’. Both men were convicted with the Chairman of the magistrates’ bench observing that the ‘accused must realise that every precaution should be taken for the safety of those attending labour exchanges’. Slater was fined 40 shillings with £2 2s costs. Oram was fined 20s with £1 Is costs. An obviously embarrassed Groves pleaded in Parliament with the Under Secretary of State for the Home Department, Captain Crookshank, for remission of penalty for both men. This was unsuccessful, with the Captain rather superciliously declaring that ‘to put it mildly’, it was ‘inconvenient…[and] hardly fair to the officials in the Exchanges [to have]…the pandemonium of a public meeting just outside’.206

It was against this background of failed attempts at a test case, and of other deliberate transgressions of the Trenchard ban that also occurred at this time,207 that Mrs Katherine Sinclair Duncan made her famous (p.261) decision to address a meeting outside the Nynehead Street training centre on 30 July 1934, a mere three days after Slater and Oram had been convicted and fined. Mrs Duncan was a well-known radical and a leading member of the NUWM with a long history of political activism, having been jailed for a month in 1932 for refusing to be bound over to be of good behaviour.208 The evidence against her was supplied mainly by a solicitor named Clayton who heard her speak at a public meeting in Bermondsey Town Hall in 1931, with vital corroborative support being provided by a Detective Inspector Jones of the Special Branch, who had also been present at the meeting and who supplied the court with details of what he had written down from memory shortly after its conclusion.209 Now, three years later, Jones was back on Duncan's path, literally. Like the Stratford protests, the meeting at Nynehead Street took place in a cul-de-sac with houses on one side and the training centre on the other. It was specially contrived to make it impossible for the authorities not to act if they were at all serious about enforcing the Trenchard ban. The meeting was advertised by chalkmarks on the roadway headed ‘sedition’ and was called in order, it was said, to ‘defend the right of free speech and public meeting’.210 Those present and planning to speak included the general secretary of the Council for Civil Liberties, Ronald Kidd, the barrister A Bing and E Hanley from the Amalgamated Engineering Union. Inspector Jones and the local chief constable were also hovering in the background, together with an acting superintendent, another inspector, a sergeant and no fewer than ten constables.

Freedom of Assembly: the High Court's Decisive Blow

When Mrs Duncan commenced proceedings by mounting her soap box and beginning her address to the crowd (which by now numbered about (p.262) thirty), Inspector Jones intervened, and requested that Mrs Duncan switch the location of the meeting to a spot on another street some 175 yards away. This was a far more draconian request than Groves, Oram and Slater had had to face, and it was inevitable that it would be rejected. When Duncan refused to comply, she was immediately arrested and charged with the obstruction of a police officer in the execution of his duty, contrary to the Prevention of Crimes Act 1871, section 12, as amended by the Prevention of Crimes Amendment Act 1885, section 2. The case came before the magistrate a week later, and astonishingly no mention appears to have been made of the Trenchard ban. Neither was any attention drawn by the prosecution to section 52 of the Metropolitan Police Act 1839, which as we have seen had been considered by the police to be one of the legal bases of the ban when it had been contemplating its response to Kidd's letter. The irrelevance of this provision to Duncan's small meeting in a cul-de-sac must have been immediately obvious to Crown counsel. Instead, like Sir Herbert Samuel nearly three years before, and reflecting the original terms of the Trenchard ban, the whole emphasis in the case was on Jones having acted as he did to prevent a reasonably apprehended breach of the peace. The magistrate was informed that the ‘superintendent at the training centre had asked for the police in consequence of a riot that [had] followed a meeting held outside the centre once before’, and that it had been this earlier incident which had underpinned Jones's perfectly legitimate (so it was said) apprehension about the consequences of the meeting now. The secret police report to the Home Office in the immediate aftermath of the incident makes no mention of any such disorder, but it was enough to sink the test case. Duncan was duly convicted, and fined 40s with five guineas costs.

This talk of riot was heady stuff and it was hardly surprising that in light of it the magistrate had felt compelled to convict. When the case was taken on appeal to the London sessions, however, the riot had mysteriously disappeared, and had been replaced by allegations of a much milder protest of a quite different sort. A report in The Times throws the following interesting perspective on the factual basis for Jones’ supposed fears:

On May 25, 1933…a meeting had been held opposite the entrance to the training centre which Mrs Duncan addressed, and after that meeting a disturbance took place at the training centre. The superintendent of the training centre, who attributed the disturbance to the meeting, sent for the police to prevent a breach of the peace. Subsequently Mrs Duncan made one or more attempts to hold a meeting at the same spot, which attempts were frustrated by (p.263) the police. Before July 30, 1934, the superintendent of the training centre, who feared a repetition of the previous disturbance, communicated with the police, and, by reason of that communication and of reports made by the police, the chief constable of the district and the Inspector apprehended that a breach of the peace would result if the meeting of July 30, 1934, were held.211

The continuing absence of any reference to the Trenchard ban adds a dimension of the surreal to such a careful recounting of fact. Even accepting this version of events, Jones’ fears of an imminent breach of the peace would seem to have been rather overstated. The trouble that had occurred previously had been inside rather than outside the centre and two former employees gave evidence to the appeal court to the effect that it had arisen ‘in the centre from discontent and not because of a meeting outside’.212 There was even doubt as to whether it had been at Nynehead Street or at a neighbouring centre that this supposed disturbance had occurred.213 The London sessions, however, dismissed Duncan's appeal, with the deputy chairman Sir Herbert Wilberforce observing that ‘the only point was whether the police had reasonable cause to believe that a breach of the peace was likely to [have been] caused’.214 Clearly the bench was disposed to accept Jones’ word. The case was then taken to the Divisional Court on a point of law about the extent of the power of the police in respect of political meetings. The platform for the test case had been finally erected.

The case came on for argument on 16 October 1935, before a Divisional Court composed of Lord Hewart LCJ, Humphreys J and Singleton J. We have already met two of these judicial personalities on several occasions. As Travers Humphreys QC, the second had been chief Crown prosecution counsel in the communist trials nearly ten years before.215 He had also been involved in some of the disaffection cases that preceded the enactment of the Incitement to Disaffection Act 1934. The Lord Chief Justice, Gordon Hewart, had an even longer record of involvement in the issues discussed in earlier chapters. In 1916, as the then Liberal MP for Leicester, he had been knighted and appointed to the post of Solicitor General in Lloyd George's war-time administration. As such he would certainly have been required to take a view on the draconian controls on freedom of assembly that were promulgated under the Defence of the Realm Acts in that year.216 When the time came for the (p.264) enforcement of a similar regulation under the state of emergency proclaimed in 1921, Hewart had progressed to the Attorney Generalship and a place in the Cabinet.217 In such a position of seniority he would have been intimately involved in the application of this and of all the other emergency regulations of the day. Indeed so valuable an ally to the Prime Minister was he that Lloyd George was prepared to flout convention in order to ensure that he did not take the Lord Chief Justiceship immediately upon Reading's assumption of the Viceroyalty of India in 1921218. There can be little doubt that so political a figure as Hewart would have quickly recalled the resemblance between the police action in Duncan and the Regulations he had earlier patrolled on behalf of the State; it is also not unlikely that he would have been aware of the Trenchard ban and of the public controversy that had surrounded it in the years since its imposition.

This was the presiding judge before whom D N Pritt and the Liberal MP Dingle Foot launched their oral argument in Duncan v Jones. These two distinguished civil libertarians concentrated their rhetorical fire on the leading Victorian authority of Beatty v Gillbanks.219 Such a tactical decision was hardly surprising. This famous and frequently cited case appeared to reflect a common law commitment to just the sort of freedom of assembly that was in issue in the case before the court, and as we have seen it had been treated by no less an authority than Professor Dicey as exemplifying what he considered to be the civil libertarian strength of the common law.220 And as we saw in Chapter 4 above, it was frequently cited in Parliament during the debates about the emergency legislation in 1926: such was its political and legal significance. It will be remembered that in Beatty, the appellants (who were members of the Salvation Army) had been held by the Divisional Court to be entitled to assemble for a lawful purpose, despite there having been good reason to suppose that the effect of their gathering would have been to cause their opponents (the ‘Skeleton Army’) to commit breaches of the peace. Pritt and Foot accepted that the precise charge in that case differed from the one before the court, but they confidently submitted that the same principle governed both situations. The attraction of the precedent from their point of view was that it could be said to protect Duncan even if (p.265) (and it was never admitted) there had been a disturbance which had resulted from an earlier meeting which she had held, since, applying Beatty, she could not be taken to be ‘responsible for those who caused it, and the bad conduct of another person cannot make that wrong which is otherwise innocent’.221 For once, therefore, it was the mainstream of the English common law tradition, rather than some cleverly worked nook or cranny, that was being deployed in the defendant's favour in a political case. Quite simply, the police should have moved against those acting or proposing to act unlawfully, not those acting lawfully.

It might have been thought that the author of The New Despotism would have had a sympathetic ear for arguments rooted in the old common law about police excess which were put before him on Mrs Duncan's behalf. In fact Hewart's 1929 polemic had not given any very great impression of being concerned with excessive State power except insofar as it operated to the detriment of the wealthy in society.222 Indeed the Scots Law Times had commented of the book that ‘Lord Hewart might have done better service if he had not weakened his case by unfortunate illustrations and by a somewhat intemperate and violent use of language more suited to his former role of politician than to the judicial calm expected of a Lord Chief Justice’.223 But whatever his political skills, Hewart is now more frequently remembered as ‘perhaps the worst Chief Justice since the seventeenth century, not as being dishonest but as lacking dignity, fairness and a sense of justice’.224 It was distinctly Hewart the former law officer rather than Hewart the (selective) scourge of the executive that Pritt and Foot found listening impatiently to their submissions. Counsel for the police had barely got into his stride when he was stopped by the court, which then invited Pritt to sum up the arguments for his side. Having heard these out, the court then unanimously dismissed Duncan's appeal, without bothering even to reserve judgment so as to be able further to reflect either on what the result should be or on how the decision should be phrased. The result of such speedy adjudication was a decision which is as noteworthy today for the vacuity of its reasoning as for its long term deleterious effect on civil liberties. The case is well known for the latter, and frequently applied by the police, though its historical context has long been forgotten. Also neglected has been the mode of legal (p.266) reasoning deployed by the three judges who heard the case, and it is to these judgments that we now turn. There are few better illustrations in the law reports of the political dimension to the supposedly autonomous common law.

The leading judgment was that of the Chief Justice, though this seems an odd way of describing fifty-five lines in four paragraphs dealing with a matter of this political and legal significance. Hewart commenced by making clear what he considered the case not to be about:

There have been moments during the argument in this case when it appeared to be suggested that the Court had to do with a grave case involving what is called the right of public meeting. I say ‘called,’ because English law does not recognise any special right of public meeting for political or other purposes. The right of assembly, as Professor Dicey puts it, is nothing more than a view taken by the Court of the individual liberty of the subject. If I thought that the present case raised a question which has been held in suspense by more than one writer on constitutional law—namely, whether an assembly can properly be held to be unlawful merely because the holding of it is expected to give rise to a breach of the peace on the part of the persons opposed to those who are holding the meeting—I should wish to hear much more argument before I expressed an opinion. This case, however, does not even touch that important question.225

It is true that this may not have been the precise issue raised by the case; there were no hordes of antagonistic workers waiting to beat up Duncan if she continued to speak, thereby fortuitously bringing the issue of her protection full square within Lord Hewart's ‘important question’. But simply on that account to dismiss the whole notion that the case had anything at all to do with the right to hold a public meeting is remarkable. The right of public protest must include, if it is to mean anything at all, the liberty to speak to people who want to hear you, whether or not there are others present not inclined to let you communicate. If anything, the simple matter of addressing a crowd without hindrance raises a far more obvious and simple issue of free speech than the more complicated situation where a speaker's communication is causing opponents to resort to violence. It is hard not to resist the conclusion that the only purpose of Hewart's distinction was to enable him to dispense with the precedential power of Beatty v Gillbanks, and he may indeed have had a point in wanting to do this.

(p.267) It would have been well known to Hewart that the police had in the past regularly and without legal challenge acted in precisely the way that Mrs Duncan and her civil libertarian colleagues now thought both obnoxious and unlawful. Quite apart from the Trenchard ban, we shall see in the next chapter how frequently the police deployed a Duncan v Jones power in advance of the case itself to limit the liberty of anti-fascist protestors in the early 1930s.226 In a case from Sheffield in 1926 to which we have referred in Chapter 3 above, one Harry Webb had been prevented by the police from speaking to a crowd outside a factory gate despite the lack of any violence and the fact that meetings had been regularly held at that precise spot for some twenty years.227 It may be that it was this informal world of de facto police power that Hewart had in mind when he turned to Beatty v Gillbanks:

Our attention has been directed to the somewhat unsatisfactory case of Beatty v Gillbanks. The circumstances of that case and the charge must be remembered, as also must the important passage in the judgment of Field J., in which Cave J. concurred. Field J. said: ‘I entirely concede that every one must be taken to intend the natural consequences of his own acts, and it is clear to me that if this disturbance of the peace was a natural consequence of acts of the appellants they would be liable, and the justices would have been right in binding them over. But the evidence set forth in the case does not support this contention; on the contrary, it shows that the disturbances were caused by other people antagonistic to the appellants, and that no acts of violence were committed by them’. Our attention has also been directed to other authorities where the judgments in Beatty v Gillbanks have been referred to, but they do not carry the matter any further, although they more than once express a doubt about the exact meaning of the decision. In my view, Beatty v Gillbanks is apart from the present case. No such question as that which arose there is even mooted here.228

This is the common law at its least persuasive. The decision is ‘somewhat unsatisfactory’ (for reasons not explained); its ‘circumstances…and…charge must be remembered’ (though neither is explicitly recalled); ‘the important passage’ in Field J's judgment is in fact a casual concession to counsel and wholly obiter; the ‘other authorities’ which ‘more than once’ doubt Beatty's meaning are not referred to. All this is designed to attach a kind of spurious credibility to the extraordinary conclusion that Beatty is ‘apart from the present case’.

(p.268) Freed of this key precedent, Hewart devotes his penultimate paragraph to an obscure dictum from a case dealing with licensed premises, which he erects to the level of a principle:

The present case reminds one rather of the observations of Bramwell B. in Reg. v Prebble,229 where, in holding that a constable, in clearing certain licensed premises of the persons thereon, was not acting in the execution of his duty, he said: ‘It would have been otherwise had there been a nuisance or disturbance of the public peace, or any danger of a breach of the peace’.

Armed with this quotation, Hewart then returns with confidence to the facts before him, concluding his judgment in the following way:

The case stated which we have before us indicates clearly a causal connection between the meeting of May, 1933, and the disturbance which occurred after it—that the disturbance was not only post the meeting but was also propter the meeting. In my view, the deputy-chairman was entitled to come to the conclusion to which he came on the facts which he found and to hold that the conviction of the appellant for wilfully obstructing the respondent when in the execution of his duty was right. This appeal should, therefore, be dismissed.230

Like the Chief Justice, Humphreys J also saw the decision as ‘a plain case’ having ‘nothing to do with the law of unlawful assembly’.231 This part of the common law was so obvious that discovery of it did not require evidence of case law in the ordinary way: ‘It does not require authority to emphasise the statement that it is the duty of a police officer to prevent apprehended breaches of the peace’.232 Armed with this awareness of the law, Humphreys J could naturally ‘conceive [of] no clearer case within the statutes than’ the one before him.233 Singleton J was similarly emphatic in his seven line concurring judgment, remarking with Beatty probably primarily in his mind that ‘[a]uthorities in other branches of the law do not carry the matter any further’.234

Much of the academic scholarship on Duncan v Jones has been devoted to attempts to reconcile it with Beatty v Gillbanks.235 Contemporary critics of the decision were less interested in its technical virtues or vices than in its effect on the powers of the police. One treatise, published in 1934, commented that before the case ‘it was taken for granted that the powers of the police authorities to prevent the holding of a meeting on a public (p.269) highway were limited to cases of obstruction, breaches of the peace and disorderly conduct’ but that Duncan v Jones now showed that ‘much greater powers’ were in fact available to them.236 The disappointed General Secretary of the Council for Civil Liberties Ronald Kidd thought the decision ‘perfectly clear’:

It establishes the precedent that the police have power to ban any political meeting in streets or public places at will: no matter that such meetings are held in blind alleys where they cannot interfere with traffic; no matter that they are peacefully conducted; no matter that they are local people's only means of ventilating their opinions or pressing for redress of grievances. The police are set up by this judgment as the arbiters of what political parties or religious sects shall and shall not be accorded the rights of freedom of speech and freedom of assembly—two civil rights which even the judges of earlier times were jealous to protect.237

Writing in a similar vein in the Cambridge Law Journal, ECS Wade considered that since Duncan v Jones, ‘the net has closed entirely upon those who from lack of resources, or for other reasons, desire to hold meetings in public places’.238 Wade understood that the Home Office was ‘satisfied that the powers of the police to deal with disorder at public meetings [were] sufficient’.239 This was surely correct. The last thing the authorities now wanted was statutory clarification, a point made with typical acumen in the pages of the Police Journal:

[T]here is often uncertainty as to the meaning of an Act of Parliament and its application to particular facts. Indeed it is manifest that the police are better served by the common law—with all its elasticity and adaptability—than they would be by any rigid statutory code; and in our view at any rate their existing powers at common law, including the power of taking preventive action in connection with apprehended breaches of the peace and the power of dispersing an unlawful assembly or a riot, are sufficient to enable the police to discharge effectively their responsibilities.240

It would appear from the Home Office files that this article was in fact contributed by a departmental official. The department's chief anxiety about Duncan when it was decided was with whether or not it required evidence of a previous disturbance before the police could be said to be justified in breaking up a meeting. Having carefully perused the decision, (p.270) an official minute recorded that evidence of such earlier disorder was not required, and had merely been evidence of the reasonableness of the police apprehension in the case before the court. The departmental minute ended with an assurance to colleagues that ‘We may sleep in our beds’.241

When Pritt sought to raise the case in the Commons during a Home Office supply debate, the Home Secretary, Sir John Simon, intervened to enquire in mock horror whether he was being asked to ‘champion the view of the Lord Chief Justice against the view of the hon and learned Gentleman’.242 The deputy-chairman overseeing the debate promptly intervened to remind Pritt that ‘[w]hat is laid down by a competent court of law we must regard at the moment as being the law of the country. On Supply we must not discuss matters involving legislation’.243 Pritt duly conformed, stressing that he had had ‘no intention whatever of discussing the court’ and that his only concern was that:

the law is in such a difficult state that it is extremely easy for the police to take repressive measures and find that often they are approved of by the courts as acting in accordance with the law. I am criticising the police alone.244

It was, however, a matter of great concern to Pritt that ‘the moment [he began] to attack the police the right hon. Gentleman, having one of the acutest minds in England, thinks naturally and inevitably that [he] must be attacking the court instead’.245 Nevertheless there can be no better illustration of the covert nature of judicial law-making. Like Elias v Pasmore before it, the legal status of Duncan v Jones insulated it from political criticism, and this was regardless of the novelty of its repressiveness, the obviousness of its political bias or the faultiness of its reasoning. At least the Emergency Regulations which were the forefathers of Duncan v Jones had required the Lord Hewarts of the political world to defend their content in Parliament, explaining their necessity and what was required to be done under their authority. Now as Lord Chief Justice, no elected representative was allowed even to discuss, much less criticise or condemn, Gordon Hewart's draconian law-making.

(p.271) Conclusion

In this chapter we have seen a continuation of the deployment of the full force of the law against the Communist Party, directly in respect of the Incitement to Disaffection Act 1934 and indirectly in respect of the action against the NUWM. Even if our earlier chapters had not prepared us for such a conclusion, the sheer inappropriateness of Dicey's approach to the Rule of Law would have been made unavoidably clear by the events and cases that we have discussed. Indeed it is hard to say which of the limbs to Dicey's three-pronged definition is the more fatally undermined by the circumstances we have chronicled. The binding over orders used to clear the political leadership of the NUWM out of the way at critical moments could hardly be said to have endorsed Dicey's claim that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land’. While Dicey's second principle might indeed be true, that ‘here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts’, the clear message to flow from this chapter is that some men (and women) were a great deal more amenable than were others, a point that will be made even clearer when we discuss the treatment of the fascists by the law in the following chapter. But perhaps the principle most mocked by this chapter is Dicey's third, in which he claims that ‘the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts’. To put it at its very mildest, the decisions discussed in this chapter sit uneasily with such a grandiose, civil libertarian claim.

From the perspective of constitutional principle, the events dealt with in this chapter reinforce earlier conclusions about the fragility of the Rule of Law in times of State anxiety or perceived emergency. This chapter more closely recalls part of the story told in Chapter 3 than it does those recounted in Chapters 2 or 4 because here, just as in the mid-1920s in respect of the actions taken at that time against the Communist Party, the State found itself conducting its campaign of oppression through the medium of ordinary rather than emergency law. The overriding impression is of all three branches of government joined in hostile action against a radical minority. This might be expected from a government that was for much of the period of discussion in this chapter dominated by the Conservative Party, and (p.272) therefore by many of the political actors who had been closely involved in the anti-communist actions of the 1920s. As we have seen, however, this process also involved both the legislative and the judicial branches of the State. As far as the first of these is concerned, the enactment of the Incitement to Disaffection Act 1934 marked the introduction into the law in a permanent form of police powers and substantive offences that had hitherto been regarded as unacceptably broad and therefore permissible only in exceptional circumstances. Indeed it was an understanding of this dimension to the Bill that underlay much of the hostility with which it was greeted when first introduced in Parliament. Though Parliament was eventually persuaded to pass the measure, it was during the debates on the Incitement to Disaffection Act that the legislative body came closer than it has yet done in the course of this book to appreciating that its function was the double-sided one discussed in Chapter 1, namely to hold the executive to account as well as to legislate at its invitation.

As far as the judiciary is concerned, the story is very much grimmer. The cases discussed here achieved the transformation of what had been emergency law into the mainstream of the common law. But Elias v Pasmore and Duncan v Jones go even further than this, in that they represent what amounts to the retrospective according of judicial legitimacy to executive acts previously considered of, at the very least, doubtful legality. Nothing more explodes the idea of a judicial branch evervigilant on liberty's behalf than the casually restrictive judgments of Horridge J in Elias v Pasmore and Hewart LCJ and his colleagues in Duncan v Jones. After the latter decision in particular, it becomes impossible to view Beatty v Gillbanks as other than the eccentric exception that it truly was, whatever Dicey may have thought of it when compiling his Oxford lectures on the constitution in 1885. The senior judiciary's particular contribution to the history of civil liberties in the 1930s was to extend the executive's repressive power into the ordinary law, without any of the publicity, accountability or clarity that had been so damaging to the executive during the passage of the 1934 Act. But what was also troubling about the common law development was the sheer scale of discretion which was conferred as a result on the police, whether it be to seize papers in the course of a raid (a practice which could be justified by what was found), or equally significantly, in the power simply to ban a political meeting on the flimsiest of grounds. This will become much clearer in the following chapter.

Turning now to the lessons for constitutional practice from this chapter, we see once again in this book the spectacle of a State mobilising all its (p.273) branches to control forms of political speech and public protest of which it vehemently disapproved. It might be expected that the police would view with distaste the mass meetings and processions that marked the era of the hunger marches in Britain, but it still comes as something of a surprise to learn of the extent of the lawless violence that they meted out to such protestors, apparently without fear of punishment or subsequent legal proceedings. As was the case in Chapter 3, once again we see the secret service engaged in predictable canvassing for further repression, this time in relation to the Incitement to Disaffection Act. Most depressing of all, however, is the enthusiastic willingness of successive governments and the courts to go along with, and indeed occasionally to amplify, such reflexive repressiveness. The values of liberty and freedom to which many senior figures in British politics and law declared themselves genuinely committed during this period seem to have had no connection whatsoever in their own minds with the clamping down on the civil liberties of members of the CPGB and the NUWM in which so many of them were at exactly the same time so actively involved. As that emblematic figure from the 1920s, William Joynson-Hicks, had so precisely put it during that earlier period of State coercion, the problem with the exercise of traditional civil liberties in such contexts was that they did not involve ‘the right kind of freedom of speech’.246

One of the most significant new developments during the period recorded in this chapter was the establishment of the NCCL.247 Its moving spirit, Ronald Hubert Kidd, had campaigned for women's suffrage and lectured for the Workers’ Educational Association before going into service in the First World War. Having subsequently been employed as a civil servant and an actor, his background made him in some ways an unexpected but in others an ideal head of a national movement for the protection of liberty. His rise to prominence had been triggered by a public exchange of views in August 1933 with the well known writer A P Herbert on the use of agents provocateurs by the police, a dialogue which Kidd had cleverly widened to embrace this sort of police activity in the context of the hunger marches. Early in 1934, a provisional committee was set up with representatives drawn from the arts, literature, journalism, medicine and the law. A circular letter drawing attention to the new Council for Civil Liberties dated 1 February 1934 drew still wider support, and the Council's effective interventions in the debate about the Incitement to Disaffection Bill that then ensued guaranteed its successful (p.274) establishment as part of British civil society. But its strategy of using the courts to secure better protection for political freedom did not prove successful, with Duncan v Jones having long outlived the Trenchard ban as a source of open-ended police power to restrict civil liberties. The organisation's tactical use of the courts raises full-square the question of whether the Rule of Law can function as a guardian of civil liberties, a point of central importance to this book, and one to which we shall return in the chapters that follow.


(1) [1934] 2 KB 164.

(2) [1936] 1 KB 216.

(3) S Glynn, No Alternative? Unemployment in Britain (1991), p 88. Much of the economic data that follows is drawn from this work. Also helpful to understanding the background is F M Miller, ‘The Unemployment Policy of the National Government, 1931–1936’ (1976) 19 Historical Journal 453.

(4) Among the Orders in Council made under the Act were the National Economy (Unemployment Insurance) (No. 1) Order (S R & O 1931 No 814) setting out new rates of contribution and benefit and the National Economy (Unemployment Insurance) (No. 2) Order (S R & O 1931 No 853) dealing with transitional payments to replace benefits in certain cases.

(5) Glynn, n 3 above, p 89.

(6) See J Klugmann, History of the Communist Party of Great Britain, vol 1 (1968), pp 121 et seq.

(7) The Daily Herald observed of the event that ‘the manner in which the police in a mad frenzy were ordered to charge up and down Whitehall running down and clubbing men, women and children is only on a par with the sort of outrage committed by the Black and Tans in Ireland’: Daily Herald, 19 October 1920. Wal Hannington, who estimated the crowd at 40,000 in his autobiography, Never on our Knees (1967), p 80, described the police action as a ‘merciless and unprovoked attack’: ibid, p 81. For a full account of the disorder, and for the similar consequences that followed a demonstration in Liverpool the following year, see J Morgan, Conflict and Order. The Police and Labour Disputes in England and Wales, 1900–1939 (1987), pp 234–7. Morgan's work is a valuable source for many of the details of the activities of the police and the NUWM during the 1920s and 1930s. The relevant Home Office file on the October 1920 disturbances is however closed for 100 years: ‘Demonstration by the unemployed in October, 1920—made the occasion of rioting by an unruly mob’ (PRO, HO 144/1692).

(8) Morgan, n 7 above, p 237. See P Kingsford, The Hunger Marchers in Britain 1920–1940 (1982). ‘The leadership of the unemployed movement was taken, from the beginning, by the Communist Party, along with a number of militants of the I.L.P., local Labour Parties and the trade union movement’: Klugmann, n 6 above, p 128.

(9) The national organiser of the NUWCM from its inception, Wal Hannington, described some of this press coverage in his autobiography: ‘The day before this demonstration several leading daily newspapers launched a vicious front-page campaign of lies and slanders against the marchers and the leaders of the movement. They declared that 100,000 armed men intended to march on Downing Street. They invented scare stories about the bloody consequences. They alleged—completely untruthfully—that there were men with criminal records in the leadership of the marchers. Here are some of the banner headlines which appeared in these papers: Daily Express: “Great Communist Plot Exposed"—“Whitehall Riot Plan"—“Notorious Criminals as Leaders"— “Revolutionary Attempt…”. Daily Mail: “Downing Street and a Red Plot"—“Whitehall Riot Scheme”. Pall Mall Gazette (evening paper): “Communist Plot in London"—“Organised Plan to Provoke a Riot at Dictation of Moscow"—“Incitement to Violence” ’: Hannington, n 7 above, p 142.

(10) Hannington, ibid, p 143, claimed 70,000. The Daily Sketch, 23 November 1922 estimated 50,000.

(11) Hannington, n 7 above, p 151. See Klugmann, n 6 above, pp 125–8.

(12) There were however a number of marches in Scotland during this time. See for example National Unemployed Workers’ Committee Movement, Scottish Miners’ March to Edinburgh (1928).

(13) Morgan, n 7 above, pp 241–3. A further demonstration at Temple underground station in London on 16 December 1930 was outnumbered two to one by the police because it was ‘much smaller than was anticipated’ (H C Debs, 18 December 1930, col 1406 (Mr Clynes)). Note that the public do not have access to the relevant Home Office file in the PRO: ‘Unemployed miners’ march to London in 1927’. ‘March of the Unemployed to London in 1929’. ‘Hunger march to London in 1930’ (PRO/HO/144/12143). The file is closed for 100 years. Also closed for 100 years is ‘Communist Party and National Unemployed Workers’ Movement: demonstrations and speeches, 1930–1 (PRO, HO 144/22581).

(14) H C Debs, 9 September 1931, col 254 (J J McShane).

(15) Ibid, col 252.

(16) Ibid, col 257 (Miss E C Wilkinson).

(17) Ibid, col 263.

(18) Ibid, col 249 (C J Simmons).

(19) This may seem slightly surprising in view of the events discussed at length in Chapters 3 and 4 above, but consider how a problem with detention on remand in Buenos Aires in 1930 provoked a highly critical Justice of the Peace into the following encomium of the position in the United Kingdom: ‘In a country where the liberty of the subject is really guarded with the utmost jealousy, an unwarranted detention or a high-handed arrest, whether at the instance of a responsible Government Department or a humble police constable would always provoke a popular outcry, and judges have always been quick to check the least encroachment upon the individual's rights, so that today such infringements of liberty are almost unknown’: ‘The Liberty of the Subject’ (1930) 94 JP 358. Such fine sentiments did not prevent the same journal defending the dispersal of the unemployed around Westminster on 8 September, remarking that the ‘crowd has its safety valve in Hyde Park’ (1931) 95 JP 626.

(20) Hannington, n 7 above, pp 239–40. Hannington had been jailed with five Coventry leaders of the unemployed in 1922, having refused to be bound over on that occasion as well: Daily Mirror, 7 April 1922. His personal Home Office file (‘Walter Hannington: subversive activities’: PRO, HO 144/20618) is closed for 100 years.

(21) See also Aldred v Langmuir, 1931 SLT 603, and generally Chapter 3 above for earlier examples of the control of meetings.

(22) Morgan, n 7 above, p 246. Even before the ‘national day of struggle’, nine men had been charged with disorderly and riotous conduct at Kilbirnie in Scotland on 8 February, amid allegations that the police had unnecessarily batoned a crowd that had gathered after a deputation had made representations to the public assistance committee for the area. All nine were convicted: H C Debs, 8 June 1932, cols 1931–2 (Sir A Sinclair, Secretary of State for Scotland). There was particular concern about the behaviour of the police in Scotland towards the NUWM protestors: see the supply day debate in the Commons at H C Debs, 28 June 1932, cols 1741–57.

(23) Daily Sketch, 24 February 1932.

(24) See correspondence between the Chief Constable and his counterpart in Manchester in the Bristol Record Office, cited by Morgan, n 7 above, p 246. The key Home Office file is closed for 100 years: ‘Demonstrations by Bristol unemployed workers between 12 April and 28 October 1932’ (PRO, HO 144/22587).

(25) S Bowes, The Police and Civil Liberties (1966), p 29. For a description of the violence in both places, see Hannington, n 7 above, pp 252–4. One of the key Home Office files is however closed for 100 years: ‘Police arrangements to prevent disorder at public meetings in Liverpool, 1931–8’ (PRO, HO 144/21037).

(26) Hannington, n 7 above, p 255. See ‘Belfast's night of terror’: News Chronicle, 12 October 1932.

(27) Morgan, n 7 above, p 248. For a heartbreaking example of how far the authorities were prepared to go to harass hunger marchers, so severe that it was even too much for the Scottish judges who heard the appeal in the case, see Wilson v Mannarn, 1934 JC 92.

(28) Morgan, n 7 above, pp 249–50, citing MEPO 2/3039.

(29) Morgan, n 7 above, pp 249–50, citing MEPO 2/3039. We can only surmise about how much we might learn from: ‘Powers and duties of the police at meetings, processions and demonstrations, 1932–3’ (PRO, HO 144/18294), since the Public Record Office file is closed for 100 years.

(30) See H C Debs, 18 October 1932, cols 4–5; H C Debs, 27 October 1932, col 1187 (WA). The new Home Secretary Sir John Gilmour refused in each case to order an inquiry into the behaviour of the police.

(31) H C Debs, 19 October 1932, col 269. The whole debate is at ibid, cols 264–90.

(32) Ibid, col 275. Another deputation to the LCC the following week was accompanied by no fewer than 1,000 police and special constables: H C Debs, 2 November 1932, col 1796 (Sir J Gilmour) (WA).

(33) J L Grant, ‘The Hunger Marchers and the Police’ [1932] Socialist Review (Winter) pp 243–4, quoted in Morgan, n 7 above, p 251. For another contemporary account from the same perspective, see Hannington, n 7 above, pp 262–5.

(34) Daily Herald, 28 October 1932. See further the Daily Worker, 28 October 1932.

(35) For the full statement, see H C Debs, 28 October 1932, cols 1315–17.

(36) See H C Debs, 31 October 1932, cols 1442–4 (Sir J Gilmour). The total number of injuries sustained as a result of the disorder on 27 and 30 October was 93 (public) and 32 (police): H C Debs, 9 November 1932, col 340 (Sir J Gilmour). See also Daily Worker, 31 October 1932.

(37) See the complaint about his access to the Commons voiced by Earl Winterton: H C Debs, 3 November 1932, cols 1952–4.

(38) Evening News, 1 November 1932.

(39) It was returned to the NUWM on 3 November 1932: H C Debs, 14 November 1932, cols 743–4 (Sir J Gilmour, from whom the quote in the text is also drawn).

(40) For further details of the press campaign, see Hannington, n 7 above, pp 265–7. In an editorial headed ‘Moscow's game’ which appeared on 1 November, the Evening News castigated the leadership of the NUWM for being ‘under the orders of Moscow’. Five days later, on 6 November, the Sunday Dispatch ‘revealed’ in a front page lead story that the hunger marchers had been ‘backed by red gold’.

(41) H C Debs, 2 November 1932, col 1785.

(42) The key Home Office files on these episodes are closed for 100 years: ‘Communist Party and National Unemployed Workers’ Movement: demonstrations and speeches, 1932–3’ (PRO, HO 144/22582); ‘Demonstrations by unemployed in London, 1931–2’ (PRO, HO 144/16355); ‘National Unemployed Workers’ Union: march to London in protest against means test, 20 September-31 October 1932’ (PRO, HO 144/18186); ‘National Unemployed Workers’ Union: march to London in protest against means test, 1 November 1932–2 January 1933’ (PRO, HO 144/18187).

(43) Bowes, n 25 above, p 110.

(44) Hannington, n 7 above, pp 268–9.

(45) The authorities may have been particularly sensitive about the police in view of the pay cut that was being imposed on the force at exactly this time: Reynolds News, 6 November 1932. The 1919 Act had previously been used against two Greenock councillors for words spoken while addressing a communist meeting on 13 September 1925: see Chapter 3 above.

(46) Sir Chartres's enthusiasm for the preservation of public order may be deduced from the following comments made from the Bench in the course of one of the many cases he dealt with arising out of the disorders on 1 November: ‘I should like it to be generally known that if any citizens are present when any disorder arises it is their duty to help the police. If they are called upon to help the police and they do not do it, they are guilty of an indictable offence’: (1932) 96 JP 733. In making this remark, Biron was perhaps intending to achieve the same end result as that desired by the Home Secretary when he had earlier warned that ordinary people should stay away from the marches and demonstrations: see text at n 35 above.

(47) (1932) 96 JP 736. Further details are to be found in the Daily Worker, 9 November 1932.

(48) H C Debs, 23 February 1933, col 1886. Compare H C Debs, 19 December 1932, col 754. Hannington and Elias were already in jail at this stage of course. There are two files in the Public Record Office under the tantalising tide, ‘Two organisers (Tom Mann and another) of a proposed mass demonstration of unemployed, imprisoned for refusing to enter into recognisance to keep the peace and be of good behaviour. Correspondence between the Prime Minister and the Home Secretary; approval of the court proceedings invoking an Act of 1360’ (PRO, HO 144/19835 and 19836), but both are closed for 100 years.

(49) H C Debs, 23 February 1933, col 1885 (F S Cocks).

(50) H C Debs, 19 December 1932, col 754 (Sir J Gilmour).

(51) Daily Worker, 5 December 1932, See the adjournment debate in the House of Commons at H C Debs, 22 December 1932, cols 1268–300. The newspaper was itself also attacked by the State in a more direct fashion. In December, the individual responsible for the Daily Worker as editor, publisher and proprietor was tried at Leeds Assize on a charge of libelling the police. A term of imprisonment of six months was handed down: see (1932) 96 JP 838.

(52) See George Lansbury's speech in the adjournment debate at H C Debs, 22 December 1932, col 1287, from where the quotation in the text is taken.

(53) H C Debs, 19 December 1932, col 755.

(54) At the end of the month, the Eton and Cambridge-educated Sir Chartres Biron retired from the Bench, with the acclaim of the legal and political élite ringing in his ears. The contrast with Tom Mann, aged 76, the veteran activist, who had been imprisoned for incitement to mutiny in 1912, starting yet another term in jail—this time over Christmas—could not have been more stark. For a particularly fulsome tribute to Sir Chartres, see (1933) 97 JP 33. Mann's two part Home Office file is available to be perused at the Public Record Office: see ‘Activities of Tom Mann, agitator’ (PRO, HO 144/7062).

(55) J Stevenson and C Cook, The Slump: Society and Politics During the Depression (1977), p 164.

(56) Ibid, p 190. Stevenson and Cook's volume is a valuable, if sceptical, account of the NUWM and the marches and demonstrations of the period. On the leadership of the Movement in 1936 see N Branson, Histoiy of the Communist Party of Great Britain, 1927–41 (1985), p 156.

(57) This was W H Thompson, author of Civil Liberties, published in 1938, arguably the first text on civil liberties in Britain.

(58) D N Pritt later claimed in the Commons that a hundredweight of documentation had been taken by 11 police officers: H C Debs, 10 July 1936, col 1563. The Evening Standard's contemporaneous report on 1 November stated that five hundred-weights of material had been seized.

(59) As we shall see it was in fact a civil claim that Thompson was contemplating.

(60) Hannington, n 7 above, p 278.

(61) (1765) 19 St Tr 1030.

(62) See Chapter 3 above.

(63) H C Debs, 14 July 1921, col 1458.

(64) Ibid.

(65) For example, when the issue arose again four years later, in the context of the raid on the Communist Party which had preceded the 1925 prosecutions, the then Home Secretary Sir William Joynson-Hicks had used an almost identical formula: H C Debs, 17 February 1926, col 1960 (WA). For the background to this raid, see Chapter 3 above.

(66) Cmd 3297 (1929).

(67) When the Under Secretary of State at the Home Office, O F G Stanley assured the Commons in February 1933 that the 1 November search had followed a ‘practice…[that]…has constantly been brought to the notice of the Courts, and was recognised as necessary and proper by the Royal Commission on Police Powers’, he made no mention of, much less made an effort to justify, the seizure power that had accompanied that search. When Sir Stafford Cripps intervened to ask whether the police now had a right ‘to search offices in which a man is employed, when the warrant is against the man alone and not against the body which employs him’, Stanley's defensive reply was that if ‘on any occasion the police in a search of this kind exceed their powers the remedy lies in the civil courts’: H C Debs, 9 February 1933, cols 341–2.

(68) Hannington, n 7 above, p 279.

(69) See the report of argument in the case in The Times, 17 January 1934, from which the interchange between the Attorney General and the judge that follows is also taken.

(70) The Attorney General dropped the submission ‘for the purposes of this case only’: see [1934] 2 KB 174. The point is not dealt with in the judgment.

(71) See Chapter 3 above.

(72) Ibid.

(73) In fact only one letter, signed ‘P C’, a copy of which was found on Hannington, fell into this category.

(74) [1934] 2 KB 164, at p 173. For an interesting summary of the common law as it was believed to be pre-Elias v Pasmore, see Anon., ‘Police Seizures of Property’ (1931) 95 JP 98.

(75) Ibid.

(76) See respectively Pringle v Bremner and Stirling (1867) 5 M (HL) 55; Dillon v O'Brien (1887) 20 LR Ir 300; and Crozier v Cundey (1827) 6 B & C 232.

(77) [1934] 2 KB 164, at p 172.

(78) Ibid, at p 171.

(79) [1970] 1 QB 693.

(80) Ibid, p 706.

(81) Ibid.

(82) Ibid.

(83) Ibid.

(84) See New Statesman and Nation, 27 January 1934, p 107. But cf Manchester Guardian, 24 January 1934.

(85) D N Pritt, The Autobiography of D N Pritt, Vol 1: From Right to Left (1965), p 139.

(86) (1934) 7 Police Journal 144, at p 146.

(87) (1934) 53 Law Notes 374.

(88) E C S Wade, ‘Police Search’ (1934) 50 LQR 354, at pp 359–60.

(89) See Branson, n 56 above, ch 5.

(90) T Young, Incitement to Disaffection (1976), pp 49–50.

(91) H C Debs, 6 June 1930, cols 2564–5 (WA) ( Sir J Simon). It is not clear from the parliamentary record what, if any, action was taken against those distributing the material.

(92) See the description of the case in these terms given to Parliament by the Home Secretary, J R James at H C Debs, 7 May 1930, col 1036. Each of the three defendants was fined £2. There was similar prosecution arising out of an incident at Hounslow on 12 April.

(93) Daily Worker, 5 January 1931. One of the men had been in ‘his younger days a champion wrestler and an idol of the fans in Wales’.

(94) The pamphlet concerned was contained in an envelope marked ‘Lee's Tip for the Derby’ and was left close to barracks at Chatham, Aldershot, Yorkshire, Newcastle, Edinburgh and Wellington. Only the distributors of the pamphlet at Aldershot and Brecon were caught, with the two persons convicted at the latter assize under the 1797 Act being sentenced to 12 and 8 months’ imprisonment respectively. There was no indication on any of the pamphlets as to who had printed or published them: see the remarks of the Attorney General, Sir William Jowitt, at H C Debs, 7 July 1930, cols 35–6.

(95) Swift J had presided over the communist sedition trial in 1925, a fact that did not go without notice in the columns of the Daily Worker. A partner in the Workers’ Press was later jailed for six months on the same charge: Daily Worker, 19 January 1931; ibid, 24 January 1931. See also (1930) 94 JP 470.

(96) Daily Worker 6 January 1931; ibid, 21 January 1931; ibid, 22 January 1931.

(97) Young, n 90 above, p 51. The defendant was bound over to keep the peace for 12 months.

(98) The Labour Home Secretary, J R Clynes, found himself frequently required in the Commons politely to decline to declare outright war on the communist leafleteers. It was ‘not necessary’ to appoint ‘a committee to investigate the question of Communist propaganda in Great Britain’, he assured one MP who had expressed in Parliament an enthusiasm for the idea: H C Debs, 29 May 1930, cols 1505–6 (WA).

(99) An example of one such leaflet was the one distributed to the forces in May 1930 headed ‘We must not murder the workers and peasants of India’: H C Debs, 26 June 1930, col 1349. It is reprinted in full in Branson, n 56 above, p 72.

(100) H C Debs, 7 May 1930, col 990.

(101) Ibid, col 1034.

(102) Ibid, col 1035.

(103) Ibid, col 1037.

(105) Young, n 90 above, p 52.

(106) Daily Worker, 26 September 1931. Bowes, n 25 above, p 110: detectives ‘ransacked the offices and printing plant and employees’ personal belongings and, censoring the paper, did not allow it to go to press until a number of deletions they had ordered had been made’. See the brief exchange on the affair between W J Brown and the Under Secretary of State for the Home Department, O Stanley, at H C Debs, 30 September 1931, cols 358–60. Stanley refused to go into any details on the basis that the ‘matter ha[d] culminated in criminal proceedings’ and was therefore subjudice: ibid, col 358.

(107) Daily Worker, 28 September 1931.

(108) See the report of the judge's remarks in (1931) 95 JP 674.

(109) See Chapter 3 above.

(110) See p 263 below.

(111) See (1931) 95 JP 738, from which the quotations that follow are also taken.

(112) Daily Worker, 24 November 1931. Public anxiety at the conduct of the authorities after Invergordon centred on the use of agent provocateurs, and one particularly unpleasant case arose out of an elaborate trap set for two defendants by a couple of sailors taking their instructions from their superiors. In sentencing the two (who were, perhaps inevitably, associated with the Daily Worker) to 20 months and 3 years imprisonment respectively for incitement to mutiny, Acton J felt compelled to declare that the witnesses for the prosecution were not provocateurs in the ordinary sense: see Young, n 90 above, pp. 55–6; (1931) 95 JP 754; Daily Worker, 5 October 1931; 27 November 1931. The Home Secretary, Sir Herbert Samuel, refused to intervene in the sentences of any of the three men: see H C Debs, 9 December 1931, cols 1861–2.

(113) H C Debs, 9 May 1932, col 1549.

(114) H C Debs, 6 July 1933, col 508.

(115) On the rise of the fascists, see Chapter 6 below.

(116) See Young, n 90 above, pp. 61–2. The Public Record Office is not as helpful in this area as might have been expected. The following files are closed for 100 years: ‘Communist propaganda to incite His Majesty's Forces to mutiny. Sedition charges against John Gollan’ (PRO, HO/144/22373); ‘Communist propaganda: question of expediency in instituting prosecutions’ (PRO, HO 144/9486); ‘Communist propaganda: articles contravening the law, 1931–2’ (PRO, HO 144/22588).

(117) See Chapter 3 above.

(118) PRO, CAB/179, CP 136 (26), Report of the Public Order Committee, 25 March 1926.

(120) Ibid, para 8.

(121) For Regulations 27, 42 and 42A of the DORR, see Chapter 2 above. The attempt to insert versions of these Regulations into the annual Army Bill in 1919 had drawn fierce criticism in the House of Commons, with the proposals being withdrawn: H C Debs, 2 April 1919, cols 1252–76. The government had more success with the Aliens Restriction (Amendment) Act 1919, s 3(1), which was loosely based on Regulation 42: see Chapter 3 above. For similar Regulations, introduced during the General Strike, see generally Chapter 4 above.

(122) ‘Undaunted by this annoying but instructive set-back [i.e. the legislative defeat in 1919], the Army Council launched a political crusade for permanent measures to deal with propagandists which was to continue more or less uninterrupted until 1934’: Young, n 90 above, p 29.

(123) This discussion draws heavily on C Andrew, Secret Service (1986), pp 517–18. Also helpful is young, n 90 above, p 57.

(124) Dictionary of National Biography, 1951–60 (1971), p 988.

(125) Report of the Commissioner of Police of the Metropolis for the Year 1932, Cmd 4294 (1933), p 14. In a memorandum he compiled listing the deficiencies he had found in his first six months in office, Trenchard complained that the ‘Police Federation was holding 480 meetings a year and this has been going on for some twelve years. The Police Act of 1919 only sanctioned twelve meetings a year of one day each’: quoted by A Boyle, Trenchard (1962), p 608. The Commissioner does not return to his disaffection theme in his Report for 1933, published at the same time as the second reading of the Incitement to Disaffection Bill: Report of the Commissioner of Police of the Metropolis for the Year 1933, Cmd 4562 (1934).

(126) See Andrew, n 123 above, for the role of the police in the formulation of the legislation.

(127) See Young, n 90 above, p. 64. When Gilmour was asked in the Commons in May 1933 to comment on Trenchard's remarks about discontent in the Metropolitan Police, he replied: ‘I do not think it would be in the public interest to enter into further details on this matter at this stage…I will shortly issue a White Paper for the information of the House and legislation, no doubt, will follow’: H C Debs, 4 May 1933, cols 988–9. For the role of the Police Act 1919 in countering disaffection in the police, see Chapter 3 above.

(128) The relevant files on the Act in the Public Record Office are closed for 100 years: ‘Incitement to Disaffection Bill 1934, 17 April-21 June 1934 and 25 June-4 November 1934’ (PRO, HO 144/19701 and 19702).

(129) The infamous Olympia meeting was to follow a mere seven weeks after the Second Reading of the Bill: see Chapter 6 below.

(130) See pp 216–34 above.

(131) See n 118 above, para 5.

(132) For the Second Reading debate see H C Debs, 16 April 1934, cols 739–855. The Attorney General's comments are at ibid, col 739. The newspapers on the morning of the debate were almost uniformly hostile. In its editorial, the Manchester Guardian condemned the Bill in the following terms: ‘It makes it easier to send people to prison for their opinions. It widens the scope of political offences and greatly increases the power of the police to interfere arbitrarily with the domestic liberties of the individual’: Manchester Guardian, 16 April 1934.

(133) H C Debs, 16 April 1934, col 739.

(134) Ibid, col 743.

(135) Ibid, col 740.

(136) Ibid, col 749.

(137) Ibid, col 739.

(138) See Andrew, n 123 above.

(139) H C Debs, 16 April 1934, col 742.

(140) Ibid, cols 742–3. During July 1934, when the Bill was still going through the Commons it was claimed by the Financial Secretary to the War Office, Douglas Hacking, that there had only been two incidents of mutiny during the previous 10 years, the first at Jamaica in 1929 and the second in Singapore in 1932, though how ‘far these cases [could] be ascribed to political propaganda or to political influence [was] a matter of conjecture on which [the Minister was] not prepared to pronounce’: H C Debs, 25 July 1934, col 1763. Interestingly, no mention of Invergordon was made.

(141) H C Debs, 16 April 1934, col 763.

(142) Ibid, col 743.

(143) This point was made by Dingle Foot in the course of his speech in the Second Reading debate: see ibid, col 797.

(144) Emphasis added. This was the formula that had been deployed in later legislation on the navy (in 1866), the army (in 1881) and the Royal Air Force (in 1913), a point made by Inskip when defending the change in the wording: ibid, col 740.

(145) H C Debs, 16 April 1934, col 745.

(146) Ibid, col 750. See in particular the comments of Major J Milner at ibid, col 789.

(147) It might have been thought by some opponents of the Bill that the seizure by the police of anti-war material during a military pageant in Edinburgh in June 1934 (i.e. while the Bill was going through committee) was a sign of things to come, though in this case the police purported to rely on their powers under s 193 of the Edinburgh Corporation Order Confirmation Act 1933: see H C Debs, 14 June 1934, col 1907 (Sir G Collins) (WA).

(148) H C Debs, 16 April 1934, col 746.

(149) Ibid, col 789 (Major J Milner).

(150) Ibid, col 747.

(151) See n 61 above.

(152) H C Debs, 16 April 1934, col 747.

(153) Ibid, cols 799–800 (D Foot).

(154) Ibid, col 758 (J J Lawson).

(155) Ibid, col 755.

(156) See H C Debs, 11 May 1925, col 1599 (Sir W Joynson-Hicks) and the speeches of Sir Patrick Hastings QC, ibid, cols 1604–6 and H C Debs, 16 November 1925, cols 155–7.

(157) The point was exploited by opponents of the 1934 Bill: see H C Debs, 16 April 1934, col 754 (J J Lawson). MacDonald was also vulnerable in that his pacifism during the 1914–18 war would have brought him within the Bill's provisions had it then been in force, a point made by among others J McGovern, ibid, col 804.

(158) A point made by J J Lawson, ibid, col 751.

(159) Ibid, col 842.

(161) H G Debs, 31 October 1934, col 177. The Communist Party of Great Britain, The Sedition Bill Exposed (1934) is a well-informed critique of the Bill.

(162) (1934) 98 JP 299. For the support which the journal (normally a good barometer of the temperature of the highly conservative legal professions) had given the Bill after its second reading, see ibid, pp 283–4. The anonymous writer who was probably responsible for both pieces had clearly been somewhat intimidated by the array of stars who disagreed with his (or her) initial assessment.

(163) H C Debs, 4 June 1934, col 265 (Sir D Somervell).

(164) See Young, n 90 above, pp 66–7 for further details. On one occasion during Committee discussion of the Bill, a clearly exasperated Inskip referred to ‘all the letters [he had] received from groups of people in colleges or ecclesiastics in the dim darkness of a cathedral’: H C Standing Committee A, 1933–4, 14 June 1934, Incitement to Disaffection Bill, col 473.

(165) As enacted, clause 2(1) now reads: ‘If any person, with intent to commit or to aid, abet, counsel, or procure the commission of an offence under section one of this Act has in his possession or under his control any document of such a nature that the dissemination of copies thereof among members of His Majesty's forces would constitute such an offence, he shall be guilty of an offence Under this Act’.

(166) H C Standing Committee A, 1933–4, 31 May 1934, Incitement to Disaffection Bill, col 346.

(167) Ibid, 5 June 1934, col 390.

(168) H C Standing Committee A, 1933–4, 31 May 1934, Incitement to Disaffection Bill. This was achieved by increasing the punishment on summary conviction to a term not exceeding four months: clause 3(1).

(169) Spectator, 29 June 1934, p 990.

(170) For the debate on these latter stages of the Bill, see H C Debs, 30 October 1934, cols 47–176; 31 October 1934, cols 201–322 (Report); and 2 November 1934, cols 525–610 (Third Reading).

(171) See H L Debs, 6 November 1934, cols 96–162 (Second Reading); 8 November 1934, cols 201–374 (Committee); 13 November 1934, cols 379–91 (Third Reading).

(172) H L Debs, 6 November 1934, col 119.

(173) H L Debs, 8 November 1934, cols 201–3 74.

(174) Ibid, col 231.

(175) Ibid, col 235.

(176) R v Arrowsmith [1975] QB 678.

(177) Young, n 90 above, p 77. The details of the case may also be found in R Kidd, British Liberty in Danger (1940), p 67. See Young, n 90 above, pp 76–94 for the subsequent history of the enforcement of the measure. As to whether s 2 was used to procure search warrants we have no clear information, but no such warrants had been obtained by 4 February 1935: H C Debs, 4 February 1935, col 796 (Sir T Inskip).

(178) For a flavour of the times, see Report of the Committee on Ministers’ Powers, Cmd 4060 (1932). See D G T Williams, ‘The Donoughmore Report in Retrospect’ (1982) 60 Public Administration 273.

(179) See Chapter 1 above.

(180) Cited in D G T Williams, Keeping the Peace (1967), pp 14–15.

(181) There were occasional reports of disorder within exchanges, but these were more the result of the desperate actions of stricken men than of political agitation. A typical example occurred in October 1931, with The Times reporting that one Herbert Morris, ‘a heavily built man’ had been jailed for two months with hard labour by Alderman Sir William Burton for assaulting the deputy manager of the labour exchange in Mansell Street, Aldgate.

(182) The Times, 14 November 1931 from which report the quotations that follow are also taken.

(183) These details together with many others that follow in the text are drawn from PRO, HO 144/20149. Prohibition of meetings held in the vicinity of employment exchanges.

(184) H C Debs, 10 July 1936, col 1551 (D N Pritt).

(185) Ibid, col 1552. No details of this supposed breach of confidence were given in the course of the debate in the Commons where it was mentioned. See, however, the contemporary news report, at n 189 below, from which it would appear that there was public awareness of the fact that the Commissioner had issued a new instruction, even if the precise contents of the instruction might not have been known.

(186) [1936] 1 KB 218.

(187) Hannington, n 7 above, p 248.

(188) Daily Worker, 28 November 1931.

(189) The Times, 28 November 1931.

(190) Hannington, n 7 above, p 248.

(191) The Times, 2 December 1931.

(192) H C Debs, 2 December 1931, cols 1087–8 (V La T McEntee).

(193) Ibid, col 1088.

(194) Ibid, col 1089 (D Kirkwood).

(196) Report of the Commissioner of Police of the Metropolis for the Year 1931, Cmd. 4137 (1932), p 31.

(197) Hannington, n 7 above, p 248 claims that the ban was withdrawn after two months but it is more likely that it was more or less rigorously enforced depending on the political atmosphere in the capital: see H C Debs, 2 May 1932, cols 877–8 (G Buchanan). Something like this ban may also have been in operation in other parts of the United Kingdom. In Paisley on 10 May 1935, for example two defendants who addressed a meeting of unemployed persons, and who refused to stop when required to do so, were successfully prosecuted on obstruction charges and jailed for 50 days without the option of a fine (they were released on 22 May after having launched an appeal): H C Debs, 23 May 1935, col 503 (N Maclean).

(198) See PRO, HO 144/20149), prohibition of meetings held in the vicinity of employment changes, n 183 above.

(199) The Times, 25 July 1934. For evidence that the campaign was inspired by the Council for Civil Liberties, see Groves’ speech on the events in Stratford in the Commons adjournment debate: H C Debs, 31 July 1934, cols 2505–9. The Daily Worker reported the story on 25 July 1934 under the optimistic headline, ‘The Trenchard dictatorship receives serious blow’: Daily Worker, 25 July 1934.

(200) The interchange between Groves and the Home Secretary, Sir John Gilmour, is at H C Debs, 31 July 1934, cols 2471–2.

(201) Thus explaining the nature of the ban in the course of his reply to a written parliamentary question, ibid, Gilmour asserted as its rationale that ‘experience shows that meetings held in such circumstances are likely to lead to disorder and obstruction’: ibid, col 2472.

(202) The Times, 27 July 1934. The quotes from this case that follow are drawn from The Times report. Further information can also be obtained from the comments of Sir John Gilmour in reply to questions at H C Debs, 30 July 1934, cols 229–33 and from the adjournment debate on the Stratford meetings the following day: H C Debs, 31 July 1934, cols 2505–12. A full account is also to be found in the Daily Worker, 27 July 1934; ibid, 28 July 1934.

(203) The exercise of a discretionary power should not be effectively transferred to another by unquestioningly accepting that other's opinion as to how it should be exercised. The then contemporary authorities, rooted in statutory discretions vested in local authorities, were Ellis v Dubowski [1921] 3 KB 621 and Mills v London County Council [1925] 1 KB 213. From a slightly different point of view, see now O'Hara v Chief Constable of the RUC [1997] 1 All ER 129.

(204) See now Piddington v Bates [1960] 3 All ER 660; Moss v McLachlan [1985] IRLR 76.

(205) Piddington v Bates, n 204 above, at p 663.

(206) H C Debs, 31 July 1934, col 2509.

(207) See Daily Worker, 3 August 1934 for the case of Claud Cockburn from the Council for Civil Liberties, charged with a colleague from the NUWM with obstruction for having attempted to hold a meeting outside Battersea labour exchange on 1 August.

(208) Mrs Duncan had her own dedicated Home Office file, but it is closed for 100 years: Kath Sinclair Duncan, Communist: obstruction of police and breach of the peace, 1932–4 (PRO, HO 144/19284).

(209) See George Lansbury's account of these 1932 proceedings at H C Debs, 22 December 1932, cols 1275–81.

(210) Chalkmarks were a favourite device in the 1930s for advertising political meetings. Perhaps inevitably therefore, the authorities were antagonistic to the creators of such markings. In early 1934, a man was bound over for ‘defacing a church wall with a notice about “hunger marchers” ’: (1934) 98 JP 66. The issue had provoked a strong editorial line from the Justice of the Peace the year before, after two men had been convicted at the West Ham police court for chalking words which the magistrate described as insulting within the meaning of s 54(13) of the Metropolitan Police Act 1839. Under the heading ‘The Chalk Nuisance’, the journal declared that the ‘highway [was] not the proper place on which to propagate political or economic theories by means of the written word’: (1933) 97 JP 18.

(211) The Times, 17 October 1935.

(212) Ibid. See further H C Debs, 10 July 1936, cols 1559–60 (D N Pritt).

(213) See Kidd, n 177 above, p 23.

(214) The Times, 17 October 1935.

(215) See Chapter 3 above.

(216) For the details see Chapter 2 above.

(217) For the details of the relevant regulation, Regulation 20, see Chapter 2 above.

(218) For further details on the extraordinary story of his eventual appointment see Chapter 2 above.

(219) (1882) 9 QBD 308. See Chapter 1 above.

(220) Counsel cited Dicey's, Law of the Constitution (8th edn, 1915), p 508.

(221) Duncan v Jones [1936] 1 KB 216 at p 221, citing R v Londonderry Justices (1891) 28 LR Ir 440.

(222) But see the following passage, not further developed, which appeared to support the principle in Beatty: ‘[A] public meeting, if otherwise lawful, does not become unlawful merely because it is prohibited by a Secretary of State or magistrate, or by the police’: Lord Hewart, The Mew Despotism (1929), Of course the statement begs the question as to when a meeting can be characterised as unlawful.

(223) 1930 SLT (News) 36.

(224) D M Walker, Oxford Companion to Law (1980), p 565.

(225) [1936] 1 KB 216, at pp 221–2.

(226) See in particular Chapter 6 below.

(227) Workers’ Weekly, 26 March 1926. The freedom of communists to hold meetings at this spot is only restored following a deputation to the acting chief constable from members of the Party and employees engaged in the factory. See Chapter 3 above.

(228) [1936] 1 KB 216, at p 222.

(229) (1858) 1 F & F 325, at p 326.

(230) [1936] 1 KB 216, at p 223.

(234) Ibid, at p 224.

(235) Williams, n 180 above, pp 120–3; H Street and R Brazier (eds.), de Smith's Constitutional and Administrative Law (4th edn, 1981), pp 504–6; T C Daintith, ‘Disobeying a Policeman—A Fresh Look at Duncan v Jones’ [1966] Public Law 248.

(236) J Baker, The Law of Political Uniforms, Public Meetings and Private Armies (1937), p 75.

(237) Kidd, n 177 above, p 24. But see now Redmond-Bate v DPP, The Times, 28 July 1999.

(238) E C S Wade, ‘Police Powers and Public Meetings’ (1936–9) 6 CLJ 175, at p 179.

(240) Anon. (1936) 9 Police Journal 18. See Davies v Griffiths (1937) 30 Cox's CC 595.

(241) See (PRO, HO/144/20149). Prohibition of meetings held in the vicinity of employment exchanges, n 183 above.

(242) H C Debs, 10 July 1936, col 1561.

(245) Ibid, col 1562. Pritt in fact mounted a damning attack on the police and their failure to intervene ‘to restrain breaches of the peace and not to restrain other people from pursuing perfectly law-ful activities’. He compared the Duncan case with the willingness of the police to spend thousands of pounds to give a platform to Mosley ‘however many breaches of the peace might follow’: ibid.

(246) See Chapter 3 above.

(247) The details that follow are drawn from B Dyson, Liberty in Britain, 1934–94 (1994), ch 1.