Progeny of not-so-civil protection

The legal system stands on the brink of what the government has hyped as the biggest reform since the glorious revolution - the implementation of the Human Rights Act in October 2000. All 4,000 of Her Majesty's judges are being trained in an ambitious programme run by the Judicial Studies Board, civil servants have spent months scouring legislation and policies that could be at risk in the courts - and vice-chancellors have been exchanging scare stories about the implications of universities' status as public authorities bound by the act.

In retrospect, much of this may turn out to be overdone. Certainly, the comparison with 1689 is fatuous and students have few convention rights that are relevant to their studies - important as the Human Rights Act undoubtedly will be in many other areas. It is a propitious moment, nevertheless, for the publication of a major study on the history of civil liberties by two of the sternest critics of the project to incorporate the European Convention on Human Rights, Keith Ewing and Conor Gearty of King's College, London. Their book gives us many reasons to be sceptical of the willingness or capacity of the courts, Parliament, government ministers and the police to protect individual liberties.

The book's ambit is the protection of rights of political participation (especially freedom of association, protest and demonstration) during the first world war and the inter-war period. Civil liberties during the second world war receive only cursory treatment. These were the first decades of a parliamentary system based on universal suffrage that saw the election of the first Labour government. It was also the period when Ireland descended into civil war, leading the government to respond with emergency powers whose progeny is still with us today. These decades saw the limits of public order and popular protest tested by mass movements of the left and the right, and by the General Strike.

It was also the era in which A. V. Dicey's account of the constitution was pre-eminent. His Introduction to the Study of the Law of the Constitution was published in 1885 and went through many later editions. Generations of students (and most of today's judges) were brought up on Dicey's version of the rule of law, which embraced the equality of the citizen and state before the courts and the superiority of the common law in protecting civil liberties. Dicey's reputation has been much battered in recent decades, but Ewing and Gearty still delight in disinterring the body, scattering the bones and dancing on the grave.

Their account draws, where possible, on the official files, on parliamentary debates and extensively on contemporary newspaper reports, as well as conventional legal sources. One of the great strengths of this approach is to uncover the hidden legal history that never reached the law reports or the statute book. In places, the full story of state repression cannot be told because many of the Home Office files are still closed (security service files are beginning to be released). In many cases, the reason for continued closure is, presumably, no longer operational sensitivity or the protection of "trade craft", but the honouring of old promises to informants to keep their names confidential. Nevertheless, abundant evidence appears of the systematic surveillance and infiltration of political groups that were seen to be a threat to the prevailing order.

Repression by the police, the security service and the army of peace groups during the great war, or of Irish nationalists before partition, are not surprising, although they are well documented here. Lawyers may be more shocked by the lawless behaviour of the police, with the connivance of Jack Straw's predecessors, during the inter-war years. They repeatedly raided the Communist Party, seized the entire contents of its office, systematically disrupted its meetings and those of the National Unemployed Worker's Movement, and snatched leaders of the movements at key moments of tension. The well-known judicial decisions of the era, giving the police the right to attend and to break up public meetings and to seize documents when making an arrest, are dissected and put into a wider context that makes clear that these repressive decisions were only the tip of the iceberg. As Ewing and Gearty demonstrate, the policing practices, challenged unsuccessfully, were widespread and were used as part of a systematic policy to contain or crush predominantly leftwing protest. They show how the authorities and police were partisan in favouring the British Union of Fascists: protection of Blackshirt rallies from disruption seems to be the one instance in which protection of freedom of assembly was taken seriously by the police in this era, although violent disorder on the streets and public scandal and violence by stewards at their meetings eventually forced the authorities to act.

The conclusion from their review, that there was not a single legal decision at the High Court or appellate level protective of civil liberties in this entire period, should certainly dampen our contemporary enthusiasm for judicial protection of human rights. Equally, just as today, the mother of parliaments proved ineffective as a bastion of liberty during the first half of the 20th century. This was the era that saw the passage of the official-secrets legislation, the Emergency Powers Act 1920 and the granting to the executive of extraordinary wartime powers in 1914 under the Defence of the Realm Act and again in 1939. The only notable exceptions to this supine legislative indifference were the amendments that made the Incitement to Disaffection Act 1934 and Public Order Act 1936 slightly less repressive than the government intended.

Overall, the picture of neutral democratic and judicial institutions protecting individual liberty and rights of political participation emerges in tatters. Apart from Dicey, however, it is unclear who Ewing and Gearty have in mind as peddling the myth of a golden era of civil liberties that they so convincingly demolish. Neither Harry Street nor David Feldman, whose accounts are criticised in the book's introduction for failing to define civil liberties, could be accused of uncritical acceptance of the liberal legal mythology. The claim on the dust jacket that the book will "change forever the way in which open-minded public lawyers think about their subject", is in the same category as the new Labour hype of bringing rights home.

What the book does is to confirm the scepticism about protection of rights that many public lawyers (and, to be fair, some judges) have expressed over the past 30 years or so. It does so in a way that is impressively researched and well written. With rights talk virtually ubiquitous at present, Ewing and Gearty have given us a valuable and much-needed corrective.

Ian Leigh is a professor of law, University of Durham.