A post by Mahmoud Serewel
Introduction
The Crown began proposing ‘draconian’ policy [1] that abruptly ended the ‘Victorian honeymoon with the Rule of Law’ from the start of the First World War.[2] These laws sought to restrict freedoms, liberties and arguably to violate ‘most treasured’ constitutional principles.[3] It is clear from the offset that the Crown’s intention was to sacrifice the rule of law. Some have contended that the judiciary attempted to prevent this.[4] It shall be submitted that the courts did indeed fight back, but only to a degree, and that they only fought back ‘to restore their traditional authority’, not necessarily to preserve the rule of law.[5] This piece will focus on restrictions upon individual liberty. It shall be seen that the consequence of legislation and its application by the courts was the sacrifice of the rule of law. It shall further be contended that this sacrifice was not necessary to national self-preservation. These draconian laws and their consequences were simply a ‘costly irrelevance.’[6]
Enactment of legislation
The executive proposed legislation that restricted civil liberties and the rule of law, in order to maintain domestic stability. Such legislation included the Defence of the Realm Acts (DORA). These acts were designed to allow the Crown broad powers ‘for the sake of national self-preservation’. And yet, DORA and its successive acts went beyond what was necessary for this preservation. Regulation 14B especially was ‘broadly worded’,[7] and designed to allow the Home Secretary to restrict liberty where someone was deemed a threat. As Wagstaff notes, what was deemed to be a threatening individual went as far as an individual ‘of hostile association’[8] which included those who ‘merely had German…acquaintances’.[9] That legislation could allow the executive to detain someone with ‘token’ judicial oversight in a process that ‘reduce[s] procedural rights’ for simply having known someone of hostile origin in the past is certainly a violation of rule of law principles without sufficient justification.[10][11] Someone who once knew a German is not, by virtue of this fact, so dangerous that they should be stripped of fundamental rights. Such legislation was enacted not because they were necessary for national self-preservation, but because such powers were convenient to the Crown.
Much of this legislation also granted the executive with expansive powers through delegated legislation. Saunders points out that the Alien Restriction Act (ARA) allowed the amendment or addition of the Act’s regulations without debate in parliament.[12][13] This gave the executive ‘unprecedented powers’ and infringed upon Parliament’s role as the legislative body, at a time when the country was not seen to be in any real danger.[14] Some Parliamentarians even claimed they had ‘no idea’[15] that passing these measures would grant the executive with such ‘draconian powers’.[16] Measures of this kind infringed upon the legislative procedure in a substantial manner with no real need. The executive simply saw the opportunity to exploit a national situation for more power and did so for convenience.
The ‘fight back’
This disconcerting eagerness from the Crown to strip away fundamental rights produced a degree of pushback, some of which was a genuine attempt at upholding the rule of law, and some of which was an attempt to reassert institutional power. The former kind can be seen in parliamentary debates on DORA, where the House of Lords ‘pressed forcefully’ to maintain jury trial.[17] Lord Bryce for example, referred to the right to a jury trial as one of the ‘oldest and most treasured’ constitutional principles.[18] Subsequently, the government reversed its position, but exclusively for British nationals.[19][20] However, in order to be granted a jury trial, a British national would have to exercise their right within 6 days. It is also worth noting that this reversal had ‘no effect’ on summary trial proceedings.[21] These summary proceedings constituted ‘the vast majority of DORA cases’.[22] In other words, while the Lords had the right intentions, their efforts had no practical effect.
Conversely, the courts had the ability to effectively fight the Crown, yet they chose to limit their battles to scenarios where the power of the judiciary was being impugned upon. Kaye can be seen as the first of said battles. Here, the court clarified that the magistrates’ power over national security issues was based upon DORA legislation, and therefore limited to wartime.[23] Essentially, this particular decision was a practically ineffective one; yes it put time constraints upon the Crown’s power, but it nonetheless validated said power, and put no real constraints upon the substance of the powers themselves. Vorspan conversely argues that Norman shows that ‘wartime judges were willing to flout executive policy’.[24] Here, the King’s Bench claimed ‘inherent authority’ to hear a case if it was ‘necessary for the proper administration of justice’.[25] This amounted to ‘ignoring the government’s position on jury trials’.[26] Vorspan aptly notes that the courts were successful in restoring ‘their traditional authority’.[27] And yet, the courts did not oppose the executive in a manner that would amount to practical change. As jury trial was ‘almost obliterated’,[28] and the judiciary regularly facilitated the government’s policy, while the judiciary maintained their institutional standing, they had no real effect on ‘the substantive results’ of cases.[29] The Rule of Law remained in danger.
Consequential restrictions on liberty
Legislation concerning liberty focused upon communication, censorship and the movement of peoples within (and without) the United Kingdom. Initially, this legislation did not focus on detention. For example, the ARA gave the power to restrict or remove aliens but under this Act, aliens could not be detained.[30] DORA (No.2) further extended the power to prevent the spread of reports that could lead to ‘disaffection and alarm’ and to regulate speech. There was concern with the significant ability the executive had to restrict movement and censor the press, but there had yet not been any significant introduction of arbitrary detention.[31] While it is submitted that this draconian level of censorship was not necessary, one can see the argument that the government may have been concerned about the country’s morale in wartime. Media outlets creating nationwide discontent with government during wartime could have had less than ideal consequences, and censorship could be seen by some as a necessary sacrifice for national self-preservation.
Arbitrary detention however, an absolutely unjustifiable sacrifice of rule of law principles, came with the Consolidation Act.[32] In Regulation 14B, the executive had broad powers of detention.[33] What followed from this was entirely draconian, entirely disproportionate, and an absolute violation of the rule of law. The government oversaw over 500 internment camps, which at certain points of the war saw over 30,000 civilian detainees, and by the end of the war saw 24,255 German civilians interned.[34]
This scale of detention was certainly not necessitated by national preservation. The broad ‘net’ for internment which, by the end of the war, included anyone who acted ‘in any manner prejudicial to the public safety or defence of the realm’ was certainly gratuitous.[35] Historians have noted that those in internment camps were not treated appropriately either.[36] Prisoners were subject to ‘the monotony of camp routine and diet,’ and ‘the loss of dignity and privacy’.[37] Furthermore, prisoners in these camps experienced ‘segregation on grounds of class and affluence’ depending on one’s socioeconomic standing.[38] People in different classes would be housed in different areas, with those in the highest class being housed in the ‘privilege camp’.[39] Foxton further observes that prisons were renamed to ‘preserve the fiction’ that enemy aliens were not ‘punished’.[40] All of this inequality of treatment under law was entirely unnecessary and could in no way be justified, Bird in fact goes as far as to say that when it came to ‘protecting the safety of the realm…the internment camps were a costly irrelevance’, and it is difficult to argue against this sentiment.[41]
Judicial reaction to restrictions
Some say the judiciary was ‘supine…in the face of the outer reaches of executive power.’[42] The courts were generally happy to facilitate the Crown’s violation of rule of law principles. However, their facilitation should be seen not as passiveness, but rather as ‘pro-war activism’.[43] This is evident in, for example, the courts’ expansion of prerogative powers by reclassifying alien civilians as ‘enemy combatants’ in Liebmann and Forman,[44][45] thus ‘legitimizing the prerogative as a viable instrument of alien control’.[46] Consequently, the Crown was able to detain these individuals, utilising court martial. In Liebmann, MJ Low elaborated upon this claiming that it would ‘be idle’ to ‘wait for proof of an overt act or for evidence’ of intent.[47] This phraseology seems to approve of a presumption of guilt, and thus, a violation of fundamental rule of law principles. It further shows that, rather than being reluctant, MJ Low seemed to be entirely on board with the Crown’s endeavours. Vorspan commented on MJ Low’s judgement considering it an exhibition of ‘the prejudices that permeated the wartime judiciary.’[48]
The courts subsequently expressly consented to a reversal of the burden of proof. In Denison, it was found that it would be the defendant’s burden to prove that a military authority did not suspect him ‘honestly’.[49] The judge further clarified that the military officer’s suspicions need only be ‘honest’ and not necessarily ‘reasonable’.[50] The courts therefore gave military authorities the ability to remove aliens from areas whether the suspicion which led to the removal was reasonable or wholly unreasonable.
The courts seemed more than willing to make such inferences in cases concerning individual liberty. In Zadig, it was submitted that detention by court martial was ultra vires because DORA did not refer to ‘executive detention in express terms’.[51] Parliamentarians even claimed that such regulations were ‘altogether apart from the intentions of Parliament.’[52] And yet, the courts overwhelmingly backed the Crown’s interpretation. Rather than narrowly construing legislation that could restrict liberty, all but one of the Lords ruled in favour of the Crown.[53] Lord Atkinson claimed that, to construe the ‘wide’ wording of the regulation narrowly would be to ‘treat [it] as of none effect.’[54] The majority further based their decision upon the prioritisation of ‘success in the war’ over ‘personal liberty’.[55] Lord Shaw in his dissent responded to the notion that the ‘shuffling of the order of a few words in’ DORCA amounted to a British citizen being ‘regulated out of his liberty’ with disbelief.[56] He aptly noted that, in the past where Parliament has suspended ‘statutes of historical importance’ in the name of national preservation,[57] it had done so ‘plainly and courageously and not under the cover of words about regulations’.[58] Foxton casts doubt upon the notion that constitutional theorists would believe Lord Shaw’s defence of fundamental principles to be ‘unfounded’ where such violations were ‘undoubtedly beyond the scope of DORA’.[59][60]
It follows that this infringement of the rule of law, in order to detain a ‘harmless’ individual, cannot be justified in the name of national security.[61] Those opposing this notion would contend that the establishment of precedent finding that DORA did not authorise trial by court-martial would cripple the Crown’s ability to uphold the peace in Britain. It is submitted however that internment by court-martial was entirely unnecessary. After all, the Home Office itself noted that detainees were transported to camps ‘on the legal fiction that their deportation could not be carried out’. [62] It is unlikely that this ‘legal ruse’ was lost on the judiciary,[63] nonetheless ‘virtually every member…was willing to disregard longstanding principles of statutory interpretation’.[64] In other words, the judiciary facilitated the disregard of fundamental constitutional principles even though there was no necessity for such disregard.
Conclusion
It has been established that the rule of law and fundamental constitutional principles were indeed sacrificed during WW1. However, these sacrifices were generally void of necessity, and the nation’s security could have very well been upheld without them. It seems that the stripping of civil liberties can be linked to the morality of the period and to a prejudice found within the legislature, executive, and judiciary alike. The judiciary provided the Crown with the autonomy it felt appropriate, but an autonomy which, in reality, led to numerous unnecessary violations of the rule of law.