Defining Subversion

Author(s): R. J. Spjut
Source: British Journal of Law and Society , Winter, 1979, Vol. 6, No. 2 (Winter, 1979),
pp. 254-261
Published by: Wiley on behalf of Cardiff University

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 DEFINING SUBVERSION

In 1978 Mr. Rees, then Home Secretary, publicly stated the def
"subversion" by which the Home Office monitors subversive
follows:
Subversive activities are generally regarded as those which threaten t
well-being of the state, and which are intended to undermine or
parliamentary democracy by political, industrial or violent means. [1]

Mr. Rees added that while definitions "are not sufficient" and that "it would
be wrong to argue about definitions", he knew what he meant when he had
duties to perform in connection with subversion. This comment reviews the
above definition and suggests that Home Office operations monitoring
subversion are in themselves a threat to liberal constitutional government.
Subversion in Constitutional Law
There is no concept of "subversion" in constitutional law and the word
has no generally understood meaning for political and legal theorists. In
constitutional law, the abuse of liberty is proscribed only if a criminal
offence is committed, and this, as a rule, must portend or actually breach
public peace. Violence may be an unlawful assembly, riot or even treason;
the advocacy of violence may be incitement or seditious libel. These
offences are normative concepts in that they define precisely behaviour
which threatens public order or the state. [2]
However, in legislation and judicial decisions, there are descriptions of
religious, social and political activities as subversion, and these indicate
what, in the past, has been regarded as an acceptable use of that term.
Legislation and Ordinances of the Tudor and Stuart reigns commonly
describe as subversion the practices of the Catholic Church. For example, a
proclamation of Henry VIII Limiting the Exposition and Reading of
Scripture recites that the King has been informed that some of his subjects
"minding craftily by their preaching and teaching to restore into this realm
the usurped power of the Bishop of Rome ... so truly allege the same to
subvert and overthrow as well the sacraments of the Holy Church as the
power and authority of the princes and magistrates". [3] An Act of 1606 for
the better discovering and repressing of Popish recuseants condemns the
"wicked and devlish counsel of Jesuits, seminaries and like persons
dangerous to the Church" as "tending to the utter subversion of the whole

[1] 947 H.C. Debs., ser.5, col.618 (6 April 1978).

[2] For example, Max Lerner's definition of "political offenders" includes "conspiracy,
rebellion, sedition, treason, lese majesty, assassination, military destruction and mutiny".
Nowhere does he mention subversion. "Political offenders" in Enclyclopedia of the Social
Sciences (ed. E. Seligman, 1963) vol.11, p. 199.
[3] Tudor Royal Proclamations No.191, April 1539, 30 Henry VIII (eds. P. Hughes and
J. Larkin, 1969) vol. 1, p.284.

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State".[4] We may add here Blackstone's description of the practices of
Roman Catholicism in this country as subverting the constitution.[5]
Attacks on religion in general, as blasphemy, have been often described as
subverting the basis of civil society as the following quote from Lord Hale, in
Taylor's Case, suggests:[6]
For to say, religion is a cheat, is to dissolve all those obligations whereby the civil
societies are preserved, and that Christianity parcel of the laws of England; and
therefore to reproach the Christian religion is to speak in subversion of the law.

Perhaps seditious publications are the political activities most frequently

condemned as subversive by jurists and judges. The Criminal Law
Commissioners prefaced their Sixth Report of 1841 with this proposition: [7]
Where the immediate end and object of communications, whether oral or written, is the
total subversion of the civil constitution, they necessarily rank, in degree, with other
treasonable practices against the state.

In summing up to the jury, in the Queen v. Ernest Jones, Wilde C.J., on the
charge of seditious libel, directed the dury to decide if it was the object of the
defendant "not to obtain redress of grievances by constitutional means, but
to destroy the law, not to amend the constitution, but to subvert it, and to
subvert it by illegal means, and tumult, and violence". [8] In connection with
political activities, as the above quotes indicate, subversion is a violent
overthrow of the state, which implies that peaceful reform is not subversion.

These examples illustrate how subversion is used by legislators, jurists

and judges to justify repression of religious, social and political activities as
posing grave threats to the security of the state. First, the very basis of law -
whether it be religion, morals or political authority - will be destroyed by
activities described as subversive; hence, the preservation of law and society
itself requires repression of subversion. Second, the nature of that threat is
less clear: the erosion of religion by blasphemy is remote, however
inevitable; the destruction of the constitution by sedition more immediate.
The practices of Catholics, certainly in Blackstone's time, were neither
conspiratorial nor violent whereas the above references to seditious libel
evinces a violent element in political subversion. Although subversion has
been used in the past to describe a variety of religious, social and political
acts as menaces to state security, no government has either attempted to give
it precise meaning or admitted using it, apart from justifying creating

[4] 3Jac. 1, c.4.

[5] W. Blackstone, Commentaries on the Laws of England (ed. R. Kerr, 1857) vol.4,
pp.103-4.
[6] 1 Ventris 293; 86 English Reports 189 (1675).
[7] Sixth Report of H.M. Commissioners on Criminal Law (1841) (Irish Universities Press
Series: British Parliamentary Papers, Legal Administration and Criminal Law, vol.3,
p.44).
[8] 6 State Trials (New Series) 783 (1848).

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specific criminal offences, as a basis for investigating or repressing political
activities.

The Threat to the State

Mr. Rees' definition of subversion contains three elements: the means
(political, industrial or violent), the consequence (threaten the safety an
well-being of the state), and the aim (intent to undermine or overthrow
parliamentary democracy). The first element is indeed very wide, including
non-violent political and industrial action. The second and third elements
the consequence and aim, are crucial for distinguishing non-subversive from
subversive activities.

We shall consider two possible interpretations of Mr. Rees' notion of

subversion. (1) Political and industrial activities are subversive if they
threaten the sovereign, the Crown in both Houses of Parliament, and are so
intended. This is a "narrow" and literal reading of the definition. (2)
Political and industrial activities are subversive if they disrupt - even
temporarily - the operation of government policy by a person or
organization whose motive in the long term is the overthrow of the state
though this is not necessarily their immediate intent. This is a "wide"
interpretation of the definition. The two constructions are radically different
and import quite significant conclusions for liberal constitutional
government in Britain.
The first interpretation of Mr. Rees' definition is a literal reading of the
phrases "threaten the safety or well-being of the state" and "intended to
undermine or overthrow parliamentary democracy". First, by state we take
Mr. Rees to mean the legal sovereign, the Crown in both Houses of
Parliament, not the community, society, or similar ambiguous concept. The
words "safety or well-being of' are unecessary to this meaning and it would
be sufficient to say that the activities "threaten the state". Second, by
"intended" or "intent" we assume Mr. Rees is referring to what the activist
- political, industrial or violent - desires as the immediate goal of his
deeds. The definition covers activities which are calculated to overthrow the
present constitution - the Crown in Parliament - and actually threaten to
do so, that is, those which may realize the goal.
As Mr. Rees' definition expressly refers to "violent" in contradistinction
to "political" and "industrial" means, we may suppose the latter two to
include non-violent action, in which case, -it appears to include lawful
political and industrial action. Two related offences against the state
proscribe action which is calculated to bring about changes in the
constitution: seditious libel and treason.

Sedition is commonly understood to refer to practices which disturb the

internal tranquility of the state although they are not accompanied by overt
or direct use of violence.[9] There is, however, no specific offence of
sedition, rather seditious libel and seditious conspiracy. Publications

[9] Chaffee, "Sedition" in Encyclopedia of the Social Sciences, op.cit., vol.13, p.636.

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speeches, literature and the like are seditious if they are calculated to
produce in the minds of the readers discontent or disaffection from the
government or Her Majesty, or hatred towards a class or group and are
calculated to excite the listeners or readers to disturb the tranquility of the
realm.[10] This latter requirement of seditious intention, a development in
seditious libel in the late nineteenth century, [11] distinguishes seditious libel
from the wider range of activities encompassed by Mr. Rees' definition of
subversion. It is unnecessary that "political" and "industrial" action be
calculated to excite or advocate the use of violence.

Although treason is usually associated with insurrection or adhering to

the enemies of the state in time of war, the first clause of the Statute of
Treason of Edward III (1351),[12] which makes it treason to compass or
imagine the Queen's death, has been so widely construed that it might
possibly apply to subversion. The courts in the sixteenth and seventeenth
centuries construed the clause to mean that any imaginable restraint on the
sovereign was part of a plot to kill him, and extended the clause to cover
assertions disabling the King's title, subjecting his title to the rule of the
Pope or the people, or disabling his regiment or undermining his rule in such
a way as to make him appear incapable of reigning. [13]
In 1794, when the Crown decided to suppress the London
Corresponding Society by prosecuting Thomas Hardy and Home Tooke for
treason, it contended that their advocating universal suffrage and annual
parliaments were preparations for deposing the monarchy, and, in any
event, endangered the King. Chief Justice Eyre accepted the contention and
directed the jury that "in a design to subvert the constitution, the
compassing or imagining the death of the King is involved, and is in truth its
very essence". [14] The jury acquitted Hardy and Tooke of treason. One
might argue, applying Chief Justice Eyre's direction on constructive
treason, that persons peacefully endeavouring to "subvert" the
constitution, the Crown in Parliament, thereby imagine the Queen's death.
Under this somewhat extreme, antiquated branch of constructive treason,
Mr. Rees' definition of subversion does not go beyond unlawful, albeit
peaceful, political and industrial action.
The second interpretation of Mr. Rees' definition of subversion -
political and industrial activities are subversive if they disrupt government
policy and are by persons whose long term aim is to overthrow the state -
principally turns on the meaning of the phrase "threaten the safety or
well-being of the state". If one adopts the view that the government alone is
responsible for (i) deciding which of its policies are vital to the "interests or

[10] Russell on Crime (12th ed. 1964) chap.8, s.1.

[11] In R. v. Burns (1886) 16 Cox C. C. Cave J. included the element in his direction to the jury.

[12] 25 Edw. III St.5, c.2 (1351).

[13] W. Holdsworth, History of English Law (2nd ed. 1937) vol.8, pp.307-318.
[14] Trial of Thomas Hardy, Howell's State Trials (1820) vol.xxv, pp.203-4.

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well-being of the state" and (ii) ensuring that these are executed, then, in
effect, certain government policies, as well as the sovereign, are the
"interests or well-being of the state". Activities which obstruct the
execution of vital government policy "threatens" the "interests or well-
being of the state".

Although Mr. Rees' definition is not law and it would be specious to cite
judicial precedent to say that this expansive construction is the correct one,
the well-known case Chandler v. D.P.P. indicates that the wider
interpretation is not as fantastic as it first appears.[15] The Crown
case prosecuted six members of the Committee of 100 for planning, a
of a peaceful demonstration organized to further the aims of the Cam
for Nuclear Disarmament, to enter the Wethersfield Airfield and to o
temporarily a landing strip. As the airfield was a "prohibited place
the Official Secrets Act 1911, the prosecution charged the s
conspiracy to enter a prohibited place "for any purpose prejudicia
safety or interests of the state", contrary to section 1 of the 1911 Ac
The defence argued that the planned entry would have been for a
which was not prejudicial to the state as their cause, nuclear disarm
was favourable, not prejudicial, to the "safety or interests of the stat
Crown contended and the courts accepted that the Crown had deci
(i) nuclear armament was essential to the defence of the country and
defence policy was vital to the interests or safety of the state. Accord
the defence were not allowed to suggest otherwise to the jur
reasoning implies that C.N.D. was opposed to the interests or safet
state. That opposition became "prejudicial" within the meaning of sect
of the Official Secrets Act 1911 when the six planned to enter and
temporarily the Wethersfield Airfield.
The Chandler case is perhaps unique in that the C.N.D. demonst
planned disruption of an important defence installation linke
N.A.T.O. operations. Still, the Official Secrets Act was enacted in
proscribe the preparatory activities of spies and saboteurs, not dis
Saboteurs have as their goal the eventual destruction of the installatio
spies the collection of intelligence for an alien enemy governmen
eventual purpose is presumably sabotage. The demonstrators in Ch
had neither aim in mind, only to draw public attention to their cause
the Crown should have adopted the position that their disse
tantamount to sabotage indicates a tendency in government to regard
dissent as opposition to the interests or well-being of the state. The v
seem credible where national defence is disrupted, but applies wit
force to all areas of economic, social and constitutional policy.
Not all opposition or criticism of important government poli
subversion, though the dividing line is difficult, if not impossible, to

[15] [1964] A.C. 763.

[16] 1 & 2 Geo. 5 c.28, s.1.

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Mr. Rees, after defining subversion, added, "I am not worried about people
who have political views and who express them in this country, but
subversion is a different matter."[17] This statement implies that Mr. Rees
tacitly assumes that there is some distinction between criticism and
subversion, but his use of "subversion" gives no indication of what that
might be. His reference to the Windscale inquiry suggests that disruption is
more than criticism and may be what separates criticism from subversion.
This is analogous to the Crown's position in Chandler where it contended
that the temporary disruption of the Wethersfield Airfield by sitting-in on a
landing strip was "prejudicial" to the interests of the state. However
peaceful and lawful, opposition which disrupts the execution of vital
government policy may be regarded as threatening the safety or well-being
of the state.

Only disruption of important government policies by persons who intend

to undermine or overthrow parliamentary democracy will be subversion
under this second interpretation. The notion of "intent" may be either the
long term aims or immediate desires of the activists, or both. If restricted to
the immediate desires, then the government would limit its concern to those
activists whose disruption is intended to overthrow parliamentary
democracy immediately. Few organizations, however, qualify as subversive
under this meaning of intent. If intent is expanded to include those whose
long term aim is the overthrow of parliamentary democracy, then the Home
Office identifies as subversion disruption which is believed by certain
participants and organizations to be part of the struggle against capitalism.
Their immediate desire, like other similar activists, may simply be to
alleviate a particular industrial grievance or secure legislative reform, but
their long term aim differs, and this renders their action subversion.

Those monitoring subversion will have little difficulty characterizing the

long term aims of "revolutionary" parties, such as the International Marxist
Group or Workers' Revolutionary Party as their manifestos make plain their
aim of struggling against bourgeois parliamentary democracy. The
Communist Party of Great Britain, however, no longer advocates the
overthrow of parliamentary democracy and ought not to be considered
subversive.[18] Those monitoring subversion, however, may not bind
themselves to the activists' declarations in determining if a group intends to
overthrow parliamentary democracy. Rather, they may apply an objective
test. For example, as the natural and probable consequence of the political
and industrial activities of the C.P.G.B. is the overthrow of parliamentary
democracy, they must be deemed to know and intend this. The logic also
applies to other organizations outside the history or network of the
C.P.G.B., for example, C.N.D. as their disruption could be viewed as giving
aid and succour to the revolutionaries and they too must realize this and,

[17] Op. cit.

[18] The British Road to Socialism: Draft, Communist Party Programme (1977).

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hence, be deemed to so intend. This form of "constructive intent" is not
unknown in law though it obviously strains the meaning of intent beyond
common usage.

The significance of an objective meaning of intent, or constructive

intent, is that it virtually eliminates this element from the definition
subversion. By finding that a body of persons intends to disrupt the
execution of an important government policy, for example, the installation
of nuclear power plants, those monitoring subversion presume there is a
intent either to overthrow parliamentary democracy or to aid those who so
do. There is no concern with the activists' long term concerns abo
parliamentary democracy, only their immediate intent to disrupt. Intent to
overthrow parliamentary democracy is a label for disruptive intentions
which may be the real element in the definition of subversion.
Mr. Rees' definition is not narrowly limited to intent to overthrow
parliamentary democracy, but includes those who intent to "undermine" it.
In its ordinary meaning, undermine includes "weaken" as well as
destruction, and in Mr. Rees' definition, those whose intention is to weaken
parliamentary democracy are subversive though they do not desire to see it
destruction or abolition. The distinction appears as a semantic quibble, b
then Mr. Rees did not have to include undermine in addition to overthrow in
his definition. Rather, it suggests that Mr. Rees' definition covers all assault
on parliamentary democracy which do not amount to an outright overthrow
The wider notion of subversion departs from the principle of libera
constitutional government that the state ought to restrict political freedom
only where its exercise menaces public order. By menace, we mean th
there is a clear and present danger of violence. Disruption, however, i
broader than violence as non-violent sit-ins, demonstrations and strikes may
disrupt without actually threatening a breach of the peace. These tactics may
form part of a campaign whereby the proponents of a cause draw publ
attention to their cause and attempt to mobilize a section of the public to be
sympathetic. By gaining support from a section of the public, such groups o
organizations can hope to move a government to reform industrial, social or
constitutional policy. Unless a person or organization enjoys access to th
media or press, a privilege restricted to those holding commanding positions
in established political and industrial bodies, he or she may resort to som
form of popular protest to draw attention to his or her cause. Non-violent
disruption has increasingly become the means by which extra-parliamentary
campaigns have endeavoured to draw public attention to themselves.
If Mr. Rees' definition of subversion is taken in the wider sense, his
implicit notion of public order characterizes disruption of government polic
as a threat to order. Industrial and political freedom consistent with tha
notion of public order is limited to non-disruptive opposition to governmen
policy. However, that opposition, where effective, is held by those wh
enjoy the commanding posts in the important industrial and political
concerns. The wider notion of subversion suggests that those who hol

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power will be protected by the government from erosion by those who do
not, and the latter will remain excluded from using disruption, a most
effective non-violent means, for mobilizing public opinion and thereby
increasing their power. Public order is synonymous with the interests of
those holding power, not the whole society, including those outside the
important political and industrial establishments.
Conclusions
We have examined two possible interpretations of Mr. Rees' definition
of subversion. The first takes his definition in its literal sense. It is
incompatible with liberal constitutional government because peace
lawful actions to reform or abolish the sovereign are viewed as subversi
The second imposes a wider meaning on his definition. It too, howev
incompatible with liberal constitutional government because lawful,
violent industrial and political disruption of government policy is moni
as subversion. The first definition results in a recognition that state sec
requires that political freedom ought not to seek reform of the soverei
limitation on liberty. The second suggests that political freedom ought
obstruct government policy, which while also a limitation, is so drastic th
implies a radical transformation of liberty.
R.J. SPJUT*

* Lecturer, Faculty of Social Sciences, University of Kent.

PRIVATE SECURITY AND PRIVATE JUSTICE

In its Discussion Paper on "the private security industry" the H
Office has taken an important, long overdue step in initiating a public
on the issues raised by this rapidly expanding form of social control. [1
welcome this opportunity to join this debate and respond to
Government's appeal for evidence and comments relevant to the argum
considered in its Discussion Paper.[2] The Home Office has succeed
compressing a great deal of information and ideas into a few
Considering the great diversity of the phenomenon under discussio
the potential magnitude of the issues which are raised by the mo
development of private security in Britain and elsewhere, this is no
feat.

Legal Controls over Private Security

From the outset, the Paper establishes a limited framework for
discussion of "the private security industry". Rather than engaging in a
broad discussion of the modern phenomenon of private security, and its
significance and implications for policing and security in our society, the
Paper sets out to examine the more limited question of whether "the private

[1] The Private Security Industry: A Discussion Paper (1979; H.M.S.O., Home Office).
[2] Ibid., para.57.

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