5 Modern
Law Review 162 (1942)
LIVERSIDGE v. ANDERSON
Sooner
or later, the power of the Executive to intern British subjects without trial,
and without specified cause, was bound to be tested before the House of Lords;
and perhaps also it was inevitable that the judgment, once given, should
provoke controversy and anxiety. That the controversy should have been
initiated by a letter to the public Press by the Law Lord who delivered the
leading majority judgment, and that it should purport to refute certain
observations contained in the sole dissenting judgment, is a piquant, and to
some legal minds, a regrettable innovation. Justice is questioned least when it
preserves an Olympian aloofness, at once from the Executive and from the
public. Nevertheless, in so far as it focused public attention upon the
judgment itself, the letter performed a useful service.
The
relation of the judiciary to the Executive within a constitution such as ours,
in which large areas are still governed rather by usages than by rules of law,
is always a delicate one. In time of war it is not a matter for surprise that
the Executive, in the interests of public safety, should seek to free wide
classes of official acts from judicial control altogether. The question whether
it actually has done so is at any particular time a question of law. The
question whether it ought to do so is a question of policy. Courts of law are
concerned only with the former problem. Questions of policy are ultimately for
Parliament to determine. If, however, it should be that Parliament imagines
that it has settled a question of policy by adopting a certain form of words,
and the Courts then give to those words a meaning different from that which
Parliament intended, the situation becomes difficult. It is one of the objects
of this article to seek to discover whether such a confusion of purposes has
arisen in Liversidge v. Anderson.
The
question of the right of the Executive to arrest and imprison persons without
trial has arisen in two forms at various stages of our constitutional history.
It was first claimed as a prerogative right. In more recent times, it has been
claimed under general powers delegated by Parliament to the Executive. As a
prerogative right, it was regularly exercised by the Tudors, and was challenged
in The Case of the Five Knights in 1627.[1] The Five Knights had
refused to pay a forced loan, and were detained in the Fleet prison under a
warrant of the Privy Council. They applied for writs of habeas corpus, to which the Warden
of [*163] the Fleet made a return that the
prisoners were in his custody by virtue of a warrant of the Privy Council,
stating that the prisoners were committed “with no particular cause of
commitment but by special command of His Majesty” (per speciale
mandatum regis). The Court held that although if a cause had been stated, it could
examine whether it was sufficient, and free the prisoner if it was not, if no
cause at all were stated, other than the King’s special command, then
the subject had no redress. Coke’s great argument in this case had
obviously impressed the judges, and as Mr. P. E. Roberts pointed out in his
letter to The Times of 12th November, 1941, the Court was reluctant to hold
in favour of the Crown, but the precedents were against the prisoners.
For
all that, the Crown’s victory was an empty one, for those imprisoned
for non-payment of the loan were released on 2nd January, 1628, as a prelude to
the summoning of Parliament by King Charles on the 30th of that month. As soon
as Parliament met, Coke introduced a Bill to make it unlawful to detain any
person in prison for more than three months without trial, and this initiated a
debate on the liberty of the subject, in which issue between the Crown and the
subject was fairly joined. The arguments advanced on both sides during that
debate are worth perusing to-day, as they have remarkable relevance. The result
was an emphatic reaffirmation of the right of the subject to be immune from
detention, except after being charged with an offence according to law, and
being found guilty of that offence. There is a similar reaffirmation in the
Bill of Rights in 1689, and as Lord Shaw points out in his classic judgment in R.
v. Halliday. Ex parte Zadig,[2] an Act of 1701 of the
Scottish Parliament provided similar security for Scotsmen, who had no Magna
Carta, no Petition or Bill of Rights, and no writ of habeas corpus.
For
all that the principle had been so emphatically reaffirmed in these enactments,
there were times of emergency when it was necessary to detain persons without
trial. At such times, prior to the war of 1914-18, the appropriate procedure
was by a statute suspending the Habeas Corpus Acts for a short time. One
example is furnished by the Act 34 Geo. 3, C. 54, passed in 1794, “suspending”
the Habeas Corpus Acts until 1st February, 1795. The virtue of this
procedure was that when the limited period of its operation ended, the whole
matter would have to be brought before Parliament anew. Even on the numerous
occasions in the nineteenth century when the Habeas Corpus Acts were suspended in
Ireland, there was always a Parliamentary [*164] debate and a vote. The effect of
“suspension” was limited, for as Dicey points out, it would
not deprive any person other than one within the purview of the Act of his
ordinary rights. The only persons within the purview of the Act of 1794 (which
was extended during the next seven years) were persons “that are or
shall be in prison within the Kingdom of Great Britain at or upon the day on
which this Act shall receive his Majesty’s royal assent, or after, by
warrant of his said Majesty’s most honorable Privy Council, signed by
six of the said Privy Council, for high treason, suspicion of high treason, or
treasonable practices, or by warrant, signed by any of his Majesty’s
secretaries of states for such causes as aforesaid.”
Dicey[3] compares
the effect of these Acts with a total repeal of Habeas Corpus Acts, and
he points out that the suspensory Acts were at once narrower and wider. They
are narrower because they affect the rights only of those imprisoned foi:
causes specified in the Act. They are wider, because whilst the suspensory Acts
are in operation, it is not possible for anyone to attack the detention of persons
before any Court. If the Habeas Corpus Acts were repealed,
every citizen would lose the protection of the Habeas Corpus statutes,
“but since it would leave alive the now unquestionable authority of
the judges to issue and compel obedience to a writ of habeas corpus at common
law, it would not, assuming the bench to do their duty, increase the power of
the Government to imprison persons suspected of treasonable practices, nor
materially diminish the freedom of any class of Englishmen."[4]
Prior to the War of 1914-18, the Habeas Corpus Suspension
Acts represented the most which had been attempted by the Executive in England
since the days of Charles I, no matter how great the emergency. The troubled
history of nineteenth-century Ireland, however, furnishes, in the Coercion
Acts, what may very well have been the models for the powers taken by the
Executive for Great Britain during the War of 1914-18 and the present war.
Thus, the Coercion Act of 1881 provides—
“I. (i) Any
person who is declared by warrant of the Lord Lieutenant to be reasonably
suspected[5] of having
at any time since the thirtieth day of September one thousand eight hundred and
eighty been guilty as principal or accessory of high treason, treason felony,
or treasonable practices, wherever committed, or of any crime punishable by law
committed at any time since the thirtieth day of September one thousand eight
hundred and [*165] eighty in a prescribed district, being an act of violence
or intimidation, or the inciting to an act of violence or intimidation, and
tending to interfere with or disturb the maintenance of law and order, may be
arrested in any part of Ireland and legally detained during the continuance of
this Act in such prison in Ireland as may from time to time be directed by the
Lord Lieutenant, without bail or mainprize; and shall not be discharged or
tried by any court without the direction of the Lord Lieutenant; and every such
warrant shall for the purposes of this Act, be conclusive evidence of all
matters therein contained, and of the jurisdiction to issue and execute such
warrant, and of the legality of the arrest and detention of the person
mentioned in such warrant.”
It will be observed that the concluding clauses of this subsection
establish the position which now exists under Regulation i8B since the decision
of the House of Lords in Liversidge v. Anderson, but it is obvious
that the Coercion Act is much more concerned with legal forms than the
regulations either during the War of 1914-18 or during the present war, and
Subsection (2) of the same section provides that every warrant shall state the
character of the crime of which the arrested person is suspected, and also
provides that a copy of the warrant shall be given to the person arrested on
the occasion of his arrest. Further, all cases of persons arrested under this
Act must be reconsidered at three months intervals.
The steady growth in the power of the Executive in the half
century prior to the outbreak of the first World War was no doubt responsible
for the form which the curtailments of the liberty of the subject then took,
for they were no longer achieved by the method of Habeas Corpus Suspension
Acts, which Blackstone had regarded as the only proper way of proceeding in a
national emergency, but by way of a general delegation of power to the
Executive under the Defence of the Realm Acts, not for a limited period as the
older Acts had done, but for the duration of the war. Thus, a blank cheque was
given to the Government of the day, subject to Parliamentary scrutiny; but such
scrutiny, by a Parliament which, then as now, had been elected some years
before the war, and which could not be dissolved whilst the war was in
progress, could scarcely be regarded as effective control. In the recent
debates in Parliament upon Regulation i8B, as in the debates upon Regulation
i4B in the last war, the Government has fallen back upon two contradictory
arguments.: (i) These powers have been delegated in their wide form to the
Executive by Parliament, so the Executive cannot be blamed if [*166] it takes
advantage of their amplitude; (2) the powers are not really arbitrary, because
Parliament controls their exercise. Both arguments cannot be right, and they
conceal the fact that for the period of the war, our traditional liberties,
dating from Magna Carta, have been swept aside, and we have become a
“police state.”
The first three Defence of the Realm Acts passed in the last war
all reflected a triumphant Executive’s desire to dispense completely
with ordinary legal safeguards. The first two Acts, of 8th August and 28th
August, 1914, provided that “His Majesty in Council has power to issue
regulations as to the powers and duties of the Admiralty and Army Council, and
of members of H.M. Forces and other persons acting on his behalf, for securing
the public safety and the defence of the realm; and may by such regulations
authorise the trial by courts-martial and punish- ment of persons contravening
any of the provisions of such regulations.”
These two Acts therefore only declared that the Crown had power to
issue regulations upon the existing powers and duties of the Admiralty and Army
Council. It was not in this sense that the Acts were interpreted by the
Executive which forthwith made regulations directing arrests without warrant,
the entry upon land or buildings, and even for the destruction of private
property. These were declared ultra vires by the Courts, where-
upon a third Act, of 27th November, 1914, was passed, giving the Crown power to
issue regulations “for securing the public safety and defence of the
realm and as to the powers and duties for that purpose of the Admiralty,
etc.” Once again provision was made for trial by courts-martial,
except that minor offences could be dealt with by courts of summary
jurisdiction. In this way, the Executive had obtained a general power to make
regulations for the public safety and defence of the realm, and the
court-martial had been made the normal way of procedure in respect of all serious
breaches of them. Public opinion had viewed these developments with serious
anxiety, however, and eminent lawyers of such differing opinions as Lords
Haisbury, Haldane, Bryce, Loreburn, and Parmoor had united in the House of
Lords to condemn them. The result was that a further Act, of 16th March, 1915,
was passed, restoring the right of a British subject, charged with an offence
under the Regulations, to trial by jury.
Under Regulation 14B, however, persons could be detained without
being brought to trial at all. It ran: “Where on the recommendation of
a competent naval or military authority or [*167] of one of
the advisory committees hereinbefore mentioned it appears to the Secretary of
State that for securing the public safety or the defence of the realm it is
expedient in view of the hostile origin or associations of any person that he
shall be subjected to such obligations and restrictions as are hereinbefore
mentioned, the Secretary of State may by order require that person …
to be interned.”
Zadig, a naturalised British subject of German origin, was
interned under the Regulation, and applied for a writ of habeas corpus. The only
ground on which Zadig could succeed was that the regulation was ultra vires. The Lord
Chancellor (Lord Finlay), Lords Dunedin, Atkinson and Wrenbury, thought that
the Regulation was not ultra vires. Lord Shaw, the only
dissentient, thought that it was. The real issue in the trial was whether the
Defence of the Realm Acts had conferred an unlimited power upon the Executive,
or. whether there were limits. For the appellant it was argued that the Act
contained a limitation, since it had provided machinery for the trial of
persons committing offences against the Regulations. There were no express
words concerning detention without trial in the Act, and a procedure so utterly
at variance with the English constitution ought not to be read into the Act by
implication.
The substance of Lord Finlay’s judgment was that the Act
authorised provisions of two kinds—for prevention and for punishment.
Persons who infringe the Regulations are to be punished. Persons against whom
preventive measures are taken are to be detained. “Any preventive
measures, even if they involve some restraint (says Lord Finlay) or hardship
upon individuals, do not partake in any way of the nature of punish- ment, but
are taken by way of precaution to prevent mischief to the State.” This
distinction may appear highly academic to a person who has been
“detained” without trial, and as Lord Shaw pointed out in his
famous judgment, it accords ill with Blackstone’s observation that
“the confinement of the person, in any wise, is an imprisonment. So
that the keeping a man against his will in a private house, putting him in the
stocks, arresting or forcibly detaining him in the street, is an
imprisonment.” This, incidentally, is the basis of the test of false
imprisonment.
Lord Atkinson’s judgment contains some curious
misconceptions concerning the effect of the Defence of the Realm Act. After
observing that several topics to which the appellant’s counsel had
addressed themselves were interesting historically, but had little relevancy,
he cites a statute of 1360 relating to the powers of justices of the peace to
take up persons of ill-fame, [*168] and to
compel them to find sufficient surety for their good behaviour. He then
delivers himself of the following curious proposition-
“If the
Legislature chooses to enact that he can be deprived of his liberty and
incarcerated or interned for certain things for which he could not have been
heretofore incarcerated or interned, that enactment and the orders made under
it, if intra vires, do not infringe upon the Habeas Corpus Acts in
any way whatever, or take away any rights conferred by Magna Carta, for the
simple reason that the Act and these orders become part of the law of the land.
If it were otherwise, then every statute and every intra vires rule or
by-law having the force of law, creating a new offence for which imprisonment
could be inflicted, would amount pro tanto to a repeal of the Habeas Corpus Acts or
Magna Carta.”
Upon this it is sufficient to observe: (i) That the main complaint
in Zadig’s case was that he was interned without any offence at all
being disclosed; and (2) that obviously a statute or a by-law creating a new
offence does not in any way infringe Magna Carta or the Habeas Corpus Acts,
since persons accused of such new offences are brought to trial before the
Courts-a procedure which it is the purpose of Magna Carta, the Habeas corpus Acts and
many other constitutional enactments to uphold, and which Regulation 14B had
flagrantly transgressed.
Lord Shaw’s very full judgment in this case deals
adequately with the constitutional points involved, and some of his
observations have become frequently quoted expositions of constitutional
doctrine. Fundamentally, he rejected the view that the Defence of the Realm Act
could be so construed as to remove constitutional rights by implication, and
the following extract from Maxwell on the Interpretation of Statutes,[6] which he
cites in his judgment, appears conclusive—
&147;Repeal by
implication is not favoured. A sufficient Act ought not to be held to be
repealed by implication without some strong reason. It is a reasonable
presumption that the Legislature did not intend to keep really contradictory
enactments in the statute-book, or, on the other hand, to effect so important a
measure as the repeal of a law without expressing an intention to do so. Such
an interpretation, therefore, is not to be adopted, unless it be inevitable.
Any reasonable construction which offers an escape from it is more likely to be
in consonance with the real intention.&148;
Although Lord Shaw’s view did not prevail, the general
con- sensus of opinion on constitutional law since R. v. Halliday has [*169] been in
favour of the assumption that his view more accurately represented the position
than that of the majority, and as Mr. F. W. Hirst (one of the counsel for the
appellant Zadig) pointed out in a letter to The Times of 12th
November, after the writ of habeas corpus had been refused by
the House of Lords, Zadig was liberated almost immediately.
It has been sought to set out above the constitutional back-
ground of Liversidge v. Anderson.[7] By the
beginning of the present war, the power of the Executive had advanced still
further, and there was no longer any question whether the appropriate method
for the curtailment of the liberties of the subject was by a Habeas corpus Suspension
Act or by departmental regulation. The only question was how widely the Act
authorising the regulations should be drawn. The answer is furnished by the
terms of Section r of the Emergency Powers (Defence) Act, 1939, which provides
that the King may, by Order in Council, make such regulations “as
appear to him to be necessary or expedient for securing the public safety, the
defence of the Realm, the maintenance of public order and the efficient
prosecution of any war in which his Majesty may be engaged, and for maintaining
supplies and services essential to the life of the community,” and to
avoid the difficulties which were raised in R. v. Halliday.
Subsection (2) provides that the Defence Regulations may include regulations
“for the detention of persons whose detention appears to the Secretary
of State to be expedient in the interests of the public safety or the defence
of the Realm.”
Armed with this wide authority, the Executive advanced a step
further, and prepared regulations, of which Regulation i8B was drafted in terms
which would have given the Home Secretary authority to intern persons entirely
at his discretion. The wide terms of the regulation aroused anxiety, both in
Parliament and among the general public, with the result that this regulation
was withdrawn, and was submitted in amended form, so that it ran: "If the
Secretary of State has reasonable cause to believe” that a pèrson is
of hostile associations, and it is necessary to exercise control over him, then
the Home Secretary may make an order for his detention. In Liversidge v.
Anderson, Mr. Liversidge issued a writ against the Home Secretary,
claiming a declaration that his detention was unlawful, and claiming damages
for false imprisonment. The defence admitted the detention under Regulation
18B, and Mr. Liversidge thereupon took out a sum- mons before the Master,
asking for an order that the Home Secretary should give particulars (a) of the
grounds on which the [*170] first defendant (Sir John Anderson)
had reason to believe Mr. Liversidge to be a person of hostile associations,
and (b) of the grounds on which he had reasonable cause to believe that, by
reason of such associations, it was necessary to exercise control over him. The
Master refused to order the defendant to deliver these particulars, and Tucker,
J., the Court of Appeal, and finally the House of Lords, upheld this refusal.
The net result of the decision is that the safeguards which the House thought
it had imposed when the original draft regulation was withdrawn have proved
entirely illusory, and the discretion of the Home Secretary becomes free from
any legal fetter.
On the narrow point of construction, the operative part of Lord
Maugham’s judgment (which represented the views of the majority) is
contained in the following paragraph—
“In the
absence of a context the prima facie meaning of such a phrase as ‘if
A. B. has reasonable cause to believe’ a certain thing, it should be
construed as meaning ‘if there is in fact reasonable cause for
believing’ that thing and if A. B. believes it. But I am quite unable
to take the view that the words could only have that meaning. It seems
reasonably clear that if the thing to be believed is something within the
knowledge of A. B., or one for the exercise of his exclusive discretion, the
words might well mean if A. B. acting on what he thought was reasonable cause
(and of course acting in good faith) believed the thing in question.”
To this proposition, Lord Atkin in his dissenting judgment
replied—
“It was
surely incapable of dispute that the words ‘If A has X’
constituted a condition the essence of which was the existence of X and the
having of it by A. The words did not and could not mean ‘If A thinks
that he has.’ ‘Reasonable cause’ for an action or a
belief was just as much a positive fact capable of determination by a third
party as was a broken ankle or a legal right. That meaning of the words had been
accepted in innumerable legal decisions for many generations;
‘reasonable cause’ for a belief when the subject of legal
dispute had been always treated as an objective fact to be proved by one or
other party and to be determined by the appropriate tribunal.”
Other grounds for the decision of Lord Maugham and the majority
were obviously administrative rather than legal—for example, the
consideration that the Minister would be acting on information of a highly
confidential character, which could not be disclosed to the person detained or
to the Court without the gravest risk of prejudicing the activities of the Home
Office. One [*171] might have thought that if the proceedings in Court were
in camera (as they usually are in treason trials in war time) that counsel and
officers of the Court were at least as capable of protecting the
State’s vital interests as Civil Servants employed by the Home Office;
but altogether apart from this, as Lord Atkin pointed out, there was no question
of substituting the decision of the judge for that of the Minister. “A
Judge had the duty to say whether the conditions of the power of detention were
fulfilled. If there were reasonable grounds, the judge had no further duty of
deciding whether he would have formed the same belief, any more than, if there
was reasonable evidence to go to a jury, the judge was concerned with whether
he would have come to the same verdict. It was further argued that the grounds
of belief might be confidential matters of public importance, and that it was
impossible to suppose that the Secretary of State was intended to disclose
either his grounds or his in formation to the Court. The objection was answered
by the very terms of the Regulation itself, in its provisions that the detained
person had the right to make objections to the advisory committee, and that the
chairman must inform the objector of the grounds on which the order had been
made against him.”
It was argued in a leading article in The Times of 4th
November, commenting on the decision of the House of Lords, that a real check
on the Home Secretary’s discretion existed in the advisory committee,
but as Sir Irving Albery, M.P., pointed out in a letter the following morning,
although the chairman of this committee is a distinguished lawyer, in over a
hundred cases the decision of the Home Secretary has been contrary to the
advice of the committee, and in reaching these decisions, the Home Secretary
has stated in the House of Commons that he has not been influenced by
additional information, available to himself but not to the committee He has
simply reached a contrary decision on a different judgment of the same facts.
This establishes beyond all possible doubt that the grounds of internment are
purely administrative, and that the procedure is not even quasi-judicial.
It is one of the happier features of this controversy that there
is no suggestion that the Home Secretary has used his powers oppressively, in
this, or in other cases. Indeed, the present Home Secretary’s tenure
of office has coincided with a liberal policy in a time of extreme difficulty
and national danger—a policy upon which it will be possible to look
back with satisfaction when the war is over. The issue, therefore, is essentially
one of general principle, and public anxiety has been aroused, not by any
specific [*172] act, but by the abdication of the judiciary from all
control of the Executive in matters vitally affecting the liberty of the
subject. It may be recalled that when the odious Defence of the Realm Acts, and
the regulations thereunder, were repealed after the last war, the Government
found it expedient to pass the Emergency Powers Act, 1920, designed to give the
Executive very wide powers to deal with civil disorder, but Section 2 (3) of
that Act explicitly provides “that no such regulations (as the
Executive may enact) shall alter any existing procedure in civil cases, or
confer any right to punish by fine or imprisonment without trial.” It
would seem, therefore, that it is impossible to intern under any counterpart to
Regulation 18B under the Emergency Powers Act, and in this way the Rule of Law
received re-affirmation when the last war was concluded. Those who have greeted
Lord Atkin’s judgment with warm approval are not unaware of the urgent
necessity for vigorous Executive action in the interests of national safety in
a war such as is at present being waged, but they are also aware that
“appetite grows with that it feeds upon, ” and they would see
in even the limited check which Lord Atkin’s interpretation of
Regulation i8B would impose upon the Executive a reassertion of a principle for
which a number of Englishmen in recent years have rather strangely lost their
enthusiasm.
G.
W. Keeton.
Postscript
Liversidge v. Anderson was followed by the
House of Lords in Greene v. Secretary of State for Home Affairs (1942),
III L.J.K.B. 24. In this extraordinary case, an error in the order made against
Mr. Greene enabled the Court, in hearing his application for a writ of habeas
corpus, to find the writ bad, and so enable Mr. Greene for the first
time to obtain from the Home Office the name of the person on whose statement
he was detained. When this person was interviewed, he completely denied the charges
he was alleged to have made; whereupon, and in spite of the decision of the
House of Lords upon a fresh application for a writ of habeas corpus (after Mr.
Greene had been detained afresh), Mr. Greene was released. As Mr. Liversidge
has also been released, the victory for the executive in these two cases seems
to be as empty as the victories of the executive in the Case of the Five
Knights and in Zadig’s Case.
In spite of these considerations, these judgments would appear to
commend themselves to Sir William Holdsworth and. to the Editor of the Law
Quarterly. The former (58 L.Q.R. 1-3) takes the broad ground that in these
cases there is no triable issue at all [*173]
— an attitude which is comprehensible only on the hypothesis that
under these Acts the judiciary abdicates completely in favour of the executive.
If this is the position, then the distinction between our present constitution
and that of any Continental “police state” is reduced to
vanishing point. Professor Goodhart’s argument is a subtle one. He
declares that the propositions: “If A has a broken ankle,”
and” if A thinks be has a broken ankle,’ the distinction
between which was the basis of Lord Atkin’s judgment, are really
identical. All statements of fact, he suggests, are really only statements of
someone’s opinion on those facts. “If A falls and says
‘I have a broken ankle,’ this means ‘I think I have
a broken ankle.’ Later, when the doctor examines A’s leg, and
then says ‘A has a broken ankle,’ this again means
‘I think A has a broken ankle.’” In both cases the
statement of fact is only a statement of opinion. We must confess that we are
quite unable to follow this reasoning. An ankle is broken, not because A or B
or anyone else thinks it is, but because certain objective facts exist from
which a fracture is the only possible deduction—or does Professor
Goodhart go further, and suggest that there are no such things as facts—only
opinions? If Professor Goodhart’s explanation is correct, what are we
to make of the definition of fraud, which declares it to be a misrepresentation
of fact, and then goes on to explain that a misrepresentation of opinion
is not actionable?