I shall today be exploring the case of Liversidge v Anderson ( AC 206). It isn’t a case I was immediately familiar with, but is significant nonetheless for its impact on constitutional law and theory, especially concerning the authority of the courts in challenging Parliament.
This case is particularly significant not because its outcome affected the nature of the courts’ relationship with Parliament, in fact it is a dissenting judgement with which we are concerned. Naturally, a dissenting judgement doesn’t have the persuasive calibre of a prevailing judgement, which would grant it the authority of law, but this case deftly illustrates the role taken on by judges as a social conscience, prepared to challenge statutes enacted by Parliament where they believe they infringe too far on our civil liberties or basic freedoms. Moreover, when discussing points of law and finding precedent to support a judgement, whether a judgement was dissenting or not is irrelevant when it is authored by an expert whose legal opinion is not to be disregarded simply because the others on the bench disagreed.
The case is primarily concerned with a bill presented to Parliament in the summer of 1939. At this time, Europe was not yet embroiled in conflict with Nazi Germany, but the threat of war was present in the United Kingdom and so, in order to prepare for the domestic threats war brings (foreign agents or Nazi sympathisers, for example) a bill was read in Parliament that would provide certain Emergency Powers, and allow the enactment of Defense Regulations that would, “(a) make the provision for the … detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or defense of the Realm.”
Although there was some opposition to this clause in the House of Commons, the bill was enacted with this passage included, and the first application of these Defense Regulations was made; the wording of which was as follows:
“The Secretary of State, if satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the public safety or the defense of the Realm it is necessary to do so, may make an order.”
The danger is obvious. The Act gave the Secretary of State the authority to detain without trial any person he believes to be a threat to either Public Safety or the Defense of the Realm. This therefore granted the minister the authority to detain potentially innocent people for an indeterminate amount of time without their proper right to Habeas Corpus. Chillingly, this echoes all to closely some of the more extreme anti-terror measures introduced after September 11th, which served just as well to erode our well established right to the proper system of justice.
The Regulations, after war finally broke out, were issued 1,428 times between May and August 1940, so concerned was the Government at the prospect of there being subversive elements in the United Kingdom. One such order was used against Mr. Robert Liversidge, whose real name was Jack Perlzweig, and who was serving as a Volunteer Pilot Officer in the Royal Air Force. The application of these emergency powers against Mr Liversidge (Perlzweig) meant that he was imprisoned without charge or opportunity to prove his guilt or innocence.
Although the majority decision taken by the House of Lords was that Emergency Legislation in times of war should be given more, and not less effect, Lord Atkin, in his dissenting judgement, made an impassioned argument to reign in the power of the Executive by the Judiciary by applying appropriate safeguards against unlimited executive power, and proposed that the wording of the act, which had been amended the year before to read where the secretary of state has a reasonable cause, implied that there was an objective measure of reasonableness to apply this law, and that it was the court’s responsibility to determine this measurement and apply it accordingly. In his speech, Lord Atkin says,
“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
It is vital to recognise the last phrase of this quotation, that it is the responsibility of the court to be “alert to see that any coercive action is justified in law.” Atkin identifies here that it is the responsibility of the courts to define where the government is acting in a way that inexcusably grants excessive power to Government and unlawfully penalises ordinary citizens without the availability of any legal recourse. This is, in fact, the same argument used in Anisminic: that the courts cannot be excused of their authority to rule whether a government body is acting outside, or making incorrect use of, the law through statute. As a result, Atkin’s speech is in fact quite significant, especially given that it predates Anisminic by nearly 20 years.
Atkin went on to say , “I know of only one authority, which might justify the suggested method of construction. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that’s all.’ After all this long discussion, the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has’. I have an opinion that they cannot and the case should be decided accordingly.”
The speech eloquently asserts that it is not the right of ministers to arbitrarily decide where someone should be imprisoned, and be deprived of their liberties. He argues that responsibility to prevent this behavior lies with the courts, who are empowered to decide how statutes should be interpreted when such a question is raised. This echoes A.C. Gray, mentioned above, who wrote that, ‘“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them”; a fortiori, whoever hath absolute authority not only to interpret the Law, but to say what the Law is, is truly the Law-giver.’
As I mentioned, Atkin’s judgement was dissenting, which means it had no direct impact on the outcome of this particular case, but its significance and impact continued to be felt throughout the twentieth century, and Atkin came to be relied upon more even than the prevailing judgement, as Judges made greater attempts to undermine Parliamentary Sovereignty in order to secure against injustices committed against the people by an executive attempting to wield absolute power.