“No-one remembers who came in second.”
So said Walter Hagen, or perhaps Charles M Shultz. Maybe this isn’t always quite so true in the courtroom as on the sports field. After all, the US Supreme Court has a distinguished tradition of dissenting opinions – pungent, saddened, witty, progressive, principled – which has both illuminated and driven the law. We read with admiration the dissents of Justices from Curtis and Harlan, through Holmes and Brandeis to Stevens, amongst others. (I’ll leave any assessment of the contribution of Justice Scalia to others with the benefit of far greater knowledge than me.)
Not quite so much over here, where the value of an appellate court in a common law system speaking strongly with a single voice has – perhaps until relatively recently – been too highly treasured. I want to write about one particularly clarion-like and influential counterexample; and because it has extraordinary present-day resonances in the judicial control of executive power, it is worth considering in some detail.
I recently saw a play called “Regulation 18B – No Free Man” – by a US attorney, Scott Wright. It is a pungent and timely celebration of the 75th anniversary of the House of Lords judgment in the case of Liversidge v Anderson. The play’s website is here; and if you get a chance to see it, please do take the opportunity; I commend it.
The Regulation 18B of the title was part of the wartime emergency legislation known as the Defence (General) Regulations 1939, and permitted the Home Secretary (Sir John Anderson, the named defendant) to make an order detain an individual without trial if he
“… has reasonable cause to believe [him] to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him …”
Robert Liversidge was perhaps a rather unsavoury character. Real name Jack Perlzweig, in his early business life he associated with a pair who were accused of fraudulent share dealings, although he was never charged; and he later fraudulently obtained a Canadian passport. Then, having formally adopted his sister’s married name as his own surname, his business dealings brought him into contact with both those in the intelligence community and those known to have fascist sympathies. He was also Jewish, which was held against him by his accusers.
He was made the subject of an order under Regulation 18B, which said simply:
Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him:
Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following Order:
I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained.
(Signed) John Anderson,
One of His Majesty’s Principal Secretaries of State.
He was accordingly interned in Brixton jail; and so he sued for wrongful detention.
The issue that took the case to the House of Lords was whether the Home Secretary had to produce evidence that, he said, reasonably gave rise to his belief as set out in the order (which could then be tested against the objective standard of the reasonable man); or whether it was sufficient for him to make an order stating that he had reasonable cause to believe. (The Home Secretary had not produced any evidence at all to the court, even to the limited effect that he thought he had reasonable cause to believe; the government’s case rested simply on the fact and wording of the order.)
It is clear that – especially in the dark days of late 1941, when Britain stood alone and in grave danger of succumbing to the Nazi threat – having to produce evidence to substantiate a belief that an individual was “a person of hostile associations” would not only be a distracting use of resources; it could possibly reveal information of extraordinary value to the enemy, particularly about the strength and depth of our hugely successful counterintelligence operations.
So here was the question: should the courts require the Home Secretary to prove that he had reasonable cause to believe, as set out in the order? Or was the order sufficient on its face to establish the lawfulness of Liversidge’s detention?
The majority decision
The decision of the majority, favouring the Home Secretary over Liversidge, is admirably summarised here – and, because the majority is not the focus of this article, I make no apology in adopting that summary.
The majority of the Law Lords held that the legislation should be interpreted so as to make effect what Parliament intended, even if that meant adding to the words to give that effect. Although Parliament had made the power subject to a reasonable belief they accepted the Home Secretary’s statement that he held such a belief; in other words, that he believed he had reasonable cause. Viscount Maugham said that the court should “prefer a construction which will carry into effect the plain intention of those responsible” and Lord Macmillan that “it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy”. According to him, if the Secretary had acted in good faith, he need not disclose the basis for his decision, nor were his actions justiciable in a court of law.
The majority of the Lords appear to have been greatly concerned with the fact that they were dealing with a matter of national security. In their view, it was not appropriate for a court to deal with matters of national security, especially as they were not privy to classified information that only the executive had.
Lord Atkin’s dissent
Lord Atkin would have none of it. The view of the majority, he said, interpreted “if the Home Secretary has reasonable cause” to mean “if the Home Secretary thinks he has reasonable cause” – which, in the absence of bad faith, would impose no condition at all on the exercise of a draconian executive power.
In a forcefully-expressed passage, he noted that
“… the words “if A has X” constitute a condition the essence of which is the existence of X and the having of it by A. If it is a condition to a right (including a power) granted to A, whenever the right comes into dispute the tribunal whatever it may be that is charged with determining the dispute must ascertain whether the condition is fulfilled. In some cases the issue is one of fact, in others of both fact and law, but in all cases the words indicate an existing something the having of which can be ascertained. And the words do not mean and cannot mean “if A thinks that he has.” “If A has a broken ankle” does not mean and cannot mean “if A thinks that he has a broken ankle.” “If A has a right of way” does not mean and cannot mean “if A thinks that he has a right of way.” “Reasonable cause” for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right.”
He went on to demonstrate that common law and statutory powers of arrest and detention were invariably subject to a condition of reasonable cause to exercise the power; and that the existence of the cause and its reasonableness were both matters of objective fact, to be determined by the court.
“… as to the “subjective” meaning now contended for by the Secretary of State it has never at any time occurred to the minds of counsel or judges that the words are even capable of meaning anything so fantastic.”
He then focused on the Defence Regulations themselves, and analytically demonstrated that the phrase “reasonable cause to believe” was plainly used by their creators to mean something different from subjective belief. Indeed, in one place, the Regulations gave a power to a chief police officer to make an order “if he [was] satisfied that there [was] reasonable cause to believe that …”, which was plainly subjective; and an aggrieved party could then appeal to the court, which would overturn the order if it was persuaded that there was, objectively, no such reasonable cause to believe.
There then follows a peroration which, given the times in which it was made, must have made a real impression.
“I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. … In this country, amid 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. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
“I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate: The words have only one meaning. …
“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 master — that’s all.’” (“Through the Looking Glass,” c. vi.) After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.”
I do not know whether the play was accurate in depicting a conversation between Lord Atkin and another of the Law Lords, Lord Wright, in which the latter begged him to tone down the language of his judgment if he could not be persuaded to change his mind. But the scorn implicit in comparing his fellow judges’ logic with something from Alice in Wonderland is palpable.
What happened next?
After all that, a mere six days after the decision of the House of Lords, it was decided that there were no longer compelling reasons for Liversidge’s continued detention. He was released on the last day of 1941, and went on to serve in the National Fire Service. Soon after the war, he was accused of corruption in a public inquiry into such allegations against government ministers and civil servants centred around a Zionist spy, but he was exonerated. He went on to have a successful business career, accumulating considerable wealth, and died – apparently still bitter about his treatment – in 1994.
It was not long after the end of the Second World War that the highest courts accepted that Liversidge v Anderson laid down no general rule on interpreting the phrase “reasonable cause to believe”. But it was not until 1979 that the a judge in the House of Lords could say:
“For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.”
In an article in The International Lawyer in 2009, the one-time Lord Chief Justice Lord Bingham wrote of Lord Atkin’s dissent:
“we are entitled to be proud that even in that extreme national emergency there was one voice – eloquent and courageous – which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom.”
The rule of law, the principle of legality and the protection for fundamental human rights, as now recognised by the courts, would – one would hope – never again allow a judicial decision as dominated by political expediency as this was. But although we ostensibly live in a time of peace, we still face threats which governments have to take powers to address; and it is incumbent on all of us – citizens, lawyers, judges – to ensure that the limitations, checks and balances on those powers are protected. It is rightly said that civilised societies must fight their wars with one hand tied behind their backs. This applies just as much to wars at home as to those fought against a foreign enemy. For if not, we face something worse than losing the war; we face winning the war and losing the very thing we were fighting for.