Liversidge v. Anderson
Encyclopedia
Liversidge v Anderson [1942] AC 206 is an important and landmark case in English law
which concerned the relationship between the courts and the state, and in particular the assistance that the judiciary should give to the executive in times of national emergency. It concerns civil liberties
and the separation of powers
. Both the majority and dissenting judgments in the case have been cited as persuasive precedent
by various countries of the Commonwealth of Nations
. However, in England itself, the courts have gradually retreated from the decision in Liversidge.
permitted the Home Secretary
to intern people if he had "reasonable cause" to believe that they had "hostile associations". Sir John Anderson
exercised this power in respect of a man called Jack Perlzweig, who used the name Robert Liversidge
, committing him to prison but giving no reason. On appeal, the case, joined with that of Ben Greene
, reached the House of Lords Judicial Committee (HoLJC)
, the highest court of appeal. They had to decide whether the court could investigate the objective basis for the reasonable cause; in other words, could they evaluate the Home Secretary's actions on an objective standard, comparing them to that which might be taken by a reasonable man, or were they to measure them against the personal standard of the Secretary?
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.
, which has been recognised as a defining statement of the need for courts to remain independent of the executive whatever the prevailing circumstances. In his view the majority had abdicated their responsibility to investigate and control the executive, and were "more executive-minded than the executive". Lord Atkin protested that theirs was "a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister". He went on to say:
Lord Atkin continued:
Lord Atkin's view was that the phrase "reasonable cause" in the statute at hand indicated that the actions of the Secretary were meant to be evaluated by an objective standard. As a result, it would be within the court's purview to determine the reasonableness of the Secretary's actions.
, Viscount Simon
, wrote to Lord Atkin asking him to amend the proposed terms of the speech. He did not.
Atkin's interpretation has generally been preferred subsequently. In Nakkuda Ali v Jayaratne a strong Privy Council
held that Liversidge v. Anderson must not be taken to lay down any general rule on the construction of the expression "has reasonable cause to believe". Subsequently Liversidge v Anderson was described by Lord Reid
in Ridge v Baldwin
as a "very peculiar decision". Lord Diplock in I.R.C. v Rossminster Ltd thought that "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".
However, in the 1977 deportation
case of R v. Secretary of State ex parte Hosenball, Lord Denning MR
, in the Court of Appeal, supported judicial non-interference with ministerial discretion in matters of national security.
, have opted to follow Lord Atkin's judgment as well. In A-G of St. Christopher, Nevis and Anguilla v. Reynolds, the Privy Council even went further than Lord Atkin's judgment had intended. Lord Atkin had suggested that a subjective standard would only be applicable if the statute had used phrasings such as "if it appears to the Secretary of State that..." or "where the Secretary of the State is satisfied that..." In this case, however, the Privy Council held that despite the statute's statement that the Governor could detain a person if he was "satisfied" that the person was involved in acts "prejudicial to public safety and order", the statute did not grant unlimited discretion to the Governor; his actions could be evaluated on an objective standard.
In other parts of the Commonwealth such as Singapore
and Malaysia, the courts have generally followed the majority decision in Liversidge. In Singapore, the case of Re Ong Yew Teck saw the arrest of a man under the Singaporean Criminal (Temporary Provisions) Ordinance 1955, which granted police officers the power to arrest and detain anyone "whom he has reason to believe that there is ground to justify his arrest and detention under s. 47" of the ordinance. The detainee appealed, arguing that the phrase "has reason to believe" meant that an objective test of reasonableness was to be used, citing Nakkuda Ali. Justice Chua rejected this argument, and accepted the majority decision in Liversidge as persuasive precedent. In Malaysia, the case which established the subjective test of reasonableness for executive actions was Karam Singh v. Menteri Hal Ehwal Dalam Negeri. The case, heard by the Federal Court
in 1969, remains as binding precedent
in Malaysia. In the case, the appellant had been detained under the Internal Security Act
(ISA), but the statement of the Home Minister giving the grounds for his detention provided only one reason, even though his detention order had initially stated there were more. It was argued that the Home Minister had taken a "casual and cavalier" approach to the detention, and that because the allegations against the appellant had been unduly vague, the Home Minister had acted in bad faith, thereby voiding the detention. The court held that the detention was good, because it could not assess the actions of the executive, applying the subjective test of reasonableness as Liversidge had.
In India
, the Liversidge decision was cited in Gopalan v. State of Madras, where the court held that the subjective test was to be applied. However, subsequent decisions such as Fazal Ghosi v. State of Uttar Pradesh have allowed some measure of judicial intervention by holding that the executive's decisions must be based on "pertinent material"; if it is found that there is no such material justifying the decision, the courts may act. In some other Commonwealth countries such as Malaysia, it has been attempted to overrule the precedent of Liversidge by citing Indian cases as persuasive precedent; in the case of Karam Singh, the Indian case of Jagannath Misra v. State of Orissa, where the facts were similar, was cited. Legal commentators have noted, however, that the Malaysian judiciary has been reluctant to accept Indian authorities, seeking to distinguish
them whenever possible. One Malaysian judge has suggested that "English courts take a more realistic view of things while Indian judges ... impress me as indefatigable, idealists seeking valiantly to reconcile the irreconcilable".
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
which concerned the relationship between the courts and the state, and in particular the assistance that the judiciary should give to the executive in times of national emergency. It concerns civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
and the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. Both the majority and dissenting judgments in the case have been cited as persuasive precedent
Persuasive precedent
Persuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case...
by various countries of the Commonwealth of Nations
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
. However, in England itself, the courts have gradually retreated from the decision in Liversidge.
Facts
Emergency powers in Regulation 18B of the Defence (General) Regulations 1939Defence Regulation 18B
Defence Regulation 18B, often referred to as simply 18B, was the most famous of the Defence Regulations used by the British Government during World War II. The complete technical reference name for this rule was: Regulation 18B of the Defence Regulations 1939. It allowed for the internment of...
permitted the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
to intern people if he had "reasonable cause" to believe that they had "hostile associations". Sir John Anderson
John Anderson, 1st Viscount Waverley
John Anderson, 1st Viscount Waverley, GCB, OM, GCSI, GCIE, PC, PC was a British civil servant then politician who served as a minister under Neville Chamberlain and Winston Churchill as Home Secretary, Lord President of the Council and Chancellor of the Exchequer...
exercised this power in respect of a man called Jack Perlzweig, who used the name Robert Liversidge
Robert Liversidge
Robert William Liversidge , formerly Jacob Perlsweig, was a British Jewish businessman, whose activities sometimes attracted the attention of the police and intelligence services, a reputed spy, and subject of a cause célèbre as an internee in World War II Britain.-Early life:Liversidge's parents,...
, committing him to prison but giving no reason. On appeal, the case, joined with that of Ben Greene
Ben Greene
Ben Greene was a British Labour Party politician and pacifist. He was interned during World War II because of his fascist associations and appealed his detention to the House of Lords. In the leading case of Liversidge v...
, reached the House of Lords Judicial Committee (HoLJC)
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
, the highest court of appeal. They had to decide whether the court could investigate the objective basis for the reasonable cause; in other words, could they evaluate the Home Secretary's actions on an objective standard, comparing them to that which might be taken by a reasonable man, or were they to measure them against the personal standard of the Secretary?
Detention Order
The text of the detention order was as follows:Judgment
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 otherwise that he believed he had reasonable cause. Viscount MaughamFrederic Maugham, 1st Viscount Maugham
Frederic Herbert Maugham, 1st Viscount Maugham PC, KC was a British lawyer and judge who served as Lord Chancellor from 1938 until 1939 despite having virtually no political career at all....
said that the court should "prefer a construction which will carry into effect the plain intention of those responsible" and Lord Macmillan
Hugh Macmillan, Baron Macmillan
Hugh Pattison Macmillan, Baron Macmillan GCVO PC was a Scottish judge.The son of the Revd Hugh Macmillan, he was educated at Collegiate School, Greenock, at the University of Edinburgh and the University of Glasgow...
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.
Dissent
The case is most famous for the dissenting speech of Lord AtkinJames Atkin, Baron Atkin
James Richard Atkin, Baron Atkin was a lawyer and judge of Australian-Welsh origin, who practised in England and Wales...
, which has been recognised as a defining statement of the need for courts to remain independent of the executive whatever the prevailing circumstances. In his view the majority had abdicated their responsibility to investigate and control the executive, and were "more executive-minded than the executive". Lord Atkin protested that theirs was "a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister". He went on to say:
Lord Atkin continued:
Lord Atkin's view was that the phrase "reasonable cause" in the statute at hand indicated that the actions of the Secretary were meant to be evaluated by an objective standard. As a result, it would be within the court's purview to determine the reasonableness of the Secretary's actions.
Significance
The potential power of this dissenting judgment was clearly recognised even before it was published. The Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, Viscount Simon
John Simon, 1st Viscount Simon
John Allsebrook Simon, 1st Viscount Simon GCSI GCVO OBE PC was a British politician who held senior Cabinet posts from the beginning of the First World War to the end of the Second. He is one of only three people to have served as Home Secretary, Foreign Secretary and Chancellor of the Exchequer,...
, wrote to Lord Atkin asking him to amend the proposed terms of the speech. He did not.
Atkin's interpretation has generally been preferred subsequently. In Nakkuda Ali v Jayaratne a strong Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
held that Liversidge v. Anderson must not be taken to lay down any general rule on the construction of the expression "has reasonable cause to believe". Subsequently Liversidge v Anderson was described by Lord Reid
Lord Reid
Lord Reid may refer to :* James Reid, Baron Reid, a Scottish Unionist politician and judge .* John Reid, Baron Reid of Cardowan, a Scottish Labour politician, cabinet minister and chairman of Celtic F.C....
in Ridge v Baldwin
Ridge v Baldwin
Ridge v Baldwin [1964] AC 40 was a British legal case heard by the House of Lords. The judges hearing the case extended the doctrine of natural justice into the realm of administrative decision making...
as a "very peculiar decision". Lord Diplock in I.R.C. v Rossminster Ltd thought that "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".
However, in the 1977 deportation
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
case of R v. Secretary of State ex parte Hosenball, Lord Denning MR
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, in the Court of Appeal, supported judicial non-interference with ministerial discretion in matters of national security.
Commonwealth countries
In the Commonwealth, many jurisdictions, particularly in the CaribbeanCaribbean
The Caribbean is a crescent-shaped group of islands more than 2,000 miles long separating the Gulf of Mexico and the Caribbean Sea, to the west and south, from the Atlantic Ocean, to the east and north...
, have opted to follow Lord Atkin's judgment as well. In A-G of St. Christopher, Nevis and Anguilla v. Reynolds, the Privy Council even went further than Lord Atkin's judgment had intended. Lord Atkin had suggested that a subjective standard would only be applicable if the statute had used phrasings such as "if it appears to the Secretary of State that..." or "where the Secretary of the State is satisfied that..." In this case, however, the Privy Council held that despite the statute's statement that the Governor could detain a person if he was "satisfied" that the person was involved in acts "prejudicial to public safety and order", the statute did not grant unlimited discretion to the Governor; his actions could be evaluated on an objective standard.
In other parts of the Commonwealth such as Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
and Malaysia, the courts have generally followed the majority decision in Liversidge. In Singapore, the case of Re Ong Yew Teck saw the arrest of a man under the Singaporean Criminal (Temporary Provisions) Ordinance 1955, which granted police officers the power to arrest and detain anyone "whom he has reason to believe that there is ground to justify his arrest and detention under s. 47" of the ordinance. The detainee appealed, arguing that the phrase "has reason to believe" meant that an objective test of reasonableness was to be used, citing Nakkuda Ali. Justice Chua rejected this argument, and accepted the majority decision in Liversidge as persuasive precedent. In Malaysia, the case which established the subjective test of reasonableness for executive actions was Karam Singh v. Menteri Hal Ehwal Dalam Negeri. The case, heard by the Federal Court
Courts of Malaysia
The Judiciary of Malaysia is largely centralized despite Malaysia's federal constitution, heavily influenced by the British Common Law and to a lesser extent Islamic law, and is mostly independent from political interference.-History:...
in 1969, remains as binding precedent
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...
in Malaysia. In the case, the appellant had been detained under the Internal Security Act
Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
(ISA), but the statement of the Home Minister giving the grounds for his detention provided only one reason, even though his detention order had initially stated there were more. It was argued that the Home Minister had taken a "casual and cavalier" approach to the detention, and that because the allegations against the appellant had been unduly vague, the Home Minister had acted in bad faith, thereby voiding the detention. The court held that the detention was good, because it could not assess the actions of the executive, applying the subjective test of reasonableness as Liversidge had.
In India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, the Liversidge decision was cited in Gopalan v. State of Madras, where the court held that the subjective test was to be applied. However, subsequent decisions such as Fazal Ghosi v. State of Uttar Pradesh have allowed some measure of judicial intervention by holding that the executive's decisions must be based on "pertinent material"; if it is found that there is no such material justifying the decision, the courts may act. In some other Commonwealth countries such as Malaysia, it has been attempted to overrule the precedent of Liversidge by citing Indian cases as persuasive precedent; in the case of Karam Singh, the Indian case of Jagannath Misra v. State of Orissa, where the facts were similar, was cited. Legal commentators have noted, however, that the Malaysian judiciary has been reluctant to accept Indian authorities, seeking to distinguish
Distinguish
In law, to distinguish a case means to contrast the facts of the case before the court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or legal reasoning of the earlier case will either not apply or will be limited...
them whenever possible. One Malaysian judge has suggested that "English courts take a more realistic view of things while Indian judges ... impress me as indefatigable, idealists seeking valiantly to reconcile the irreconcilable".