27th February 2021
The illiberal and unanimous decision yesterday of the supreme court of the United Kingdom in the Shamima Begum case is reminiscent of another illiberal decision of the highest court, previously known as the appellate committee of the house of lords.
That case – which most lawyers will know and most non-lawyers will not – is Liversidge v Anderson.
This case dealt with the rights of the individual in respect of regulation 18B of the Defence (General) Regulations 1939.
That regulation provided:
‘If the Secretary of State has reasonable cause to believe any person 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, he may make an order against that person directing that he be detained.’
In other words: detention without trial at the discretion of the home secretary.
Of course, many would think such a dreadful thing would never happen in England, with our robust common law rights and so on.
For as even Winston Churchill said:
‘to cast a man into prison without formulating any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes’.
(It is worth noting that ‘odious’ was quite the word for Churchill – see also his ‘fight them on the beaches’ speech: ‘Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail’.)
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But although detention without trial was (supposedly) ‘in the highest degree odious’, the United Kingdom did it anyway.
And one of those detained was Robert Liversidge.
The detention order from the home secretary was as follows:
‘DETENTION ORDER.
‘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’
No charge; no prosecution; no trial; no conviction; no sentence.
Just the opinion of the home secretary.
And so Liversidge brought a legal case against the then home secretary Sir John Anderson, and this was the case that reached the house of lords in 1941.
Liversidge, who averred he was falsely imprisoned, wanted to know the case against him.
But Viscount Maugham and the majority of the law lords were having none of Liversidge’s nonsense.
In a sequence of speeches that are rather quite remarkable the law lords – to use Lord Reed’s unfortunate phrase – accorded respect to the determination of the home secretary:
‘there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith’.
The appeal was dismissed, and Liversidge – sitting in Brixton prison – was ordered at the end of Maugham’s speech to pay the home secretary’s legal costs (though it is not clear whether this order was actually made).
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But not all the law lords nodded-along.
Lord Atkin sat through the very same submissions in September 1941, and he came to a very different conclusion.
He gave a dissenting speech which contained this passage (which I here break into smaller paragraphs for flow):
‘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.
‘Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
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. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.
‘They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular.
Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
‘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.
‘If it be true, as, for the foregoing reasons, I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the [case] before us ought not to be difficult to make.’
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Lord Atkin, 1941: ‘judges are no respecters of persons’
Lord Reed, 2021: ‘[the court of appeal] did not give the Home Secretary’s assessment the respect which it should have received’
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Lord Atkin’s speech in 1941 did not go down well with his fellow judges.
Lord Atkin was cancelled.
As David Pannick details in his book Judges, the other law lords shunned Atkin.
Viscount Maugham, in an extraordinary step, even wrote a letter to the
Times about the language used by his fellow law lord (the short house of lords debate on that letter is
here.)
But Atkin was right.
‘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.’
But that was no consolation to Liversidge detained in Brixton prison back in 1941.
Nor was it consolation to Atkin – for according to Pannick it was widely believed that Atkin never recovered from the hostility of his fellow judges before his death in 1944.
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Perhaps in a few years a supreme court justice may suggest – perhaps cautiously in an extra-judicial lecture, or perhaps more confidently in an actual decision – that the court of appeal got the Begum case right, and the supreme court did not.
That will be no consolation to anyone either.
But as the 1941 case of
Liversidge v Anderson shows, it is not the first time that the judges of the highest court – in the words of one of its greatest former members – ‘
show themselves more executive minded than the executive’.
And it certainly will not be the last time they do this in respect of the rights of the individual in the face of the powers of a home secretary.
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Sources – Judges by David Pannick and In the highest degree odious: detention without trial in wartime Britain by A W Brian Simpson – and both books are highly recommended
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Would there be, perhaps, a whiff of ‘pour encourager les autres’ in the thinking behind this judgement?
Is this a cost of Brexit? Our judges have lost the cover of the ECJ and many Conservative politicians are anti-ECHR.
I have no background in this legal area but wonder if the wording of the judgement could leave the case open to be challenged in an International Court specialising in Human Rights. It may be that such courts have already declared that the matter in question is always at the discretion of the individual country (as it is related to security) but I am very concerned how this ruling effectively allows the removal of long acknowledged human rights by diktat.
She could make an application to the European Court of Human Rights. The difficulty would be that Article 1 ECHR requires “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”, and it could be said that at the time the decision to deprive her of citizenship was made, she was in Syria, i.e. outside the UK’s jurisdiction.
I do wonder if the Liveridge judgement was influenced by the anti-Semitism prevalent in the upper echelons of society in the late 1930s resulting in the internment of Jewish refugees from Nazi Germany. (My late father was interned in Canada in 1940 having narrowly escaped from Berlin in early 1939).
I detect a whiff of islamaphobia in this latest judgement.
Refreshing choice of precedent there …
A fascinating read, thank you. I did have a look at the brief debate in the Lords following Maugham’s letter to the Times, and was struck by this passage in his address to the House: “I did not by my letter attempt to criticize my colleague, Lord Atkin, or his statements in other respects, though I confess to my doubts as to the justice of some of his observations.” Wow, low blow! Viscount Maugham was clearly not a fan of Lord Atkin. Interesting and perhaps a little saddening too, to learn that Law Lords can behave just as badly as any other clique in society, should one of their number have the temerity to disagree with the collective!
I am not a lawyer and did not know of Liversidge v Anderson. I therefore found the original post extremely valuable. The Supreme Court decision in the Begum case illustrates a process that has been taking place in this country since the 2016 referendum on EU membership. This involves the abandonment of long-established constitutional principles, carefully-considered checks-and-balances and the highest respect for individual liberty in favour of hasty and ill-considered decisions aiming to curry favour with popular sentiment. It is a process that is clearly gathering pace, and is extremely alarming for those of us who wish to live in a civilised, liberal order. I am grateful for Mr Allen Green’s excellent and tenacious work.
One of your best Mr Green. Thank you.
It’s difficult not to read the UKSC decision without thinking of the twin reviews currently underway regarding the power and ‘reach’ of the judiciary – the Independent Review of the Human Right Act, chaired by Sir Peter Gross; and the Independent Review of Administrative Law, chaired by Lord Faulks. For both, the decision in Begum seems almost designed as a rejoinder to critics.
The Court of Appeal decision was handed down in the same month (perhaps the same week, if I recall correctly?) that the Faulks committee published its terms of reference. I wonder whether this Sword of Damocles inspired the ‘respect’ for the Home Secretary’s decision?
It seems telling somehow (if no consolation to Lord Atkin, considering how shabbily he was subsequently treated) that Liversidge was released less than two months after the Law Lords’ ruling.
It is hard to conceive that Liversidge was “a person of hostile associations” on 2 October, when the Home Secretary’s Order was served, but not on 31 December, when he was released.
I had not realised until today that Lord Atkin was born in Australia and raised in Wales. His very strong Christian faith came out in the neighbour test in another case for which he is justly remembered, Donoghue v Stephenson, the snail in the ginger beer.
As I understand it, Liversidge v Anderson was distinguished away but survived as binding English caselaw until 1979, when Lord Diplock acknowledged it was wrong (if expedient and perhaps excusable) in Rossminster, and Lord Scarman agreed it should no longer haunt the law. https://www.bailii.org/uk/cases/UKHL/1979/5.html
But Liversidge had parallels, such as the Korematsu case in the US in 1944, about a man who did not comply with legislation for the forced relocation and detention of people of Japanese descent, with three strong dissents (“[he] has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”). Almost 100 years earlier, the US Supreme Court justice Benjamin Curtis resigned over the repercussions to his dissent in the Dred Scott case a few months earlier.
Some further interesting reflections on the impact of Liversidge here. https://www.monash.edu/__data/assets/pdf_file/0003/573123/01_Lee.pdf
Atkin LJ also coined the ‘classic’ definition of a defamatory statement in Sim v Stretch [1936] 2 All ER 1237: “… would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”
Perhaps the ghost of Dreyfus walks through the British Courts of Justice and public opinion ?
From Lewis Carrol to Emile Zola with a little bit of Camus there for good measure.
An interesting post which raises disconcerting questions about modern British Society .
Very nice. Thank you for this.
On evidence of what hopefully are rare occasions of partiality on the part of judges, I’ve been unable to find evidence of a well known if not notorious judge, who admitted some years after delivering his judgment, that it was designed to protect the government and not based on sound legal principles. If I remember correctly, it involved the dismissal of a claim for compensation and may have had a connection with agriculture. If anyone knows the case please do post it here.