Lord Atkin, Who gave dissenting judgement in Liversidge Vs Anderson - picture courtesy Wikipedia
The House of Lords had decided Liversidge Vs Anderson 1941 (3) AllER 338 fifty years ago. It should have been lost in the heap of law reports. Instead of that, it went on to become the most talked about case of the century. It was not because any fundamental interpretation of the law was involved, or because of the personalities involved or even for its result. It was for few paragraphs of the lone dissenting judgement of Lord Atkin1 that created history. Over time, the three paragraphs have become part of every book on human rights and liberty.
Liversidge was detained under Defence Regulation 18-B, which provided that
‘...if the secretary of state has reasonable cause to believe any person to be of hostile origin or association 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.’
Liversidge filed a case for false imprisonment. Anderson, the then Home Secretary set up his own order in defence. It did not disclose the grounds on which it was made but merely asserted that he (Anderson) had reasonable cause for the arrest. Liversidge applied for supply of the grounds, which was refused by the courts below. The matter thus came to the House of Lords.
It was good that the grounds were not supplied and the court did not hold it otherwise, because among the other grounds, Liversidge was suspected of having committed commercial frauds; and was the son of a Rabbi.
The fate of the appeal hinged upon the interpretation of the words reasonable cause to believe. It was substituted for the words, if satisfied. Should it be interpreted to mean that if a Secretary of State thinks that he has reasonable cause to believe or should it just be given its natural meaning? Should satisfaction be subjective and Liversidge be denied knowledge of the grounds?
To be fair to the majority, one must say that the appeal was argued in September 1941. It was the lowest point in the Second World War: The Balkans and Crete had been overrun; the British summer offensive in the Western desert had failed, the invasion of Russia had carried the Germans close to Leningrad and Moscow; the Japanese menaced the Malayan Peninsula and Singapore; and the United States was yet to join the war. It was a judgement of those times. And at that time Lord Atkin dissented. It was these paragraphs that made history.
'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 England, amidst country 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 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 acceptability 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 upon 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. ...
I know of only one authority which might justify the suggested method of construction. ‘When I use a word’ Humpty Dumpty said in rather 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 different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master that's all”… [the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’, I am of the opinion that they can not , and the case should be decided accordingly.'
The judgement has been described as passionate, almost wildly rhetorical. It certainly did not win him any friends amongst his colleagues. The then Lord Chancellor Simon had read the judgements in advance, and wrote a private friendly note, requesting Lord Atkin to delete the reference to Alice and Humpty Dumpty. He felt it ridiculed his colleagues and lowered the dignity of the court. Lord Atkin politely but firmly refused.
The appeal was presided over by Justice Maugham, who himself apparently did not like the dissent … for two days later he published a letter in The Times entitled ‘War and Habeas Corpus’, where he criticised Atkin for the judgement- something that had never happened before or since. Atkin did not answer either in print or in private. The article caused questions to be raised in the House of Lords whether judges should criticise each other through the press.
Justice Simon and Justice Maugham were not the only judges upset over the dissenting judgement. Justice Dovecotes the then Chief Justice was upset by the reference to the ‘…attitude of the judges … who are more executive minded than the executive.’ Atkin explained that
‘It is neither criticism of the judges generally nor imputation of subservience to the executive.’
Atkin had held that satisfaction had to be objective, a view which has been justified not only by C.K. Allen in Law and Order and in Wade's Administrative Law, but also by later decisions in England Nakkuda Ali Vs Jayaratne 1951 AC 66; R Vs Brixton Prison Governor (1969) 2 AllER 347; Registrar of Trading Vs. WH Smith (1969) AllER 1065. In ITC Vs. Rossminster Iad 1980 (I) AllER 80. Lord Diplock said,
'I think the time has come to acknowledge openly that the majority of this House in Liversidge Vs. Anderson was expediently and at that time perhaps excusably wrong; and the dissenting speech by Lord Atkin was right'.
50 years later Atkin's dissenting judgement continues to be relevant. C.K. Allen in a letter to Atkin, at that time remarked. ‘Such cries in the wilderness have strong and loud echoes.’ Well, we still hear them.
1 There is an excellent biography of Lord Atkin by the same name written by Geoffrey Lewis; Published by Butterworths
Tags: Liversidge Vs Anderson, Habeas Corpus, Lord Atkin,
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