Liversidge v. Anderson
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Liversidge v. Anderson, [1942] A.C. 206 is a famous English legal case which concerned the relationship between the courts and the state, and in particular the assistance which the judiciary should give to the executive in times of emergency. It concerns civil liberties and the separation of powers. Both the majority and dissenting judgements 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.
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[edit] Background
Emergency powers in Regulation 18B of the Defence (General) Regulations 1939 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. The case reached the House of Lords Judicial Committee, 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?[1]
[edit] Majority judgements
The majority of the Law Lords held that the legislation should be interpreted so as to make effective in the way 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 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.[1]
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.[2]
[edit] Dissenting judgement
The case is most famous for the dissenting speech of Lord Atkin, 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:
| 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. |
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.[2]
[edit] Aftermath
The potential power of this dissenting judgement was clearly recognised even before it was published. The Lord Chancellor, 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".
[edit] Commonwealth countries
In the Commonwealth, many jurisdictions, particularly in the Carribean, have opted to follow Lord Atkin's judgement as well. In A-G of St. Christopher, Nevis and Anguilla v. Reynolds, the Privy Council even went further than Lord Atkin's judgement 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..."[2] 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.[3]
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 Prvisions) 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.[4] 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.[5]
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.[6] 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".[5]
[edit] Notes and references
- ^ a b Yatim, Rais (1995). Freedom Under Executive Power in Malaysia: A Study of Executive Supremacy, p. 267. Endowment Publications. ISBN 983-99984-0-4.
- ^ a b c Yatim, p. 268.
- ^ Yatim, p. 271.
- ^ Yatim, pp. 274–275.
- ^ a b Yatim, pp. 276–277.
- ^ Yatim, p. 275.
[edit] Other references
- O.Hood Phillips and Jackson, Constitutional and Administrative Law
- de Smith, Woolf & Jowell, Judicial Review of Administrative Action
- Henston Lives of the Lord Chancellors, 1940-70 (1987) at 59
- Note by Christopher Barclay, House of Commons Library - Legal Challenges to Emergency Powers
<http://www.parliament.the-stationery-office.co.uk/pa/jt200203/jtselect/jtdcc/184/18427.htm.
