Liversidge v Anderson is a case that concerns the relationship between the judiciary and the executive It is a landmark administrative case highlighting the extent of powers which the executive possesses in regard to the liberty of citizens The main issue is in regards to regulation 18B of the Defence General Regulations Act 1939 especially how the wording of the Act was interpreted by the courts In this presentation I will look at whether the judiciary had an obligation to stand against the executive the rule of law the separation of powers and whether the case has had an impact on cases in the future The facts of the case are relatively simple Regulation 18B of the Defence Regulation Act 1939 stated that 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 Mr Liversidge was imprisoned by the Secretary of State under regulation 18B without any evidence The Secretary of State refused to disclose documents relating to Mr Liversidge s arrest as they were confidential and of national security In the House of Lords the majority judgment held that the detention was lawful due to how the Act could be interpreted However the fifth judge in the case Lord Atkin disagreed and gave a dissenting judgment One of the main issues in Liversidge v Anderson is the interpretation of the phrase if the Secretary of State has reasonable cause to believe It needed to be established whether this statement was subject to an objective or subjective standard
It was interpreted by the majority that this meant the secretary of state thinks that he has reasonable cause to believe The majority believed their interpretation was correct by reference to the Bill of Rights Act 1939 in which they ascertain that the language shows that beyond a doubt the defence regulation may be made to deprive a subject whose detention appears beneficial in the interests of public safety Henry Heuzenroeder in response to Francis Bennion s letter titled defending Liversidge v Anderson commented that rather than reading the words to preserve personal liberty they were read up to the detriment of liberty Lord Macmillan stated if the Secretary of State acted in good faith he need not disclose the basis for the decision nor were his actions justiciable in a court of law However the principle of the rule of law argues that laws should govern a nation as opposed to it being governed by decisions of individual government officials as is the case here Lord Atkin s use of the literary Humpty Dumpty reference highlights how the courts had taken the interpretation to beyond its natural construction He argues that if a man has does not mean if a man thinks he has This means having reasonable grounds is not the same as thinking you have reasonable grounds Lord Atkin issued further criticism by accusing the judiciary of being more executive minded than the executive He believed it was the responsibility of the judiciary to ensure that the executive acted within the powers that the Act laid out
Therefore by adopting such an extreme and illiberal meaning of the regulation giving the secretary of state the ability to take peoples liberty without having to justify himself the judiciary had failed in their duty to stand between the subject and any attempted encroachments on his liberty by the executive Lord Atkin is supported by the theorist Dicey one of Dicey's three principles is that no man is above the law and everyone is equal before the law This includes the secretary of state Dicey's theories on the rule of law have been supported by others For example Friedrich von Hayek agrees that all citizens must have access to an independent judiciary before they can challenge the legality of government action Joseph Raz furthered these principles he expressed the need for judicial independence to enable them to come to decisions in an unbiased manner and more specifically to this case judicial independence would have allowed the courts to have insisted the authority acted within the terms of the statute One of the key roles of the judiciary is to ensure that the executive does not abuse the power bestowed upon them The system of the separation of powers divides the tasks of the state into three branches these are the legislative executive and the judiciary This theoretically should ensure that no authority should have excessive power However in this case it appears that once it was established that it was matter of national security in a time of war the role of the judiciary was dismissed The original judgement in Liversidge v Anderson has gradually faded out and the dissenting judgement from Lord Atkin has been accepted in more recent times The courts have taken this approach as the decision was reached in a time of war
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