Public Law - Liversidge v Anderson PDF

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Public law – Liversidge and Anderson Liversidge v Anderson (1942) The home secretary had the power to inter people during the second world war if there was reasoning o Reg 18n defence regulations 1939 o “If the Home Secretary has reasonable cause to believe any person to be of hostile origins or association … he may make an order against that person directing that he be detained”  The home secretary interred a Jewish man during WWII  The wording used in this legislation is very precise o Didn’t say if the home secretary “believed” or that they may make an order that any person may be detained or that they can do what they want to  This was a very specific case of “reasonable belief” Liversidge was arrested and he appealed against the arrest o Argument on behalf of the home secretary was that he made the order under reasonable cause and the order stands  “I will not answer questions to the court because it was made under the law” o A majority of the House of Lords agreed with this and did not ask for evidence or reasoning behind his “reasonable belief” The Home Secretary could use reg. 18b to imprison anyone he thought was of hostile origins o He did not need to offer the court any evidence to show that his belief was reasonable o He could imprison anyone at all o He did not have to say why  And anyone who was detained was wasting her time coming to the courts to challenge the adequacy of the Home Secretary's belief  This is a somewhat radical statement as it is a judicial abdication of responsibility  The majority were saying that it really is for the executive to do whatever they want Lord Wright: "All the word 'reasonable', then, means is that the minister must not lightly or arbitrarily invade the liberty of the subject. He must be reasonably satisfied before he acts, but it is still his decision, and not the decision of anyone else....No outsider's decision is invoked, nor is the issue within the competence of any court". o Washing his hands and saying the obligation is on the minister and ask them to act reasonably but will not question or force him to demonstrate it o Lord Atkin wrote the dissenting judgement and now he is seen as having spoken the truth Lord Atkin thought if Parliament said 'reasonable cause to believe', it intended that there be SOME plausible evidence on which that view was based. o If legislators had intended to give the Home Secretary an arbitrary power, they would simply have said 'if the Home Secretary believes'. 

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Parliament when it stated it meant that there was tangible evidence to produce to the court, if they had intended to just grant the power, they would have said believe, not reasonable belief o The job of a judge is to question things  They don’t need to prove to a high degree, but still prove something

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Outcomes: Certainty of Law, not discretion, under the rule of law In the above case, this was somewhat on discretion, not law You can’t lock someone up just on the basis that the Executive says its ok The Executive have to make their case, by showing evidence, before you can deprive a person of their liberty o Atkin strongly disagreed with his fellow judges AND  He ridiculed the Home Secretary’s argument o He also used the humpty dumpty analogy: "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 different things". "The question is", said Humpty Dumpty, "which is to be master - that's all". – he also quoted Cicero – said how in a national emergency, we still need to have a role of law o o o o...