Liversidge v Anderson

Viscount MaucHam. My Lords, by this
appeal the appellant, so far as form is concerned, is seeking
merely to have certain particulars from the defendants, the
present Secretary of State for Home Affairs and his pre-
decessor in that office, of their defence in an action of false
imprisonment. The learned master, the judge in chambers
(Tucker J.), and the Court of Appeal (MacKinnon, Luxmoore,
and du Parcq L.JJ.) have all held that the appellant is not

(1) [1920] 3 K. B. 72.

A.C. AND PRIVY COUNCIL.

entitled to any of the particulars he claims. In such a case
this House would not, generally speaking, entertain an appeal,
but the circumstances are exceptional. The real object of
the application is to raise at this early stage the vital question
as to what onus, if any, lies on the respondents as defendants
in the action in the circumstances of the case. The appellant
is a person who was detained by an order made by Sir John
Anderson as Home Secretary on May 26, 1940, under reg. 18B
of the Defence (General) Regulations, 1939. The detention
has been continued by the present Home Secretary. The
validity of that detention has been raised in the action in
which the appellant claims damages for false imprisonment,
and consequential relief. Such an action used to be described
as an action for trespass vi et armis. The general rule of law
in these cases is well stated by Abbot C.J., delivering the
judgment of the court in Doswell v. Impey (1). If, he says,
persons having a limited authority "do any act beyond the
"limit of their authority, they thereby subject themselves to
"an action of trespass: but if the act done be within the limit
"of their authority, although it may be done through an
"erroneous or mistaken judgment, they are not thereby liable
"to such action."" The respondents rely on the order for the

211

H. L. (E.)

194i

LIVERSIDGE
Uv.
SIR JOHN
ANDERSON.

Viscount
Maugham.

detention of the appellant above referred to. If itis valid, the |

action' must clearly fail. The appellant, accordingly, seeks to

throw on the respondents the burden of justifying the order. It
will be convenient shortly to state the pleadings to show how, ©

as a matter of pleading, the question of particulars arises.
The appellant (plaintiff) claimed by his writ dated March 14,
1941, a declaration that his detention in Brixton prison was
and is unlawful, and damages for false imprisonment. Para-
graph 2 of the statement of claim alleges that the first defendant
was, and the second defendant now is, His Majesty's Home
Secretary. Paragraphs 3, 4 and 6 of the statement of claim are
as follows: "(3.) By a document dated May 26, 1940, and
'expressed to be a detention order under reg. 18B of the
"Defence (General) Regulations, 1939, the first-named defend-
"ant ordered and directed that the plaintiff be detained.

(1) (1823) 1 B. & C. 163, 169.
3 Pez

212

H. L. (E.)

1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Viscount
Maugham.

HOUSE OF LORDS [1942]

"(4.) In consequence and by reason of the said order and
"direction the plaintiff was on or about May 29, 1940, arrested,
"and he has since been and still is detained and imprisoned at
'""H.M. Prison at Brixton. (6.) In the premises the defendants
"have and each of them has caused and procured the unlawful
"detention and imprisonment of the plaintiff and the second-
"named defendant continues and intends to continue the
"same." Paragraph 3 of the defence is: "The defendants
"admit that the first-named defendant ordered that the
"plaintiff should be detained under reg. 18B of the Defence
"(General) Regulations, 1939,' and para. 5 of the defence is:
"None of the allegations contained in para. 6 of the statement of
"claim is admitted. Save as above expressly admitted, none of
"the allegations contained in thestatement ofclaimis admitted."

It is desirable to state, so far as relevant, the Act of Parlia-
ment and the regulations under which the order for detention
(or the document purporting to be such an order) was made.
By s.1, sub-s. 1, of the Emergency Powers (Defence) Act,
1939, it was provided that His Majesty by Order in Council
"may make such regulations . . . . as appear to him to be
"necessary or expedient for securing the public safety, the
"defence of the realm, the maintenance of public order and the
"efficient prosecution of any war in which His Majesty may
"be engaged, and for maintaining supplies and_ services
"essential to the life of the community." By sub-s. 2 it was
enacted that '"'without prejudice to the generality of the
"powers conferred by the preceding sub-section, Defence
"Regulations may, so far as appears to His Majesty in Council
"to be necessary or expedient for any of the purposes mentioned
"in that sub-section " make provision for a number of impor-
tant purposes including regulations "'for the detention of
"persons whose detention appears to the Secretary of State
"to be expedient in the interests of the public safety or the
"defence of the realm." The regulations authorized by the
Act are clearly of the widest possible character and may
affect not only the liberty but also the property of all subjects,
with a certain limit as regards authorizing conscription and as
to extending the powers of courts-martial (sub-s. 5). The

A. C. AND PRIVY COUNCIL.

Emergency Powers (Defence) Act, 1940, gives even greater
powers to the Crown. It was under the provisions of the
Act of 1939 that the Defence (General) Regulations, 1939,
were made, and they have been from time to time amended.

Regulation 18B of the Defence (General) Regulations, 1939,
referred to in para. 3 of the statement of claim, and in para. 3
of the defence, is in the following terms: "If the Secretary
"of State has reasonable cause to believe any person to be of
"hostile origin or associations or to have been recently con-
"cerned 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." That is the material sub-section in
the present case.

The regulation continues thus: ''(1A.) If the Secretary of
"State has reasonable cause to believe any person to have been
"or to be a member of, or to have been or to be active in the
"furtherance of the objects of, any such organization as is
"hereinafter mentioned, and that it is necessary to exercise
"control over him, he may make an order against that person
"directing that he be detained. The organizations hereinbefore
"referred to are any organization as respects which the
"Secretary of State is satisfied that either (a) the organization
"is subject to foreign influence or control, or (0) the persons
"in control of the organization have or have had associations
"with persons concerned in the government of, or sympathies
"with the system of government of, any Power with which
"His Majesty is at war, and in either case that there is danger
'of the utilization of the organization for purposes prejudicial
"to the public safety, the defence of the realm, the main-
"tenance of public order, the efficient prosecution of any war
"in which His Majesty may be engaged, or the maintenance of
"supplies or services essential to the life of the community.

"'(2.) At any time after an order has been made against any
"person under this regulation, the Secretary of State may
"direct that the operation of the order be suspended subject
"to such conditions: (a) prohibiting or restricting the

213 |

H. L. (E.)

IQ41

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Viscount
Maugham.

214 HOUSE OF LORDS [1942}

H.L.(E.) "possession or use by that person of any specified articles ;
1941 ''(b) imposing upon him such restrictions as may be specified
Liversipce "in the direction in respect of his employment or business, in
Ree oak "respect of the place of his residence, and in respect of his
ANDERSON. "'association or communication with other persons; (c)
So "requiring him to notify his movements in such manner, at
— "such times, and to such authority or person as may be so
"specified ; (d) prohibiting him from travelling except in
"accordance with permission given to him by such authority
"or person as may be so specified, as the Secretary of State
"thinks fit ; and the Secretary of State may revoke any such
"direction if he is satisfied that the person against whom the
"'order was made has failed to observe any condition so imposed,
"or that the operation of the order can no longer remain
"suspended without detriment to the public safety or the
"defence of the realm.
"(3.) For the purposes of this regulation, there shall be one
"or more advisory committees consisting of persons appointed
"by the Secretary of State ; and any person aggrieved by the
"making of an order against him, by a refusal of the Secretary
"of State to suspend the operation of such an order, by any
"condition attached to a direction given by the Secretary
"of State or by the revocation of any such direction, under the
"powers conferred by this regulation, may make his objections
"to such a committee.
""(4.) It shall be the duty of the Secretary of State to secure
"that any person against whom an order is made under this
"regulation shall be afforded the earliest practicable oppor-
"tunity of making to the Secretary of State representations in
"writing with respect thereto and that he shall be informed of
"his right, whether or not such representations are made, tomake
"his objections to such an advisory committee as aforesaid.
"(5.) Any meeting of an advisory committee held to consider
"such objections as aforesaid shall be presided over by a
"chairman nominated by the Secretary of State and it shall be
"the duty of the chairman to inform the objector of the
"grounds on which the order has been made against him and to
"furnish him with such particulars as are in the opinion of

A. C. AND PRIVY COUNCIL.

"the chairman sufficient to enable him to present his case.
"(6.) The Secretary of State shall make a report to Parlia-
"ment at least once in every month as to the action taken
"under this regulation (including the number of persons
"detained under orders made thereunder) and as to the
"number of cases, if any, in which he has declined to follow
"the advice of any such advisory committee as aforesaid.

"(7.) If any person fails to comply with a condition attached
"to a direction given by the Secretary of State under para. (2.)
"of this regulation that person shall, whether or not the
"direction is revoked in consequence of the failure, be guilty
"of an offence against this regulation.

"(8.) Any person detained in pursuance of this regulation
"shall be deemed to be in lawful custody and shall be detained
"In such place as may be authorized by the Secretary of State
"and in accordance with instructions issued by him."

On April 29, 1941, the appellant applied to the master in
chambers (inter alia) for the following particulars, namely,
particulars in, writing of the allegation in para. 3 of their
-defence that the first-named defendant ordered that the
plaintiff should be detained under reg. 18B of the Defence
(General) Regulations, 1939: (a) of the grounds upon which
the first-named defendant had reasonable cause to believe
the plaintiff to be a person of hostile associations ; and (0) of
the grounds upon which the first-named defendant had reason-
able cause to believe that by reason of such hostile associations
it was necessary to exercise control over the plaintiff. On
May 8, 1941, Master Moseley heard the application and refused
to make any order thereon. The appellant appealed from
the said refusal and on May 23, 1941, Tucker J., sitting as
judge in chambers, dismissed the appeal, but gave the appellant
leave to appeal to the Court of Appeal. The appellant
appealed to the Court of Appeal and the appeal was heard
before MacKinnon, Luxmoore and du Parceq L.JJ. on June 11
and 12, 1941. The judgment of the court was delivered by
MacKinnon L.J. It was held by the court that on the detention
order being proved or admitted the onus was on the appellant
to prove that the order was invalid. It should be mentioned

215

He ee (BS)
TQ4I
LIVERSIDGE
v

SIR JOHN
ANDERSON.

Viscount
Maugham,

216 HOUSE OF LORDS [1942]

H.L.(E.) that the good faith of the Secretary of State is not challenged.
194t The judgment proceeded as follows: '"' Put in another way,
Liversipce ''if the plaintiff admits, or it is proved, that the plaintiff was
as oak "detained by an order purporting or expressed to be issued
ANDERSON. '"'ynder the regulation, and duly signed as such, the burden
eoet "is on the plaintiff, if he is to claim damages for false imprison-
"ment, to give evidence showing that the order was invalid.
"As the case proceeds at the hearing, as often happens, the
"onus of proof may be shifted. If the plaintiff adduces
"evidence which goes to show the invalidity of the order,
"that might happen. If, upon that happening, the defendants
"produced evidence which was embarrassing to the plaintiff,
"by way of surprise or novelty, the judge would no doubt
"protect him by way of adjournment. Conceivably, in a
"proper case, the judge might at that stage make some order
"by way of particulars of the allegations of the defendants.
"These, however, are but hypothetical considerations as to
"possible developments at a later stage of the litigation.
"At this stage we are quite clear that the plaintiff is wrong
"in his proposition as to the burden of proof inherently resting
"upon himself and upon the defendants respectively." On
this view it naturally followed that the appellant at the present
stage was not entitled to any of the particulars he is claiming,
and the appeal was dismissed. Having regard to the great
importance of the questions arising out of orders for detention
under reg. 18B of the Defence (General) Regulations, the
appellant was given leave to appeal to your Lordships' House

on July 21, 1941.

The Court of Appeal in October, 1940, had had to consider
the true meaning of reg. 18B, para. (I.), in an analogous case
entitled Rex v. Secretary of State for Home Affairs. Ex parte
Lees (1). That was an application for a writ of habeas corpus
by Mr. Lees who had been detained by an order of the Home
Secretary, Sir John Anderson, under reg. 18B. Sir John
Anderson in that case had made an affidavit stating that he
had received and considered reports and information from
persons in responsible positions who were experienced in

(1) [1941] 1 K. B. 72.

A. C. AND PRIVY COUNCIL.

investigating matters of the kind under consideration and
whose duty it was to report to him confidentially, that he had
studied the reports and come to the conclusion that there were
clear grounds for believing, and he did in fact believe, that
Mr. Lees was a member of such an organization (stating the
effect of the affidavit shortly) as is defined in reg. 18B (1A).
The Court of Appeal then decided that the court could not act
as a court of appeal from the decision of the Secretary of State
and that his affidavit proved to the satisfaction of the court
that he had reasonable cause to believe, and did honestly
believe, the matters in question, and, that being so, the order
was validly issued. As I understand the judgment in the
Lees case it negatived the idea that the court had any power
to inquire into the grounds for the belief of the Secretary of
State (his good faith not being impugned) or to consider
whether there were grounds on which he could reasonably
arrive at his belief.

The Court of Appeal in the present case was, therefore,
precluded by the previous decision from considering the main
point argued before your Lordships, namely, the question
whether there were in fact reasonable grounds for the beliefs
(a) that the appellant was a person of hostile associations and
(b) that by reason thereof it was necessary to exercise control
over him. In this case, however, the Secretary of State who
made the order and his successor in office have not made
any affidavit in the action, and the appellant, therefore, is
entitled to contend, and does contend, that the mere pro-
duction of an order signed by the Secretary of State is not a
sufficient prima facie defence to the action of false imprison-
ment and that an onus lies on the respondents to give evidence
at the trial to prove that Sir John Anderson had reasonable
grounds for the belief recited in the order. That order
(following the language of the regulation) is in the following
terms :

" DEFENCE (GENERAL) REGULATIONS, 1939.
" DETENTION ORDER.

"" Whereas I have reasonable cause to believe Jack Perlzweig

'alias Robert Liversidge to be a person of hostile associations

217

H. L. (E.)
1941

LIVERSIDGE
Uv.
SIR JOHN
ANDERSON,

Viscount
Maugham,

218 HOUSE OF LORDS [1942]

H.L.(E.) ''and that by reason thereof it is necessary to exercise control
1941 "over him: Now, therefore, I, in pursuance of the power
Liversipcr "conferred on me by reg. 18B of the Defence (General)
' "Regulations, 1939, hereby make the following order: I

SIR Joun
ANDERSON. '' direct that the above-mentioned Jack Perlzweig alias Robert
"cope "Liversidge be detained.

" (Signed) John Anderson,
"One of His Majesty's Principal Secretaries of State."

This point as to the evidence is perhaps not directly relevant
on the question of particulars, but it was raised and dealt
with in the Court of Appeal, and both sides have desired your
Lordships to express your opinion on it. I propose, first,
to deal with the important question of the construction of
the words in the regulation, "If the Secretary of State has
"reasonable cause to believe, etc.' that is, the question
whether, as the appellant contends, the words require that
there must be an external fact as to reasonable cause for the
belief, and one, therefore, capable of being challenged in a
court of law, or whether, as the respondents contend, the words,
in the context in which they are found, point simply to the
"4 belief of the Secretary of State founded on his view of there
being reasonable cause for the belief which he entertains.
Secondly, I shall express my opinion on the question (which
strictly speaking would not arise till the trial) whether the
order of the Secretary of State is in the circumstances sufficient
prima facie proof that the Secretary of State has acted lawfully
and that the detention of the appellant was and is accordingly
not illegal.

Before dealing with the construction of the regulation,
it is desirable to consider how the matter should be approached.
The appellant's counsel truly say that the liberty of the
subject is involved. They refer in emphatic terms to Magna
Carta and the Bill of Rights, and they contend that legislation
dealing with the liberty of the subject must be construed,
if possible, in favour of the subject and against the Crown.
Adopting the language of Lord Finlay L.C. in this House
in the case of Rex v. Halliday (1), I hold that the suggested

(1) [1917] A. C. 260, 270,

A. C. AND PRIVY COUNCIL.

A

rule has "no relevance in dealing with an executive measure
"by way of preventing a public danger '' when the safety of the
state isinvolved. The language of the Act of 1939 (above cited)
shows beyond a doubt that Defence Regulations may be
made which must deprive the subject "whose detention
"appears to the Secretary of State to be expedient in the
"interests of the public safety "' of all his liberty of movement
while the regulations remain in force. There can plainly
be no presumption applicable to a regulation made under
this extraordinary power that the liberty of the person in
question will not be interfered with, and equally no presumption
that the detention must not be made to depend (as the terms
of the Act indeed suggest) on the unchallengeable opinion
of the Secretary of State. The legislature obviously proceeds
on the footing that there may be certain persons against
whom no offence is proved nor any charge formulated, but
as regards whom it may be expedient to authorize the Secretary
of State to make an order for detention. The only safeguards,
if they be safeguards, is that detention "'appears to the
"Secretary of State to be expedient in the interests of the
"public safety or the defence of the realm,"' and that he himself
is subject to the control of Parliament. It should be added,
that as in Halliday's case (1), the power with which we are
here concerned is to take preventive measures in the nature
of internment which will last only for a limited time : see s. 11
of the Act. There is no charge against the appellant.

_My Lords, I think we should approach the construction of
reg. I8B of the Defence (General) Regulations without any
general presumption as to its meaning except the universal
presumption, applicable to Orders in Council and other like
instruments, that, if there is a reasonable doubt as to the
meaning of the words used, we should prefer a construction which
will carry into effect the plain intention of those responsible
for the Order in Council rather than one which will defeat that
intention. My Lords, I am not disposed to deny that, in the
absence of acontext, the prima facie meaning of such a phrase as
"if A.B. has reasonable cause to believe'' a certain circumstance

(1) [1917] A. C. 260.

219

H. L. (E.)
1941

om

LIVERSIDGE
v.

SIR JOHN

ANDERSON.

Viscount
Maugham,

220

HOUSE OF LORDS [1942]

f
H.L.(E.) or thing, it should be construed as meaning "if there

1941

—

LIVERSIDGE

U.
SIR JOHN

ANDERSON.

Viscount
Maugham.

——

'is in fact reasonable cause for believing" that thing and if
A.B. believes it. But I am quite unable to take the view
that the words can only have that meaning. It seems to
me reasonably clear that, if the thing to be believed is
something which is essentially one within the knowledge of
A.B. or one for the exercise of his exclusive discretion, the
words might well mean if A.B. acting on what he thinks is
reasonable cause (and, of course, acting in good faith) believes
the thing in question. Poet WS

In the present case there are a number of circumstances
which tend to support the latter conclusion.

First, reg. 18B, paras. (1.) and (1A), alike require the Secretary
of State to have reasonable cause to believe two different
things. Taking the first paragraph, he must, in the first
place, believe the person (a) to be of hostile origin or
associations, or (6) to have been recently concerned in acts
prejudicial to the public safety or the defence of the realm,

or (c) in the preparation or instigation of such acts, or (d) to

have been or to be a member of, or (e) to be active in the
furtherance of the objects of organizations which are carefully
defined by reference to the personal decision of the Home
Secretary. Any one of these various circumstances is sufficient
to satisfy the first fact which the Secretary of State must
believe, and I do not doubt that a court could investi

the question _w. 'whether there_were grounds for a Beale

'man to believe some cat least of those facts if 'they could be

put before-the court. But then he must at the same time
also believe something very different in its nature, namely,
that by reason of the first fact, "it is necessary to exercise
"control over."" the person in question. To my mind this is

so clearly a matter for executive discretion and nothing else

that I cannot myself believe that those responsible for the
Order in Council could have contemplated for a moment
the possibility of the action of the Secretary of State being
subject to the discussion, criticism and control of a judge in
a court of law. If, then, in the present case the second
requisite, as to the grounds on which the Secretary of State

A. C. AND PRIVY COUNCIL. 221

can make his order for detention, is left to his sole discretion H. L. (E.)
without appeal to a court, it necessarily follows that the same —_ro4r
is true as to all the facts which he must have reasonable cause Liversipcr
to believe. ie ae
yom, Secondly, it is admitted that the Home Secretary can act ANDERSON. —
\ on hearsay and is not required to obtain any legal evidence in Viscount *

such a case, and clearly is not required to summon the person ;

whom he proposes to detain and to hear his objections to the

proposed order. Since the Home Secretary is not acting

judicially in such a case, it would be strange if his decision

_ could be questioned in a court of law.
ay Thirdly, and this is of even greater importance, it is obvious

_ that in many cases he will be acting on information of the most

_confidential_ character, which could not be communicated

to the person detained or disclosed in court without the greatest

risk of prejudicing the future efforts of the Secretary of State

in this and like matters for the defence of the realm. A very

little consideration will show that the power of the court

(under s. 6 of the Act) to give directions for the hearing of

proceedings in camera would not prevent confidential matters

from leaking out, since such matters would become known

to the person detained and to a number of other persons. It

seems tome impossible for the court to come to a conclusion

adverse to the opinion of the Secretary of State in such a

matter. It is beyond dispute that he can decline to disclose

the information on which he has acted on the ground that to

do so would be contrary to the public interest, and that this

privilege of the Crown cannot be disputed. It is not ad rem

on the question of construction to say in reply to this argument

that there are cases in which the Secretary of State could

answer the attack on the validity of the order for detention

without raising the point of privilege. It is sufficient to say

that there must be a large number of cases in which the

information on which the Secretary of State is likely to act will

be of a very confidential nature. That must have been plain

to those responsible in advising His Majesty in regard to the

Order in Council, andit constitutes, in my opinion, a very cogent

reason for thinking that the words under discussion cannot

222

H. L, (E.)

mn
i

1941

HOUSE OF LORDS [1942]

be read as meaning that the existence of " reasonable cause "'
is one which may be discussed in a court which has not the

Liversipce power of eliciting the facts which in the opinion of the Secretary

uv.
SIR JOHN
ANDERSON.

Viscount
Maugham.

'

of State amount to " reasonable cause."

Fourthly, it is to be noted that the person who is primarily
entrusted with these most important duties is one of the
principal Secretaries of State, and a member of the government
answerable to Parliament for a proper discharge of his duties.
I do not think he is at all in the same position, as, for example,
a police constable. It is not wholly immaterial to note that
the Secretary of State is provided with one or more advisory
committees (para. (3.) ), andthat he has to report to Parliament
at least once in every month as to the action taken by him
and the orders he has made, and as to the number of cases in
which he has declined to follow the advice of the advisory
committee (para. (6.)). These provisions seem to point to
the fact that the Secretary of State will be answerable to
Parliament in carrying out duties of a very important and
confidential nature. I have heard no explanation of the
circumstance that no express provisions are made in the
regulation as to an appeal from the Secretary of State's decision

/unless it is the fact that no such appeal was intended. It

seems to me that, if-any such appeal had been thought proper,
Mit would have been to a special tribunal with power to inquire
/privately into all the reasons for the Secretary's action, but
Ywithout any obligation to communicate them to the person
'detained. The objections to an appeal in a case of mere
suspicion and in time of war are not far to seek, but, however
that may be, an application to the High Court, with power
to the judge to review the action of the Secretary of State,
seems to be completely inadmissible, and I am unable to see
that the words of the regulation in any way justify the
conclusion that such a procedure was contemplated.

The main argument for the appellant, apart from the
contention as to the principle of construction applicable to
a case where the liberty. of the subject is concerned which I
have already dealt with, is based on the difference of language
used as regards the belief of the Secretary of State in different

A. C. AND PRIVY COUNCIL.

sections of the regulations, and, indeed, in different parts of
reg. 18B. Thus it is pointed out that in several places and in
particular in reg. 18B, para. (1A.), the Secretary of State is
only required to be " satisfied'' of something: see, for
example, regs. 2D and 18A, para. (1.). In these cases it is
conceded that there is no recourse to the court provided, of
course, that the Secretary of State acts in good faith. The
different phrase "has reasonable cause to believe '' points,
it is said, to a different standard and a different meaning.
(For examples see regs. IA, 2C, para. (2.), and 18B.). 'It is
added that the present reg. 18B is not the original regulation,
but a new regulation (see St. R. & O. 1939, No. 1681, bearing
date November 23) replacing the words in the original clause,
which ran thus: "The Secretary of State, if satisfied with
"respect to a particular person, that with a view to preventing
"him acting in any manner prejudicial to the public safety
"or the defence of the realm, it is necessary so to do may "'
(inter alia) "make an order directing that he be detained."
It is apparent that this is an earlier and not very perfect
attempt at the present regulation which entirely supersedes it.

These considerations are not without weight, though three
observations fallto be made. The first is that Orders in Council
making regulations pursuant to an Act of Parliament do not
in general receive the same attention and scrutiny as statutes,
and it is important to remember that, though they may be
annulled, they cannot be amended in either House (see s. 8
of the Act), so that errors in language, if detected, cannot be
corrected. There are, of course, no three readings and no
committee stage in either House. In my opinion, it would be
a mistake to attribute the same force to an alteration of
language in an amending Order in Council as in an amending
statute. The second observation is that even in statutes
changes of words often occur without a change of meaning.
The third observation is that the words "'has reasonable cause
"to believe "' are not without a probable meaning. It may well
have been thought desirable to draw the attention of the
Secretary of State to the fact that in certain cases, and, in
particular, in cases in which he was considering the serious

223

H. L. (E.)
194r

LIVERSIDGE
Vv.
SiR JOHN
ANDERSON:

Viscount
Maugham.

224

H. L. (E.)
1941

—
LIVERSIDGE
U:

SIR JOHN
ANDERSON.

Viscount
Maugham.

HOUSE OF LORDS [1942]

step of depriving a person of his liberty for an uncertain period,
he must himself have considered whether there was reasonable
cause for forming the belief which would justify his action. On
the other hand, I suppose he might be " satisfied '' of some
fact by the report of one of his subordinates in whom he placed
complete confidence.

Apart, however, from these considerations, I am of opinion
that the arguments above enumerated in favour of the
construction for which the Attorney-General contends must
greatly outweigh any arguments which your Lordships have
heard on the other side and that his construction must prevail.
The result is that there is no preliminary question of fact
which can be submitted to the courts and that in effect there
is no appeal from the decision of the Secretary of State in these
matters provided only that he acts in good faith. It follows,
and it is not disputed by the appellant's counsel, that on this
view the application for particulars must fail.

I can deal much more shortly with the question whether
an onus is thrown on the first respondent, the Secretary of
State who made the order for detention, to give evidence to
show that he had reasonable cause to believe the appellant
to be a person of hostile associations and that by reason thereof
it was necessary to exercise control over him. The order on
its face purports to be made under the regulation and it states
that the Secretary of State had reasonable cause to believe
the facts in question. In my opinion, the well known
presumption omnia esse rite acta applies to this order, and,
accordingly, assuming the order to be proved or admitted,
it must be taken prima facie, that is until the contrary is
proved, to have been properly made and that the requisite
as to the belief of the Secretary of State was complied with.
It will be noted that on the view I have expressed as to the
construction of the regulation it is the personal belief of the
Secretary of State that is in question, and that, if the appellant's
contention on this point were correct, the same question would
arise in the numerous cases where an executive order depends —
on the Secretary of State or some other public officer being
"satisfied '' of some fact or circumstance. It has never,

A. C. AND PRIVY COUNCIL.

I think, been suggested in such cases that the Secretary of
State or public officer must prove that he was so " satisfied "
when he made the order. Just as the fact that the act of
the Secretary of State acting in a public office is prima facie
evidence that he has been duly appointed to his office, so his
compliance with the provision of the statute or the Order in
-Council under which he purported to act must be presumed
unless the contrary is proved. There are scores of instances of
such presumptions to be found in the books, none I think
precisely in point, but many in which the principle was less
necessary on the score of public convenience than the present.
If an instance is required it may be found in the rule that where
local authorities have made a rate under an Act, compliance
with the formalities required by that Act will be presumed
until the contrary is shown: Reg. v. Reynolds (1).

I shall not take up your Lordships' time by dealing with
the various recent cases relating to these detention orders
which were quite properly cited to your Lordships, for the
reason that they have all been considered and examined at
length by Scott L.J. and Goddard L.J. in the recent case of
Rex v. Secretary of State for Home Affairs. Ex parte Greene (2),
and I could not usefully add anything to what they have said.

In my gpinion, the present appeal should be dismissed with
costs and I move your Lordships accordingly.

n& pisse NTIWG -

Lorp ATKIN. My Lords, I have prepared an opinion
which is applicable both to this case and to that of Greene v.
Secretary of State for Home Affairs (3). |

These cases raise the issue as to the nature and limits of
the authority of the Secretary of State to make orders that
persons be detained under reg. 18B of the Defence (General)
Regulations, 1939. The matter is one of great importance
both because the power to make orders is necessary for the
defence of the realm, and because the liberty of the subject
is seriously infringed, for the order does not purport to be
made for the commission of an offence against the criminal

(t) [1893] 2 QO. Bazs. (3) Post, p. 284.
(2) [1942] 1 K. B. 87.
A. C. 1942. 3 Q

225,

H. L. (E.)
1941

LIVERSIDGE
Uv.
SIR JOHN
ANDERSON.

Viscount
Maugham,

—_-

226

H. L. (E,)
1941

HOUSE OF LORDS [1942]

law, It is made by an executive minister and not by any kind
of judicial officer, it is not made after any inquiry as to facts

Liversioce to which the subject is party, it cannot be reversed on any

U.
SIR JOHN

appeal, and there is no limit to the period for which the

ANDERSON. detention may last. The material words of the regulation
are as follows: "If the Secretary of State has reasonable—

Lord Atkin.

"cause to believe any person to be of hostile origin or
"associations 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.'"' They are
simple words and as it appears to me obviously give only

/ a conditional authority to the minister to detain any person

without trial, the condition being that he has reasonable
cause for the belief which leads to the detention order. The
meaning, however, which for the first time was adopted by
the Court of Appeal in the Gveene case and appears to have
found favour with some of your Lordships is that there is
no condition, for the words "if the Secretary of State has
"reasonable cause \ merely mean "'if the Secretary of State

'"thinks that he has reasonable cause. The result is that
eriemianadancaeciciacia TY of State acts
in good faith. If he does that—and who could dispute it or
disputing it prove the opposite ?—the minister has been given
complete discretion whether he should detain a subject or not.

'It is an absolute power which, so far as I know, has never
been given before to the executive, and I shall not apologize
for taking some time to demonstrate that no such power is
in fact given to the minister by the words in 'question.

It is a curious fact that in both cases in the first emergence
of the issues raised no trace of this contention appeared.
In the Liverstdge case the only question raised is in an action
for false imprisonment brought by the appellant. Following
on a defence setting up detention under an order of the
Secretary of State the appellant asked for particulars of the
reasonable cause. The only question raised on the summons
before the judge in chambers was on the onus of proof, and,
as both courts held that the onus was on the appellant to
show that there was no reasonable Cause, the order for

A. C. AND PRIVY COUNCIL. 227

particulars was refused. It is apparent that if at that time H.L. (E,)
the courts had accepted the present construction no question 1941
of onus would have arisen, for no issue as to the actual existence Liversipor
of reasonable cause could arise. In the Greene case the op Tous
application was by summons for a writ of habeas corpus. ANDERSON.
The Divisional Court took the same view of the onus as was Lord Atkin.
adopted in the Liversidge case, and held that in view of the
Secretary of State's affidavit in answer to the appellant's
evidence the court was not satisfied that there had been no
reasonable cause. These matters became irrelevant on the
construction adopted by the Court of Appeal on appeal in
Greene's case. The view there taken was that the words.
"reasonable cause'' cannot "' properly be construed as imposing |
"an objective condition precedent of fact on which a person
"detained would be entitled to challenge the grounds for the
"Secretary of State's honest belief : in short, that the pe eet
"is subjective not objective."' This view of the case at onc
disposed of any objection to the different grounds adopted
by the Divisional Court, and is of such overwhelming
importance compared with the issues raised in both cases up
to that point that I proceed at once to deal with it, reserving
till later what has to be said on the original onus.

It is surely incapable of dispute that the words "if A has
"xX" constitute a condition the essence of which is the
existence of X and the having of it by A. If it is a condition
to a right (including a power) granted to A, whenever the right
comes into dispute the tribunal whatever it may be that is
charged with determining the dispute must ascertain whether
the condition is fulfilled. In some cases the issue is one of
fact, in others of both fact and law, but in all cases the words
indicate an existing something the having of which can be
ascertained. And the words do not mean and cannot mean
"if A thinks that he has." "If A has a broken ankle" does
not mean and cannot mean "if A.thinks that he has a broken
"ankle." "If A has a right of way'? does not mean and
cannot mean "if A thinks that he has a right of way."
" Reasonable cause "' for an action or a belief is just as much a
positive fact capable of determination by a third party as is a

Sey Q2

228 HOUSE OF LORDS [1942]

H.L.(E.) broken ankle or a legal right. If its meaning is the subject of

1941 dispute as to legal rights, then ordinarily the reasonableness

Liversipce of the cause, and even the existence of any cause is in our law

Sn Toul to be determined by the judge and not by the tribunal of fact

ANDERSON. if the functions deciding law and fact are divided. Thus
Lord Atkin. having established, as I hope, that the plain and natural
~ |f meaning of the words "has reasonable cause" 'imports the |
| existence of a fact or state of facts and not the mere cl

by the person challenged that the fact or state of facts existed,

I proceed to show that this meaning of the words has been

accepted in innumerable legal decisions for many generations,

that "reasonable cause'' for a belief when the subject of

legal dispute has been always treated as an objective fact

to be proved by one or other party and to be determined

by the appropriate tribunal. I will go further and show

that until June or July of this year in connection with this

reg. 18B, there never has been any other construction even

submitted to the courts in whatever context the words are

found.

The power of arrest is confided by the common law both
to constables and to private individuals. The constable
has power within his district to arrest a person on reasonable
suspicion of his having committed a felony. The private
individual has power on two conditions: (1.) that a felony
has actually been committed; (2.) that there is reasonable
and probable cause of suspecting the person arrested. In
these cases the grounds for suspicion must be brought before
the court, the onus is on the person who arrested to prove the
reasonable grounds, and the issue whether the cause is
reasonable or not is to be determined by the judge. These
propositions will be found in any elementary text book. I
will refer to authority that the defendant in an action for
false imprisonment based on unlawful ayrest is entitled to
succeed if he pleads and proves that the imprisonment
was legally justifiable: Allen v. Wright (1); that he must
show the cause of suspicion so that the court may judge
of the reasonableness: Mure v. Kaye (2); Stammers

(1) (1838) 8 C. & P. 522. (2) (1811) 4 Taunt. 34.

A. C. AND PRIVY COUNCIL.

v. Yearsley (1); Haynes v. Mewis (2); that a man directing
a constable to act on a suggestion of felony is bound

229

H. L. (E.)
1941

to show probable cause of suspicion: M'Cloughan v. Clayton Liversivce

(3) ; that the plea must show reasonable and probable ground
of suspicion, i.e., facts which raise a reasonable suspicion, not
all the evidence (per Lord Campbell C.J.), and it is for the
court to say whether the facts pleaded show reasonable
cause (per Wightman J.): Broughton v. Jackson (4); that it
is a good plea that the man was arrested on a reasonable
suspicion of felony, but not enough that the suspicion was
bona fide: Sayer v. Lichfold (5); that the civilian
defendant must make out a reasonable ground of suspicion
and that a felony has actually been committed (per Lord
Tenterden C.J.): Beckwith v. Philby (6); and a more recent
affirmation of the same principles in Wallace v. W. H. Smith
and Son, Ld. (7). In all these cases it is obvious that the courts
were dealing with an objective fact to be proved before them
by the defendant, and that their pronouncements would be
nonsense if the inquiry had only been whether the defendant
believed that he had reasonable ground.

So much for the constable's power of arrest at common
law. He and other persons have also been armed with powers
of arrest by statute and in all cases the condition of reasonable
cause for suspicion has been enacted. JI select a list of thirteen
statutes from the valuable work on Police Law by Dr. Moriarty,
the late chief constable of Birmingham, 6th ed., pp. 16, seq.

"Aliens Restriction Acts, 1914 and 1919, Aliens Order, 1920,
"art. Ig: Any person who acts in contravention of this Order
"or is reasonably suspected of having so acted may be arrested
"without warrant by any constable."

"Diseases of Animals Act, 1894, s. 43: A constable may stop
"and detain any person....reasonably suspected of being
"engaged in committing an offence against the Act... ."

"Army Act, 1881, s. 154: On reasonable suspicion a deserter
"or absentee without leave may be arrested without warrant."

(1) (1833) 10 Bing. 35. (5) (1854) 23 L. T. (O. S.) 324.
(2) (1826) 5 L. J.(O.S.) K. B. 47. (6) (1827) 6 B. & C. 635.

(3) (1816) Holt N. P. 478. (7) [1914] 1 K. B. 595.

(4) (1852) 21 L. J.(Q: B.) 265, 267, 268,

vu.
SIR JOHN
ANDERSON.

Lord Atkin.

230 HOUSE OF LORDS [1942]

H. L. (E.) 'Children rand :Young/,Persons* Act,.91933) S/a3ceceny. a
r94t 'constable may arrest without warrant any person... . whom
Liversipce "he has reason to believe has committed an offence if he believes
SIR Easier "such person will abscond." Note the two beliefs, one qualified,

ANDERSON. the other not.
Lord Atkin. "Criminal Law Amendment Act, 1912, s. 1: A constable may
~~ "arrest without warrant any person whom he shall have good
"cause to suspect of having committed... . any offence... ."

"Dangerous Drugs Act, 1920, s. 14: Any constable may
"arrest without warrant any person who .. . . is reasonably
"suspected by the constable of having committed... . an
"offence... . if he has reasonable ground for believing that
"that person will abscond . .*. ."'

Note by contrast ''Firearms Act, 1937, s.6:.... If any
"person refuses to give his name or address or is suspected
"of giving a false name or address or of intending to abscond
"the constable may arrest him without warrant."

"Municipal Corporations Act, 1882, s. 193: A borough
"constable may while on duty arrest any idle or disorderly
"person. . . . whom he has just cause to suspect of intention
"to commit a felony."

"Official Secrets Act, 1911, s.6: Any person... . whois
"reasonably suspected of having committed. . . . an offence,
"may be arrested without warrant."

"Pawnbrokers Act, 1872, s. 34: A pawnbroker may detain
"any person offering in pawn any article which he reasonably
"suspects to have been stolen... ."

"Penal Servitude Act, 1891, s. 2, sub-s. 1: Any constable
"may arrest without warrant any holder of a convict's licence
= . . whom he reasonably suspects of having committed
"any offence."

"Offences against the Person Act, 1861, s. 66, and Malicious
"Damage Act, 1861,s. 57: Any constable may arrest without
"warrant any person whom he shall find loitering in any
"highway .... whom he shall have good cause to suspect of
"having committed or being about to commit any felony
"mentioned in these two Acts."

"Road Traffic Act, 1930, s. 28: A constable may arrest

A. ¢. AND PRIVY COUNCIL.

"without warrant ... . any person reasonably suspected of
"taking ....a motor vehicle without the owner's consent... ."

Can any person doubt that in respect of these powers given
by statute to arrest for suspicion or belief of offences or
intentions to commit offences other than felonies the constable
is in exactly the same position as in respect of his common law
power to arrest on reasonable suspicion of felony, and that there
is an "' objective" issue in case of dispute to be determined
by the court ? No other meaning has ever been suggested.
The words, moreover, do not relate merely to powers of arrest.
In any context in which they are used they give rise to a
similar issue of law or fact cognizable by the court. By the
Criminal Law Amendment Act, 1924, s. 2: "' Reasonable
"cause to believe that a girl was of or above the age of sixteen
"years shall not be a defence to a charge under ss. 5 or 6 of
"the Criminal Law Amendment Act, 1885. Provided that in
"the case of a man of twenty-three years of age or under
"the presence of reasonable cause to believe that the girl
"was over the age of sixteen years shall be a valid defence
"'on the first occasion on which he is charged with an offence
"under this section."' It is well settled that the onus of proving
reasonable cause for belief is on the accused, and that the
section means that the accused had reasonable cause to
believe and did believe. It is so much an " objective "' fact
that in this case reasonable belief is left to the jury. The
subjective test would startle any judge versed in trying crimes.
Similarly by the Age of Marriage Act, 1929, s. 6, which avoids
marriage where either party is under sixteen it is a defence in
proceedings under the Criminal Law Amendment Act for the
accused to prove that he had reasonable cause to believe that
the girl was his wife. A very familiar use of the words is in
actions for malicious prosecution where the plaintiff has to
establish the absence of reasonable or probable cause in the
prosecutor for instituting the prosecution. The relevant facts
known to the prosecutor are, if necessary, determined by
the jury. The judge determines whether they constitute
reasonable cause. The inquiry is '' objective," and the cause of
action, if established with the essential element of malice, exists

231

H. L. (BE)
1941

LIVERSIDGE
Vv.
SIR JOHN
ANDERSON.

Lord Atkin.

232 HOUSE OF LORDS [1942]

H.L.(E.) against any person, rich or poor, powerful or weak, including
I941 any member of the executive, whether Secretary of State or

Liversipce not. A further use of the words is to be found in the Directors

sie Jour Liability Act, 1890, s. 3, sub-s. 1 (a), by which it is provided

ANDERSON. that a director of a company is liable for untrue statements

Lord Atkin. unless he proves that he had reasonable ground to believe that
they were true.

So far, I have sought to establish that the words in question
are not ambiguous, that they have only one plain and natural
meaning, that with that meaning the words have been used
at common law and in numerous statutes, and that whenever
they are used the courts have given them the meaning I suggest,

' ~ have considered that they give rise to a justiciable issue, and
that as to the " subjective '? meaning now contended for by
the Secretary of State it has never at any time occurred to the
minds of counsel or judges that the words are even capable
of meaning anything so fantastic.

I will now proceed to show that in the Defence Regulations
themselves the persons responsible for the framing of them—
may I call them for this purpose the legislators >—have shown
themselves to be fully aware of the true meaning of the words,
have clearly appreciated the difference between having

| reasonable cause to believe and believing without any condition

as to reasonable cause, and have obviously used the words
| "reasonable cause'"' in order to indicate that mere honest

\ belief is not enough. The object is plainly that of the common
law and previous statutes to secure some measure of protection
for the public by providing a condition which, if necessary,
can be examined by the courts. In the first place, when the
decision is left to the minister or other executive authority
without qualification the words omit the reference to reasonable
cause, "If it appears to the Secretary of State that any
"person is concerned "' etc. (order as to publication, reg. 2C);

"A Secretary of State... . if it appears to him necessary
"may ... ." (order as to giving information, reg. 6, para.
(3.) ); "If... . it appears to a Secretary of State to

"
.

"be necessary (order as to protected places, reg. 12,
para. (I.)); so in regs. 14B, 16A, 18A, 21, 40B, 43B.

A. C. AND PRIVY COUNCIL.

The wording is sometimes varied with the same result. "If
"the Secretary of State is satisfied '' (publication in newspaper,
reg. 2D) (articles likely to assist enemy, reg. 4C); " satisfied
"that it is necessary or expedient " (prohibition of balloons,
reg. 7, para. (2.)); '"'satisfied.... that .... it is necessary "'
(restricting movements of persons: reg. 18A); "'satisfied....
"that it is subject to foreign influence'' (organization subject
to foreign influence, 18AA). Similar words occur in regs. 35,
para. (1.), 39B, 39C.

In all these cases it is plain that unlimited discretion is
given to the Secretary of State, assuming as everyone does
that he acts in good faith. Now let us examine the regulations
which import the words '' reasonable cause," some in reference
to the commission of an offence, some to a defence to a charge,
and some to the powers given to executive officers to do acts for
the protection of the state. There are as many as twenty-three
and I take them in numerical order, but it will be obvious to
which class they belong. 1 (1.) (d) : ''No person shall make any

"defence signal . . . . having reasonable cause to believe that
"it is likely to result," etc. 1 (1.) (e): "No person shall do
"any act... . having reasonable cause to believe that it

"is likely to mislead," etc. 1A (a): "No person shall do any
"act having reasonable cause to believe that it will be likely
"to interfere," eter a2Ci(2:) cif It, shall. bea defencewqars.cetd
"prove that the [alleged offender] had no intent to foment
"opposition . . . . and had no reasonable cause to believe
"that the matter published was calculated to foment," etc.
4: "No person shall... . associate with any other person
"having reasonable cause to believe that that other person
"is engaged in assisting the enemy." I only pause here to
inquire why this belief as to association is objective, as it
clearly is, and precisely similar words in reg. 18B used of the
Secretary of State are subjective. 7 (3.): "If any person
"authorized in writing by a Secretary of State... . to act
"under this paragraph has reasonable ground to believe that
"there is in any premises apparatus," etc., he may authorize
a search. 9 (4.): "Whenever any person... . finds dead
aa a... . homing pigeon to which there is attached

Ch rea

233

H.L. (E.)

IQ4I

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Atkin.

234

H. L. (E.)
1941

Se fe
LIVERSIDGE

v.
SIR JOHN
ANDERSON.

Lord Atkin.

HOUSE OF LORDS {1942}

"any article which he has reasonable cause to believe to be
"a means," etc. 11 (3.): ".... the appropriate officer
.... may... . search any article which the traveller has
"with him... . and if the appropriate officer has reasonable
"eround for suspecting that the traveller has about his person
'"'any such article," etc., may search him. Could anything
be clearer than the distinction between the unlimited power
to search an article, and the limited power to search the person ?
This is made plainer by the express and unconditional power
given by 14A (3.): Any constable may search any person
entering a protected place. 18 (3.): "The Secretary of State
"may make provision by order for securing that... . any
"person entering the United Kingdom, may—(a) if there
"is reasonable cause to believe that he has come from any
"territory to which this paragraph applies, or '' (0) if he fails
to satisfy the Secretary of State or [authorized person]
. as to his identity . . . . be detained. Note that the °
detention may be by an authorized person. The distinction
between the conditions in (a) and (0) is obvious. I omit for
the moment reg. 18B itself, though, as I shall point out, there
is a direct indication in the very words of this particular
regulation that the well-established meaning is being applied.
" I8BB (1.): The Secretary of State may by order provide
"for empowering any regional commissioner who has reasonable
"cause to believe any person to be [as specified in reg. 18B]
"to direct the detention of that person pending consideration by
"the Secretary of State." By 18BB (1A.) a Secretary of State
'may similarly empower any regional commissioner who has
"reasonable cause to believe that the recent conduct of any
"person [within a specified area] indicates .... that that person
"is likely to assist the enemy "' to direct detention of that person.
"18D. If any person upon being questioned by a constable
"or a member of His Majesty's Forces . . . . fails to satisfy
"him as to his identity or [purposes] the constable or member
"of His Majesty's Forces may, if he has reasonable ground to
"suspect that that person is about to act in any manner
"prejudicial to the public safety or the defence of the realm
"arrest him without warrant."'

A. C. AND PRIVY COUNCIL.

285

"25 (1.) Where, as respects any premises, it appears to any H.L. (E,)

" officer of police of a rank not lower than that ofinspector.... 1041
"that by reason of the fact . . . . (d) that there is reasonable Liversipce

"ground for believing that a source of danger exists on the g., Tost
"premises by reason of the presence thereon of unexploded ANDERson.

"ammunition," the inspector may take steps, etc. '"' (2.) Any lord Atkin.
'person authorized by a Secretary of State... . if satisfied
"that .... the chattel is contaminated by any lethal gas,

"etc.," may take steps including destruction. Note that

the limitation as to reasonable cause in respect of premises is
not imposed in the case of chattels.

Now I come to a regulation which uses the words reasonable
cause, and is clearly subjective.

By 42C (1.) a chief officer of police if authorized by the
Secretary of State "'may, if he is satisfied in the case of any
"premises in his district that there is reasonable cause to believe
"that '? premises are unlawfully used may close them. By
42C (2.) "any person aggrieved may appeal to a court of
"summary jurisdiction and the court shall, if it is satisfied
"by the appellant that there is no reasonable cause to believe
"the before-mentioned condition, revoke the order." By
42C (3.): "Any constable authorized .... by the chief
"officer of police ....may.... search any premises
i . which the chief officer of police has reasonable grounds
"for suspecting to be premises subject to the regulation."
The difference between (I.) and (3.) is obvious.

""56A. Control of Building Operations. (4.) It shall be
'"'a defence for a person... . to prove that... . he had
"reasonable ground for believing that the cost . . . . would
"not exceed £500."

''79. Whenever any person finds an article as to which he
"has reasonable cause to believe that it has been lost or
"abandoned "' he shall deliver it to a member of His Majesty's
Forces or a constable.

"88A (1.): Ifajustice of the peace is satisfied by information
"on oath that there is reasonable ground for suspecting
"Tan offence] he may grant a search warrant. (2.) A person
'authorized may search every person... . whom he has

236

LU. L. (E.)
IQ41

oa
LIVERSIDGE
v.
Sir JOuUN
ANDERSON.

Lord Atkin.

HOUSE OF LORDS [1942]

"reasonable ground to believe to have recently left... .
"these premises. (3.) If an officer of police of a rank not
"lower than that of superintendent .... has reasonable
'"'eround for suspecting '' an offence and it is impracticable
to get a warrant he may confer a power of search.

"88 B. If... . any constable .... has reasonable ground
"for suspecting that there is to be found in any vehicle . . .
"evidence of the commission of [an offence} he may search the
"vehicle. . ... and may seize any article found therein which
"he has reasonable ground for believing to be evidence... ."'

"88 C. Any constable .... may arrest without warrant
"any person whom he has reasonable ground for suspecting
"to have committed' any of the scheduled offences which
include any offence against any of the regulations.

"go (2.): Any person who, knowing or having reasonable
"cause to believe that another person is guilty of an offence,"
assists that person, "shall be guilty of an offence," etc.

"94 (x.): Any article coming into the possession of an
"executive authority . . . . which the authority has
"reasonable ground for believing to be evidence of the com-
"mission of "' an offence, may be retained.

I would also draw attention to the power to "use such force
"as is reasonably necessary '' to enter premises conferred by
reg. 89, and also by reg. 23AB (e) and 23BA compared with
the power to use such force as shall appear to the person to be
reasonably necessary in 45 (3.), 45C (3.), 45D (3.) and 46 (5.).

I have pointed out that the words in question have a plain
and natural meaning, that that meaning has been invariably
given to them in statements of the common law and in
statutes, that there has been one invariable construction of
them in the courts, and that the Defence Regulations them-
selves clearly recognize that meaning, using different words
where it is intended that the executive officer should have
unqualified discretion. I have not so far called attention
to the wording of reg. 18B itself which, as I venture to think,
establishes within nine lines the distinction which the
appellants rely on. "(zA) If the Secretary of State has
"reasonable cause to believe any person to have been or to be

A. C. AND PRIVY COUNCIL.

"a member of [a certain organization] and that it is necessary
"to exercise control over him, he may make" a detention
order. The organizations in question are defined as " any
"organization as respects which the Secretary of State is
"satisfied that either—(a) the organization is subject to foreign
"influence or control, or (6) the persons in control of the
"organization have or have had associations with persons
"concerned in the government of, or sympathies with the
"system of government of, any Power with which His
"Majesty is at war.' The organizations, therefore, are
impugned if the Secretary of State is satisfied as to their
nature, but the person is not to be detained unless the Secretary
of State has reasonable cause to believe that he is a member.
The contrast is all the more marked when the words of 18B (1.)
"Tf the Secretary of State has reasonable cause to believe any
"person to be of hostile . . . . associations" are compared with
the words of 18B (1A) which I have just quoted and which
in substance say as to (0) if the Secretary of State is satisfied
that the persons in control of the organization have hostile
associations. Why the two different expressions should be
used if they have the same " subjective '' meaning no one was
able to explain. I suggest that the obvious intention was to
give a safeguard to the individual against arbitrary imprison-
ment. Finally, if all these considerations failed, if there were
a certain ambiguity in the words "has reasonable cause to
"believe '' the question would be conclusively settled by the
fact that the original form of the regulation issued in
September, 1939, gave the Secretary of State the complete
discretion now contended for: '' The Secretary of State if
"satisfied, etc.' But it was withdrawn and published in
November, 1939, in its present form. It is not competent
to us to investigate what political reasons necessitated this
change, but it is at least probable that it was made because
objection had been taken to the arbitrary power and it was
seen that Parliament might intervene. What is certain is
that the legislators intentionally introduced the well known
safeguard by the changed form of words.

If, then, the natural construction of the words indicates

237

Hi. L. (E:)
IQ4I
LIVERSIDGE

v.
SIR JOHN
ANDERSON.

Lord Atkin.

238 HOUSE OF LORDS (1942)

H.L.(E.) an objective condition to the power of the minister to detain,
1941 whose existence must, therefore, in case of dispute be
Liversipce cognizable by a court of law, what room is there for any other
Sm onic construction ? I will deal with the suggested inconvenience
ANDERSON. tg the minister or possible prejudice to the interests of the
Lord Atkin. State later on. I venture to quote the words of the present
Lord Chancellor in Barnard v. Gorman (1), a case turning on
the meaning of the word "offender" in a section of the
Customs Consolidation Act, 1876. "' Our duty in the matter
"is plain. We must not give the statutory words a wider
"meaning merely because on a narrower construction the
"words might leave a loophole for frauds against the revenue.
"Tf on the proper construction of the section that is the result
"it is not for judges to attempt to cure it. That is the business
of Parliament.'"' In that case the words were that " the
"offender may be either detained or proceeded against by
"summons," and the question was whether the word "offender"
necessarily connoted that the person detained had in fact
committed an offence, or included a person who was reasonably
suspected of having committed an offence. Inasmuch as the
very words referred to proceeding by summons which necessarily
involved an investigation into the guilt or not of the person
in question, it was considered by all the members of this House
quite clear that the word was capable of both meanings and
could not have been used in the same sentence in the narrower
meaning for detention and the broader for summons.

The respondents sought to find support in the decision in
Rex v. Halliday (2), in which this House affirmed a decision
of the Court of Appeal and of a Divisional Court of which
I happened to be a member. In that case the regulation
undisputedly gave to a Secretary of State unrestricted power
to detain a suspected person, though only on the recommenda-
tion of an advisory committee presided over by a judge.
The argument for the appellant was that the regulation was
ultra vires because, though the words of the Defence of the
Realm Act under which that regulation was made were plainly
wide enough to enable a regulation to be made giving

(1) [co4n | PACS 382° (2) [r917] A. C. 260.

ce

A. C. AND PRIVY COUNCIL.

unrestricted powers, yet they ought to be read with a limitation
in favour of liberty. Every judge who dealt with the case,
including the noble Lords, refused to limit the natural meaning
of the words, pointing out that a state of war would itself
tend to confine the construction to the plain meaning of the
words and would discourage any attempt to make the words
lean in favour of liberty. What that case has to do with the
present I cannot see. No one doubts that the Emergency
Powers (Defence) Act, 1939, empowers His Majesty in Council
to vest any minister with unlimited power over the person
and property of the subject. The only question is whether
in this regulation His Majesty has done so.

In the present case there is, in the first place, no ambiguity
at all, and, in the second place, even if it were open to a judge
to consider the question of expediency, what are the suggested
grounds which compel him to adopt the hitherto unheard of
"subjective '' construction? It is said that it could never
have been intended to substitute the decision of judges for
the decision of the minister, or, as has been said, to give an
appeal from the minister to the courts. But no one proposes
either a substitution or an appeal. A judge's decision is not
substituted for the constable's on the question of unlawful
arrest, nor,does he sit on appeal from the constable. He has
to bear in mind that the constable's authority is limited and
that he can only arrest on reasonable suspicion, and the judge
has the duty to say whether the conditions of the power are
fulfilled. If there are reasonable grounds, the judge has no
further duty of deciding whether he would have formed the
same belief any more than, if there is reasonable evidetice to go
to a jury, the judge is concerned with whether he would have
come to the same verdict. For instance, the minister may have
reasonable grounds on the information before him for believing
that a person is of " hostile origin."' If so, any ruling by the
courts either in an action for false imprisonment or by way
of habeas corpus is impossible though it should subsequently
be proved beyond doubt that the minister's information was
wrong and that the person was of purely British origin. The
only remedy for such a mistake is to bring objections before

239\\

H. L. (E.)
1941

LIVERSIDGE
v
SIR JOHN
ANDERSON.

Lord Atkin.

240

H. L. (E.)

1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Atkin.

HOUSE OF LORDS [1942]

the advisory committee whose advice is not binding, and to
make representations to the minister himself.

But it is said that the grounds of belief will or may be
confidential matters of public importance and that it is
impossible to suppose that the Secretary of State was intended
to disclose either his grounds or his information to the court.
My Lords, the objection is answered by the very terms of the
regulation itself. By paras. 3, 4 and 5 the detained person
has the right to make objections to an advisory committee,
and it is the duty of the chairman "to inform the objector
"of the grounds on which the order has been made against
"him and to furnish him with such particulars as are in the
"opinion of the chairman sufficient to enable him to present
"his case." These grounds and particulars must, of course,
be furnished to the chairman by the Secretary of State, for
otherwise the chairman has no means of knowledge. What
are these grounds and these particulars but the very facts
constituting the '' reasonable cause'' which on the true
construction might have to be investigated by the court? I
find myself unable to comprehend how it can be compulsory,
as it is, to furnish the objector before the committee with the
grounds and particulars, and yet impossible in the public interest
to furnish the objector with them in court. The supposed

- difficulty is grossly exaggerated, even if it is not a fantasy.

The present case of Gveene illustrates this. On May 22,
1940, he was detained under an order which recited that the
Home Secretary had reasonable cause to believe him to be
a person of hostile associations and that by reason thereof
it was Hecessary to exercise control over him. On July 15,
1940, he was served with a document headed "' Home Office,
"Advisory Committee, 6 Burlington Gardens, W.1. Reasons
"for order under Defence Regulation r8B in the case of
"Benjamin Greene. The order under Defence Regulation
"18 B was made against you for the following reasons. The
"Secretary of State has reasonable cause to believe that you
"have been recently concerned in acts prejudicial to the public
"safety and the defence of the realm and in the preparation and
"instigation of such acts and that it is necessary to exercise

A. C. AND PRIVY COUNCIL.

"control over you. Particulars." Then follow six paragraphs
of particulars referring to his. being concerned in the manage-
ment and control of two named organizations and of the
nature of speeches and writings of his, and stating that he was
privy to the activities of a named person in the publication of
pro-German propaganda in a named periodical, that he was
subsequently to the outbreak of war communicating with persons
in Germany concerned in the government of Germany, that
he was desirous of establishing a national socialist regime in
Great Britain with the assistance, if received, of German
armed forces, that he freely associated with persons of
German nationality who he had reason to believe were agents
of the German government, and that there was reasonable
cause to believe that he desired and intended to continue
the actions aforesaid. It is true that the '"' reason" given was
not that stated in the order, but it is explained that this was a
mistake, and the " particulars' are vouched in an affidavit of
the Home Secretary as particulars of the original reason of
"hostile associations." It is obvious that no important
reasons of State prevented the Home Secretary from disclosing
the causes of his belief. It is, however, said that the sources
of his information may be confidential. I think this in some
cases is likely to be so, but I cannot think that this creates
any difficulty. The Home Secretary has the right to withhold
evidence that he can assure the court is confidential and
cannot in the public interest be disclosed. He has in this
case and in others sworn affidavits to the effect that the
information he acted on was the result of reports and
information from persons in responsible positions experienced
in investigating matters of this kind and that he accepted
their information. Before the era of "'subjective'"' cause,
and, indeed, afterwards, the Divisional Court and the Court
of Appeal have accepted these affidavits as satisfactory proof
of the existence of reasonable cause. This was not a view
favoured by the Attorney-General in the present case, for
it weakens his case as to public mischief. But, in fact, if the
affidavits are supported by statements by or on behalf of the
Secretary of State vouching the necessity of withholding the
A. C. 1942. 3 R

241

H. L. (E.)

1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Atkin.

242

H.L. (E,)
1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Atkin.

HOUSE OF LORDS [1942]

names of the witnesses in the public interest, I personally
agree with the former decisions and cannot see why, if the
courts believe the Home Secretary and accept the substance
of the information as constituting reasonable cause, they
should not be satisfied that reasonable cause has been shown.
The source of the information is merely a question going to
the credibility of the person informed, and, no doubt, to the
issue of reasonableness. But in police matters it is often
withheld, and if, for instance, a constable defending an action
for false imprisonment or wrongful arrest were to give in
evidence that an informant whom he believed and had proved
to be trustworthy had told him that the plaintiff was present
at the scene of the felony in incriminating circumstances and
the constable was corroborated by his inspector and sergeant
but he declined to give the name of the informant, I think it
clear that the court might accept the evidence as proving
reasonable cause for suspicion. I agree with the Divisional
Court, in the case of Greene, in accepting what appears at
that time to have been the contention of the Home Secretary
that the Home Secretary's affidavit establishes the particulars
as constituting reasonable cause. I think that the members
of the Court of Appeal, though infected with the '' subjective "
virus, took the same view. In addition to this, it must be
remembered that by s. 6 of the Emergency Powers (Defence)
Act, 1939, there is complete power in the court to order
proceedings to be heard in camera, and to prohibit the dis-
closure of any information concerning them. I cannot believe
that proceedings for false imprisonment or for a writ of habeas
corpus present more difficulties of this kind than does the trial
of a spy. Lastly, on this question of expediency I would
recall that for months after the regulation came into force
this suggested difficulty never presented itself to the minds
of the Home Secretary and his advisers, but, on the contrary,
in Rex v. Secretary of State for Home Affairs. Ex parte Lees (1),
the Home Secretary, when represented by the present Solicitor-
General and the same junior counsel as in this case, frankly
accepted the burden of proving reasonable cause.

(1) [1941] 1 K. B. 72.

A. C. AND PRIVY COUNCIL.

It was further said that the provision of safeguards in the
regulation itself, the resort to the advisory committee, the
providing of " grounds "' and " particulars,' and the right to
make representations to the Secretary of State indicate that the
original power to detain was unconditional. But how uncon-
vincing this appears. These safeguards are nothing compared
with those given to a man arrested by a constable who must
at once be brought before a judicial tribunal who investigates
the case in public. Yet the constable or anyone else empowered
to arrest on reasonable cause is liable to an action if he has
exceeded his authority.

What appears to me to be the only argument as to
expediency put forward by the respondents which has any
weight was that derived from the second point of the powers
given—" reasonable cause to believe .... that by reason
"thereof it is necessary to exercise control over him."
Adroitly the Attorney-General dealt with this first. Can it
be supposed, he said, that it was intended that the
accumulated experience, instinct and knowledge of the
minister in coming to a decision on this matter could be
replaced by a judgment of a court of law? But first things
first. Before this decision is made there has to be a valid
belief that the subject was of hostile origin, associations, etc.
When once this is established, it is very unlikely that a court
would not in most cases accept as reasonable the Home
Secretary's decision to detain. But even on this part of the
machinery for detention there is ample scope for an
independent inquiry. Let us take the case of "hostile
"origin." If aman or a woman of hostile origin made the
case that he or she had been a loyal subject for thirty or forty
years, was a supporter of this country's war effort, and had
never taken any part in any hostile activity, would it not be
open to the courts to consider whether by reason of the hostile
origin it was necessary to control him or her? Could the
Home Secretary'support a mere order to detain all persons of
hostile origin regardless of age, sex or antecedents ? Or could
he support an order against a subject who had been a member
of an organization which the Home Secretary was satisfied

3 Re

243

H. L..(E.)

IQ4I

LIVERSIDGE
Uv.
SIR JOHN
ANDERSON.

Lord Atkin.

244

H.L. (E.)
IQ4I

—
LIVERSIDGE
v.

SIR JOHN
ANDERSON.

~ Lord Atkin.

HOUSE OF LORDS (1942).

was now within 1A (a) or (b) but had ceased to be for years
and had genuinely disclaimed any sympathy with its present
objects. It must be remembered that at the time of the issue
of the regulation organizations of both left and right were
under suspicion, and there may well have been good reasons
for granting protection to persons who had merely at some time
or other been members of them without more.

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 (1), cited with approval by my noble and
learned friend Lord Wright in Barnard v. Gorman (2): "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

(1) (1850) 5 Ex. 378. (2) [1941] A. C. 378, 393.

A. C. AND PRIVY COUNCIL.

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 two
cases before us ought not to be difficult to make. In the
Liversidge case the appellant has delivered a statement
of claim averring that he was wrongly imprisoned by the
respondent, the Secretary of State. The respondent traverses
the wrongful imprisonment and contents himself with the
admission that he ordered the appellant to be detained under
the regulation. The appellant asked for particulars of his
reasonable cause to believe (a) as to hostile associations, (0)
as to necessity to control him. In my opinion, the appellant
is not bound to rely on the traverse, though as a matter of
pleading that, in my opinion, amounts to a positive allegation
of authority to detain for which particulars may be asked.

245

H. L. (E,)

1941

LIVERSIDGE
Uv.

SIR JOHN

ANDERSON.

Lord Atkin,

The appellant' s right to particulars, however, is based on a

"much broader ground, a principle which again is one of the
pillars of liberty in that in English law every imprisonment is
prima facie unlawful and that it is for a person directing
'imprisonment to justify his act. The only exception is in
'respect of imprisonment ordered by a judge, who from the
nature of his office cannot be sued, and the validity of whose

246

H. L. (E.)
1941

HOUSE OF LORDS [1942]

judicial decisions cannot in such proceedings as the present
be questioned. My noble friend, Lord Macmillan, suggests

Liversipcr that under a more exacting system of pleading the appellant

v.
SIR JOHN

would have to aver the absence of reasonable grounds on the

ANDERSON. part of the Secretary of State. The English system of pleading

Lord Atkin.

was exacting enough a hundred years ago, but then and ever
since, by reason of the presumption I have stated, the
averment in an action against a constable for false imprison-
ment was in the form adopted in the present case, and the
defendant had to plead his justification with particulars :
Holroyd v. Doncaster (1), and the cases cited earlier in this
judgment. There is no distinction of persons. The defendant
has to justify with particulars, and in my opinion the appellant
in this case was clearly right in asking for particulars. If
the respondents were able to satisfy the court that they could
not give particulars in the public interest, the court would
either not order particulars or, if the objection came after the
order, would not enforce it. There was no evidence of this
kind at the hearing of this summons, and, in my opinion, the
appeal ought to be allowed and an order made in the terms of

the summons.

In the Greene case the circumstances are not the same.
It may be that in an application for a writ of habeas corpus
the applicant could rely on the presumption against imprison-
ment and seek to throw the onus without more on the
defendant, but in practice he does not do so. He puts material
before the court to lead to the conclusion that the imprisonment
was unlawful, and that is what the applicant did here. The
Secretary of State appears to have been ready to meet the
allegation of absence of reasonable cause. He referred to his
order, to the particulars given by the advisory committee,
which he insists were correct, and he made the affidavit
already referred to that he acted on the information of trust-
worthy informants. His affidavit does not claim privilege in
the correct form, but he instructed the Attorney-General on his
behalf to claim privilege which in this case, in the absence of
any objection to this course by the applicant, must be taken

(1) 3 Bing. 492.

A. C. AND PRIVY COUNCIL.

to be sufficient. The Divisional Court were of opinion
that, in view of this evidence, the applicant failed to satisfy
them that there was an absence of reasonable cause. I have
given my reasons for agreeing with them, and I would go further
and say that, in view of the particulars, as to which I take
it to be proved that the Secretary of State had information
which he could reasonably believe, the Secretary of State
has established reasonable cause for believing both the hostile
associations and the necessity to control.

Of course, if the subjective theory is right and the Secretary
of State has indeed unconditional power of imprisonment,
it was enough for him to say that he exercised the power.
But it seemed to be suggested in argument that, even if the
power were conditional, yet it would be a good return by the
Secretary of State to say that he had made the order in the
terms of the regulation. This seems to me, with respect, to
be fantastic. A minister given only a limited authority
cannot make for himself a valid return by merely saying I
acted as though I had authority. His ipse dixit avails
nothing. A constable would make no valid return by saying:
"T had reasonable cause for my arrest," or "I served the
"criminal at the time with a written notice that I was arresting
"him for reasonable suspicion of felony.'' However, on my
view of this, the Secretary of State has made a return
sufficient to indicate that the Divisional Court were right in
refusing to order the writ to issue. I think that the appeal
in this case should be dismissed.

Lorp MacmiILLtan. My Lords, by common assent at your
Lordships' Bar it was agreed that the substantial question
in these proceedings relates to the true meaning and effect of
certain words contained in reg. 18B, para. 1, of the Defence
(General) Regulations, 1939. By that regulation the Secretary
of State is empowered to make an order for the detention of
any person if he "has reasonable cause to believe '' such
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

247

H. L. (E.)
1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Atkin.

248

H. L. (E.)

1941

LIVERSIDGE
v,
SIR JOHN
ANDERSON.

Lord Macmillan.

HOUSE OF LORDS [1942]

"or instigation of such acts and that by reason thereof it
"is necessary to exercise control over him." Before he
exercises the power confided to him of making a detention
order against any individual the Secretary of State must
have reasonable cause to believe certain things about that
individual. Does this mean that the Secretary of State must
have such cause of belief regarding the relevant facts as a
court of law would hold sufficient to induce belief in the
mind of any ordinary reasonable man? Or does it mean
that he must have such cause of belief as he himself deems
to be reasonable ? To require that a cause of belief shall be
reasonable necessarily implies a reference to some standard
of reasonableness. Is the standard of reasonableness which
must be satisfied an impersonal standard independent of the
Secretary of State's own mind, or is it the personal standard
of what the Secretary of State himself deems reasonable ?
Between these two readings there is a fundamental difference
in legal effect. In the former case the reasonableness of the
cause which the Secretary of State had for his belief may,
if challenged, be examined by a court of law in order to
determine whether he had such cause of belief as would
satisfy the ordinary reasonable man, and to enable the court
to adjudicate on this question there must be disclosed to it
the facts and circumstances which the Secretary of State
had before him in arriving at his belief. In the latter case
it is for the Secretary of State alone to decide in the forum
of his own conscience whether he has a reasonable cause of
belief, and he cannot, if he has acted in good faith, be called
on to disclose to anyone the facts and circumstances which
have induced his belief or to satisfy anyone but himself
that these facts and circumstances constituted a reasonable
cause of belief.

Before discussing which of these rival views ought to
prevail. I must first indicate briefly the form in which the
question has come before your Lordships. On May 26, 1940,
the respondent, Sir John Anderson, then Secretary of State
for Home Affairs, made and signed an order in the following
terms :

A. C. AND PRIVY COUNCIL.

'" DEFENCE (GENERAL) REGULATIONS, 1939.
" DETENTION ORDER.

249

HL. (3
1941

'' Whereas I have reasonable cause to believe Jack Perlzweig Liversince

"alias Robert Liversidge to be a person of hostile associations

vU.
SIR JOHN

''and that by reason thereof it is necessary to exercise contro] ANDERSON.
"over him: Now, therefore, I, in pursuance of the power Lord Macmillan.

"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."

In virtue of this order the appellant was taken to Brixton
Prison where he has since been detained. On March 14, 1941,
the appellant issued a writ against the respondent, Sir John
Anderson, and also against Mr. Herbert Stanley Morrison,
who now in succession holds the office of Secretary of
State for Home Affairs. In his statement of claim the
appellant made (inter alia) the following allegations: " (3.) Bya
"document dated May 26, 1940, and expressed to be a
"detention order under reg. 18B of the Defence (General)
"Regulatigns, 1939, the first-named defendant ordered and
"directed that the plaintiff be detained. (4.) In consequence
"and by reason of the said order and direction the plaintiff
"was on or about May 29, 1940, arrested and he has since
"been and still is detained and imprisoned at H.M. Prison
CatiBhinton. visi. b (6.) In the premises the defendants have
"and each of them has caused and procured the unlawful
"detention and imprisonment of the plaintiff and the second-
"named defendant continues and intends to continue the
'"'same."' The statement concludes by claiming a declaration
that the appellant's detention and imprisonment was and
is unlawful, damages for false imprisonment, and, against
Mr. Morrison, an injunction against the continued detention
and imprisonment of the appellant. The respondents lodged
a defence admitting that Sir John Anderson ordered that
the appellant should be detained under reg. 18B of the

250

H.L. (E.)
1941

uss
LIVERSIDGE
Vv.
SIR JOHN
ANDERSON.

Lord Macmillan, ''

HOUSE OF LORDS [1942]

Defence (General) Regulations, 1939, but otherwise making
no admission. The appellant subsequently applied to the
master for an order on the respondents to give particulars
''(a) of the grounds upon which the first-named defendant
'"'had reasonable cause to believe the plaintiff to be a person
of hostile associations ; and (b) of the grounds upon which
"the first-named defendant had reasonable cause to believe
"that by reason of such hostile associations it was necessary
"to exercise control over the plaintiff.'' This application was
refused by the master and on appeal successively by Tucker J.
and the Court of Appeal.

I cannot refrain from remarking on the economy of the
appellant's averments. The action is one of damages for
false imprisonment, but the appellant nowhere states categori-
cally that he has been wrongly imprisoned or in what respect
the order in consequence and by reason of which he says he
has been detained is illegal, irregular or defective. In particular,
he does not allege what appears to be his real complaint, that
the Secretary of State had no reasonable ground to believe
that the appellant was a person of hostile associations and
that by reason thereof it was necessary to exercise control
over him. Under the more exacting rules of pleading to
which I was accustomed in the courts of Scotland the relevancy
and sufficiency of the averments which I have above set out
would certainly not have escaped criticism. Be that as it
may, it is at least abundantly clear that the action is of-an
exploratory nature. The appellant claims that he is entitled
to explore the mind of the Secretary of State in order to
find out what was the state of his information, in the hope
that when this is revealed it may prove to be such that the
court will hold it not to afford a reasonable cause for the
belief which the Secretary of State professed to entertain,
when judged by the standard of the ordinary reasonable
man.

I am thus brought back to the point from which I started,
for the answer to the question whether the appellant is entitled
to explore the mind of the Secretary of State depends entirely
on the true interpretation of the language in which his powers

A. C. AND PRIVY COUNCIL. 251

are conferred on him. For the appellant it was maintained H.L. (E,)
that the words of the regulation were clear and unambiguous. 10941
The competency of the Secretary of State to make a detention Liversipce
order was, it was argued, plainly subject to a condition ¢. Tome
precedent. There must exist in fact reasonable cause for ANDERSON.
belief in certain things, quite independently of what the Lord Macmillan.
Secretary of State himself chose to believe. It was further
said that "reasonable cause'"' was a term of art, frequent
and familiar in similar contexts, and always carried with it
a reference to an external or impersonal standard.

I do not agree that the critical phrase in the context in which
I find it is susceptible only of one meaning, namely that for
which the appellant contends. Were it so it would be strange
that several learned judges should have found it to possess
quite a different meaning. Had the phrase run in impersonal
form—"' If there is reasonable cause to believe '—there would
have been more justification for maintaining that there was
no ambiguity, though I should not even so have regarded
the matter as beyond question. But the regulation does not
so run. It reads: "If the Secretary of State has reasonable
"cause to believe " and thus at once introduces a
personal, not an impersonal, requirement.

Holding then, as I do, that the opening words of the
regulation are open to interpretation, I now propose to seek
what aid I can from the permissible sources of guidance.
In the first place, it is important to have in mind that the
regulation in question is a war measure. This is not to say
that the courts ought to adopt in wartime canons of con-
struction different from those which they follow in peace
time. The fact that the nation is at war is no justification
for any relaxation of the vigilance of the courts in seeing
that the law is duly observed, especially in a matter so
fundamental as the liberty of the subject—rather the contrary.
But in a time of emergency when the life of the whole nation
is at stake it may well be that a regulation for the defence
of the realm may quite properly have a meaning which because
of its drastic invasion of the liberty of the subject the courts
would be slow to attribute to a peace time measure, The

252

H. L. (E.)

1941

LIVERSIDGE
v

SiR JOHN

ANDERSON.

Lord Macmillan.

HOUSE OF LORDS [1942]

purpose of the regulation is to ensure public safety, and it
is right so to interpret emergency legislation as to promote
rather than to defeat its efficacy for the defence of the realm.
That is in accordance with a general rule applicable to the
interpretation of all statutes or statutory regulations in peace
time as well as in war time.

It is, therefore, proper to consider with what brad the
regulation was made. This appears clearly from the terms
of the empowering statute, the Emergency Powers_(Defence)
Act, 1939. By s. I, sub-s. 1, of that Act " His Majesty may
"by order in council make such regulations . . . . as appear
"to him to be necessary or expedient for securing the public
"safety, the defence of the realm, the maintenance of public
"order and the efficient prosecution of any war in which
"His Majesty may be engaged, and for maintaining supplies
"and services essential to the life of the community." The
second sub-section in particular authorizes the making of
Defence Regulations (inter alia) ''for the detention of persons
"whose detention appears to the Secretary of State to be
"expedient in the interests of the public safety or the defence
"of the realm.'' There could be no clearer evidence of the
intention of Parliament to authorize the abrogation in the
public interest and at the absolute discretion of the Secretary
of State of the ordinary law affecting the liberty of the subject.
A perusal of the whole Act and of the subsequent Act of 1940
is sufficient to satisfy any reader of the extraordinary inter-
ferences with the citizen's most cherished rights of person
and property which, in the view of Parliament, may be
necessary and proper in the present grave national danger.
In considering the interpretation of the regulation authorizing
the Secretary of State to make detention orders I therefore
bear in mind that Parliament has expressly contemplated
that he should by regulation be empowered to do so at his
absolute discretion. I also note as indicative of the abnormal
and temporary character of the legislation that it is expressly
limited in duration. With its expiry the power of detention
will, of course, also come to an end.

In the next place, it is relevant to consider to whom the

A.C. AND PRIVY COUNCIL.

emergency power of detention is confided. The statute has
authorized it to be conferred on a Secretary of State, one of

253

HaL, (Es)
1941

the high officers of State who, by reason of his position, is Liversincr

entitled to public confidence in his capacity and integrity,

v.
SIR JOHN

who is answerable to Parliament for his conduct in office ANDERSON.
and who has access to exclusive sources of information. In Lord Macmillan.

a question of interpreting the scope of a power it is obvious
that a wide discretionary power may more readily be inferred
to have been confided to one who has high authority and
grave responsibility.

I turn now to the nature of the topics as to which the
Secretary of State is under the regulation to have reasonable
cause of belief. They fall into two categories. The Secretary
of State has to decide (z.) whether the person proposed to
be detained is a person of hostile origin or associations or has
been recently concerned in certain activities, but he has also
to make up his mind (2.) whether by reason thereof it is
necessary to exercise*control over him. The first of these
requirements relates to matters of fact, and it may be that
a court of law, if it could have before it all the Secretary of
State's information—an important "if ''—might be able to
say whether such information would to an ordinary reasonable
man constitute a reasonable cause of belief. But how could
a court of"law deal with the question whether there was
reasonable cause to believe that it was necessary to exercise
control over the person proposed to be detained, which is
a matter of opinion and policy, not of fact ? A decision on
this question can manifestly be taken only by one who has
both knowledge and responsibility which no court can share.
As Lord Parker said in The Zamora (1): '' Those who
"are responsible for the national security must be the sole
"judges of what the national security requires. It would be
"obviously undesirable that such matters should be made
"the subject of evidence in a court of law or otherwise
"discussed in public." I may also quote the words of Lord
Finlay L.C. in Rex v. Halliday (2) : " It seems obvious that no
"tribunal for investigating the question whether circumstances

(1) [1916] 2 A. C. 77, 107.: (2) [1917] A. C. 260, 269.

254

H. L. (E.)
1941

——
LIVERSIDGE
UV.
SIR JOHN
ANDERSON.

Lord Macmillan.

HOUSE OF LORDS [1942)

"of suspicion exist warranting some restraint can be imagined
"less appropriate than a court of law." The question is one of
preventive detention justified by reasonable probability, not of
criminal conviction which can only be justified by legal evidence.
As I have indicated, a court of law manifestly could not
pronounce on the reasonableness of the Secretary of State's
cause of belief unless it were able to place itself in the position
of the Secretary of State and were put in possession of all
the knowledge both of facts and of policy which he had.
But the public interest must, by the nature of things,
frequently preclude the Secretary of State from disclosing to
a court or to anyone else the facts and reasons which have
actuated him. What is to happen then? The appellant says
that the court is entitled and has a duty to examine the grounds
of the Secretary of State's belief. But the court is also bound
to accept a statement by the Secretary of State that he cannot
consistently with the public interest divulge these grounds.
Here is indeed an impasse. The appellant's solution has
the merit of courage, not to say audacity. He says that
where the Secretary of State, by declining to disclose his
information, has failed, through no fault of his own, to justify
the detention, he must be held confessed of having falsely
imprisoned the detained person and must be mulcted in
damages. It will naturally be in the most dangerous cases,
where detention is most essential to the public safety, that
the information before the Secretary of State is most likely
to be of a confidential character, precluding its disclosure. Yet
the court is to be constrained where detention is most justifiable
to find the detention unjustified. I decline to accept an interpre-
tation of the regulation which leads to so fantastic a result.
Were the person detained left without any safeguard, this
might be an argument against holding that an absolute
discretion has been conferred on the Secretary of State, but
the argument is the other way when it is found, as it is in
this regulation, that elaborate provision is made for the
safeguarding of the detained person's interests. I refer to
the constitution of advisory committees to which any person
aggrieved by a detention order may make representations.

A. C. AND PRIVY COUNCIL. 255

The duty is imposed on the chairman to inform the objector H. L. (E.)
of the grounds on which the detention order has been made 1941
and to furnish him with such particulars as are in the chairman's Liversipce
opinion sufficient to enable him to state his case. Isay nothing ¢,, ToRnt
as to the efficacy of this safeguard, for I do not know how it ANDERSON. -
operates in practice, but I emphasize the significance of its Lord Macmillan.
presence in the regulation. It suggests that this special
procedure was introduced for the very reason that review
by the law courts was excluded. Yet here again the paramount
concern not to diminish the personal authority and respon-
sibility of the Secretary of State is evidenced by the recognition
of his right to decline to follow any advice given to him by
an advisory committee. Nevertheless, says the appellant,
he must accept the decision of a court of law, however contrary
to his own view. I note a further safeguard in the requirement
that the Secretary of State must at least every month report
to Parliament as to the action taken by him under the
regulation (including the number of persons detained under
orders made thereunder) and as to the number of cases, if
any, in which he has declined to follow the advice of an
advisory committee. The regulation concludes with the
following provision: " (8.) Any person detained in pursuance
"of this regulation shall be deemed to be in lawful custody
"and shall' be detained in such place as may be authorized by
"the Secretary of State and in accordance with instructions
"issued by him." I see the force of the point taken by the
appellant that this gives protection to the Secretary of State
only where a person has been detained "in pursuance of"
the regulation and would not protect him where the detention
was not warranted by the regulation, but the provision at
least exhibits anxiety to afford the Secretary of State the
fullest measure of protection when acting within his powers.
I must not omit to notice the appellant's argument founded
on the contrast between the opening words of the regulation
in conferring the power of detention on the Secretary of State
and the words used elsewhere in the regulations when other
powers of an admittedly discretionary character are conferred
on him and on others. The argument is that where different

256

H. L. (E.)

1941

th feat
LIVERSIDGE
vz.
SIR JOHN
ANDERSON.

Lord Macmillan.

HOUSE OF LORDS [1942}

words are used a different meaning is intended. The argument
by contrast is of little assistance in the present instance, for
the regulations have observed no uniformity of language.
Lord Blackburn, then Blackburn J., once said that you ought
"never to change the form of words unless you are going to
"change the meaning and it would be as well if those who are
"engaged in the preparation of Acts of Parliament would
"bear in mind that that is the real principle of construction.
"But," he went on to say, "in drawing Acts of Parliament
"the legislature, as it would seem, to improve the graces of
"the style and to avoid using the same words over and over
"again constantly changes them": Hadley v. Perks (1).
The regulations before your Lordships certainly exhibit a
remarkable diversity of terminology. Thus I find the following
expressions used with relation to various powers confided to
various persons: "If it appears to the Secretary of State "' ;
"If the Secretary of State is satisfied'"'; "If he considers it
"necessary ''; '' Where it is shown to the satisfaction of "' ;
"Where it appears to the proper authority that there is
"reason to believe.'' More intensive study of the regulations
would probably disclose further variations in language where
there is no substantial difference in meaning and effect. The
argument that when the regulations mean different things
they use different language-and when they mean the same
thing they use the same language breaks down, regrettable
as this must be to the drafting purist.

But then it. is said that the critical words have been
introduced by an amendment of the language used in the
regulation as originally made, and must be taken to have
been altered. advisedly. I do not know, and it would not be
proper for me to inquire why a change was made, but it may
well be that in view of the gravity of this matter of detention
it -was thought right to adopt more emphatic words by way
of admonition to the Secretary of State to make sure of his
grounds before he took action. If the regulation had been
framed so as to read, as the appellant would read it, "If
"the Secretary of State has such cause of belief as a court

(1) (1866) L. R. 1 Q. B. 444, 457.

A.C. AND PRIVY COUNCIL. ~

"of law would hold to be reasonable," I doubt if it would
have commended itself as an emergency measure. Courts
may differ as to what is reasonable. A judge of first instance
might hold the Secretary of State to have been justified in
his belief, the Court of Appeal might take another view and
this House might have its own view. In a matter at once
so vital and so urgent in the interests of national safety,
I am unable to accept a reading of the regulation which would
prescribe that the Secretary of State may not act in accordance
with what commends itself to him as a reasonable cause of
belief without incurring the risk that a court of law would
disagree with him, and also without the further liability that,
should the court do so or if he cannot consistently with his
duty disclose to the court the grounds of his belief, he will
be mulcted in damages for false imprisonment as having acted
outwith his powers.

My Lords, I make no apology for having discussed so fully
the various aspects of the question before the House, for it
is one of the highest importance. I yield to no one in my
recognition of the value of the jealous scrutiny which our
courts have always rightly exercised in considering any invasion
of the liberty of the subject. But I remind myself, in Lord
Atkinson's words, that "' however precious the personal liberty
"of the subject may be there is something for which it may
"well be, to some extent, sacrificed by legal enactment,
"namely, national success in the war or escape from national
"plunder or enslavement": Rex v. Halliday (1). The liberty
which we so justly extol is itself the gift of the law and as
Magna Carta recognizes may by the law be forfeited or
abridged. At a time when it is the undoubted law of the
land that a citizen may by conscription or requisition be
compelled to give up his life and all that he possesses for his
country's cause it may well be no matter for surprise that
there should be confided to the Secretary of State a discretionary
power of enforcing the relatively mild precaution of detention.
In the Court of Appeal the question was approached from
the point of view of onus, as was not unnatural in view of

(1) [1917] A. C. 260, 271.
ee.) 1942: 3 Ss

257

H2L(E)
1941
LIVERSIDGE

v.
SIR JoHN
ANDERSON.

Lord Macmillan.

258

H. L. (E,)

1941
LIVERSIDGE

v.
SIR JOHN
ANDERSON.

Lord Macmillan.

HOUSE OF LORDS [1942]

the form in which the matter came before the court. I have
preferred to deal with the substance, but in view of what
was said in the Court of Appeal I should add that, in my
opinion, the production by the Secretary of State of an order
of detention by him ex facie regular and duly authenticated,
such as the House has before it in this case, constitutes a
peremptory defence to any action of false imprisonment and
places on the plaintiff the burden of establishing that the order
is unwarranted, defective or otherwise invalid. Counsel for the
appellant admitted that if the House should adopt the interpre-
tation of the regulation which I have reached the appeal must
be dismissed and I concur in the motion that that be its fate.

Lorp WricHut. My Lords, this appeal and the appeal
which immediately followed it, Greene v. Secretary of State for
Home Affairs (1), have the common feature that each involves
an inquiry into the true construction of reg. 18B, one of the
Defence Regulations made under the Emergency Powers
(Defence) Act, 1939. The argument on construction has
primarily turned upon para. 1 of the regulation which is in
these terms: "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."" The remainder of the regulation will require
to be considered in so far as it throws light on the effect of
the words just quoted. In the present appeal the appellant
has been and is being detained in pursuance or professed
pursuance of the regulation under an order made by the first
respondent in which he stated that he had reasonable cause
to believe the appellant to be a person of hostile associations
and that by reason thereof it was necessary to exercise control
over him. The appellant brought an action for unlawful
imprisonment against the first respondent who originally made

(1) Post, p. 284.

A. C. AND PRIVY COUNCIL.

259

the order during his period of office as Home Secretary and H.L. (E.)

against his successor the second respondent who confirmed

1941

and continued it. In form the proceedings under appeal Liversivce
simply involve an application for particulars by the appellant ,, jong
of the grounds upon which the first respondent had reasonable ANDERSON.
cause to believe the appellant to be a person of hostile Lord wright.

associations and to believe that by reason thereof it was
necessary to exercise control over him. The application has
been refused by the master, by Tucker J., and by the Court
of Appeal. The respondents have relied on the order (which
was admitted in the statement of claim) as showing on its
face the lawful exercise of the powers and duties vested in,
or imposed on, them under the regulation, and without more
showing a sufficient justification. The appellant has contended
that the detention order was not sufficient justification on its
face because the validity of such an order depends on proof
by the respondents of what according to the arguments of the
appellant was a "' condition precedent to its validity," namely,
that the Home Secretary had reasonable cause to believe the
two matters set out in the order and hence that the respondents
could not rely on the order as a lawful order unless they could
establish by the judgment of the court that they had reasonable
grounds for their belief. As this, it was said, was what the
respondents had to prove in the action, they were bound
to give particulars of their case. The respondents, on the
contrary, contended that they were invested with a duty
and discretion in their office as ministers such that, if it was
exercised in good faith (which was not in question), the
interference with the appellant's liberty was lawful and was
not subject to the jurisdiction of the court. The discretion of
the Home Secretary was, it was said, made final by the words
of the statutory regulation. The terms of the regulation made
the decision of a court as to the reasonableness in fact of the
Home Secretary's belief immaterial. The only relevant question
was whether the Secretary had a belief which to his mind
was reasonable. In the words which Lord Finlay L.C. in
Rex v. Halliday (1) used in reference to the similar provision

(1) [1917] A. C. 260, 269.
3 S2

260 HOUSE OF LORDS [1942]

H.L.(E.) in the corresponding Defence of the Realm Regulations made

ro41 during the last war, '' no tribunal for investigating the question

Liversipce ''whether circumstances of suspicion exist warranting some

Ste Joun "restraint can be imagined less appropriate than a court of

ANDERSON. "'Jaw,"" These conflicting contentions raised a question of

Lord Wright. principle. Counsel on both sides have argued on the substance

"of the matter, putting aside technical questions of practice
and pleading. #

What is involved is the liberty of the subject. Your

Lordships have had your attention called to the evils of

the exercise of arbitrary powers of arrest by the executive

and the necessity of subjecting all such powers to judicial

control. Your Lordships have been reminded of the great

constitutional conflicts in the seventeenth century, which

culminated in the famous constitutional charters, the Petition

of Right, the Bill of Rights, and the Act of Settlement.

These struggles did, indeed, involve the liberty of the subject

and its vindication against arbitrary and unlawful power.

They sprang (to state it very broadly) from the Stuart theory

that the King was King by divine right and that his powers

were above the law. Thus a warrant of arrest "' per speciale

"mandatum Domini Regis"? was claimed to be a sufficient

justification for detention without trial. But by the end of

the seventeenth century the old common law rule of the

'supremacy of law was restored and substituted for any theory

of royal supremacy. All the courts to-day, and not least

this House, are as jealous as they have ever been in upholding

the liberty of the subject. But that liberty is a liberty confined

and controlled by law, whether common law or statute.

It is, in Burke's words, a regulated freedom. It is not an

abstract or absolute freedom. Parliament is supreme. It

can enact extraordinary powers of interfering with personal

liberty. If an Act of Parliament, or a statutory regulation,

like reg. 18B, which has admittedly the force of a statute,

because there is no suggestion that it is ultra vires or outside

the Emergency Powers (Defence) Act, under which it was

made, is alleged to limit or curtail the liberty of the subject

or vest in the executive extraordinary powers of detaining a

A.C. AND PRIVY COUNCIL.

subject, the only question is what is the precise extent of the
powers given. The answer to that question is only to be

261

H.L. (E)
1941

found by scrutinizing the language of the enactment in the Liversiocr

light of the circumstances and the general policy and object
of the measure. I have ventured on these elementary and
obvious observations because it seems to have been suggested
on behalf of the appellant that this House was being asked to
countenance arbitrary, despotic or tyrannous conduct. But
in the constitution of this country there are no guaranteed
or absolute rights. The safeguard of British liberty is in the
good sense of the people and in the system of representative
and responsible government which has been evolved. If
extraordinary powers are here given, they are given because
the emergency is extraordinary and are limited to the period
of the emergency.

I confess that, notwithstanding all my prejudices in favour
of upholding the liberty of the subject, I have come to a clear
conclusion that the courts below were right in refusing the
particulars asked for. No reasons were given by the master
or Tucker J., but in a later case, Stuart v. Anderson and
Morrison (1), Tucker J. adopted in an action for unlawful
imprisonment substantially what I regard as the true con-
struction of reg. 18B. He said in effect that it was clear
from the regulation that the decision on this difficult matter
was not to be entrusted to one of His Majesty's judges, or
to any ad hoc tribunal, but to the Home Secretary alone, and
that the court has no jurisdiction to sit as an appellate tribunal
on any decision of the Home Secretary, much less has the
court power to try any case itself, in order to see if it would
have come to the same conclusion as the Home Secretary
if the legislature had entrusted the matter to a judge. The
judge adds what is obvious, that the court might no doubt
be called on to decide questions of bona fides or mistaken
identity, if they should ever arise. I may further here refer
to the judgment of the Court of Appeal in Greene's case (2), the
appeal in which follows this appeal. I shall in due course
examine that case which raises technical questions on the law

(1) (1941) 165 L. T. 120, (2) [1942] 1 K. B. 87,

v.
SIR JOHN
ANDERSON.

Lord Wright.

262

H. L. (E.)

1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Wright.

HOUSE OF LORDS [1942]

or practice applying to proceedings in habeas corpus, but
the construction of the regulation is the substantial foundation
of that case as well as this. I ought therefore to advert here
briefly to what was said on that issue. Scott L.J., who gave
the leading judgment, was of opinion that the decision of
the Home Secretary was executive, not judicial, and that the
regulation made him the final judge of the reasonableness of
the causes on which he took action. "' The whole regulation,"
said the Lord Justice (1), "deals with a topic which is necessarily
"of a highly confidential character. It invites a decision,
"at least as a preliminary to action, by an executive Minister
"of the Crown, who occupies a position of utmost confidence ;
"who has at his disposal much secret information which
"ought not to be made public—above all during a war—who
"is under a duty to keep that information and its sources
"secret ; and, finally, who cannot be compelled in any court
"to divulge what he considers ought not in the national
"interest to be divulged."" MacKinnon L.J., who agreed with
his brethren, said (2) that power of the Home Secretary to issue
a valid order depended on the fulfilment of a condition, the
existence of a state of mind in the Home Secretary, that is,
that he had reasonable grounds for believing certain facts to
exist, and by implication that he honestly entertained that
belief. Goddard L.J., I think, also treated the material issue
as being what is the Home Secretary's state of mind.

I find support for this view in Rex v. Halliday (3), a habeas
corpus case arising during the last war on a regulation very
similar in its general character to reg. 18B. There were
differences in the language of the reg. 14B which was the
enactment there in question, and the machinery was in some
respects different. I am here only concerned with the general
principles stated by this House. Their Lordships brushed
aside an argument not raised in the present case that the
regulation was ultra vires of the statute. Lord Shaw dissented
on that point. He did not proceed on any doubt as to the
meaning of the regulation, which he held, if valid, vested

(T)E[TOA LI eke B37508. (3) [1917] A. C, 260,
(2) Ibid. 108,

A. C. AND PRIVY COUNCIL.

according to its terms in the Secretary of State plenary
discretion to arrest and detain a subject without trial. On
that ground he was of opinion that it was outside the delegated
legislative power conferred by the Act because there were no
express words in the Act providing for imprisonment without
trial. The majority of their Lordships held that the regulation
was not ultra vires. Lord Finlay L.C. (rz) said that the measure
was '"'not punitive but precautionary.'' It was directed to
taking precautions during the war against the dangers of
espionage and sabotage which experience showed to be so
serious. "' No crime," he said, "is charged. The question
"is whether there is ground for suspicion that a particular
"person may be disposed to help the enemy. The duty of
"deciding this question is by the order thrown upon the
"Secretary of State, and an advisory committee presided
"over by a judge of the High Court [which was the machinery
"under reg. 14B] is provided to bring before him any grounds
"for thinking that the order may properly be revoked or
"varied."" He added that the suggested rule as to construing
penal statutes in favour of the liberty of the subject had
no reference to a case dealing with an executive measure by
way of preventing a public danger. These wise words were
concurred if by Lord Dunedin, who added (2) that preventive
measures in the shape of internment of persons likely to
assist the enemy might obviously be necessary, and Parliament
had risked the chance of abuse which is always theoretically
present when absolute powers in general terms are delegated
to an executive body, thinking that the restriction of the
powers to the duration of the war was a sufficient safeguard.
"However precious," said Lord Atkinson (3), " the personal
"liberty of the subject may be, there is something for which
"it may well be, to some extent, sacrificed by legal enactment,
"namely, national success in the war or escape from national
"plunder or enslavement. It must not be assumed," he said,
"that the powers conferred upon the executive by statute
"will be abused."'

These speeches embody statements of principle very relevant

(1) [1917] A. C, 260, 269. (2) Ibid. 271. (3) Ibid, 271,

263

H.L. (E.)

1941

LIVERSIDGE
Vv.
SIR JOHN
ANDERSON.

Lord Wright.

i

264

H. 1.. (E.)
soi

HOUSE OF LORDS [1942]

to the present case, and, notwithstanding differences in the
particular enactments, furnish an important and direct

Livexsince precedent for the conferring of powers to exercise preventive

SIR Tous
ANDERSON,

Lord Wright.

detention on his own responsibility on the Home Secretary,
and, subject to theoretical exceptions not relevant here,
ousting the jurisdiction of the court. In ordinary adminis-
trative measures, the legislative practice of substituting for
the jurisdiction of the court that of a specially constituted
tribunal is well established and increasingly frequent, parti-
cularly since the decision of this House in Local Government
Board v. Arlidge (1). The case dealt with closing orders
under the Housing and Town Planning Act, 1909. Lord
Haldane L.C. (2) pointed out that in regard to these adminis-
trative orders "the jurisdiction, both as regards original
"applications and as regards appeals, was in England transferred
"from courts of justice to the local authority and the Local
"Government Board, both of them administrative bodies."'
It is true that the personal liberty of the subject was there
not affected, but only his liberty to do what he likes with
his own. But the principle is the same. Parliament excludes
the jurisdiction of the courts and substitutes in the one case
a specially constituted administrative body, in a case like
the present the Secretary of State. In no case are ordinary
legal rights to be affected unless and then only to the extent that
Parliament has enacted tothe contrary. Inreg. 18B the Home
Secretary is expressly empowered to make a detention order in
the circumstances specified. What are these circumstances ?
They are a belief or mental state of the minister. Except for
the word "' reasonable,"' which I shall later discuss, there is no
reference to anything but his personal belief, because I think
that actual belief is implied by the words "'has reasonable cause
"to believe.'' His belief is something personal to himself.
The reasonable cause can only be material in so far as it is
an element present to his mind which determines his own
belief. The "cause to believe' is part of the content of his
mind. The matters specified, except hostile origin and,
perhaps, hostile associations, are matters of opinion or

(1) [1915] A. C. 120, (2) Ibid. 132,

A. C. AND PRIVY COUNCIL.

judgment, not matters of fact. It is essentially a matter of
expert and instructed conclusion or suspicion whether or not
the acts in which the subject has been concerned were such
as to be prejudicial to the public safety or defence of the realm ;
even more obviously is the belief or decision that by reason
thereof it is necessary to exercise control over him a matter of
executive discretion. It is clear that the control is preventive,
not punitive, and that the action is not judicial, but executive.

The regulation places on the Secretary a public duty and
trust of the gravest national importance. As I understand the
regulation, it is a duty which he must discharge on his own
responsibility to the utmost of his ability, weighing, on the
one hand, the suspect's right to personal liberty, and, on the
other hand, the safety of the State in the dire national peril
in which during this war it has stood and stands. All the
circumstances of national safety to which this House adverted
in Rex v. Halliday (1) are present in this war, only with vastly
increased urgency and gravity, because German methods for
effecting the poisonous infiltration among British or allied
subjects of their purposes and schemes have been immensely
more subtle and ingenious than in the last war. Even a judge
may be allowed to take notice of the import of words like
Fifth Coltmnists and Quislings and the like. It is the duty of
the Secretary to check these underground and _ insidious
activities of the enemy and their consequences, whether they
result in sabotage or in anti-British propaganda or in weakening
the national effort and endurance. In reg. 14B, during the
last war, the minister could only act on the recommendation
of a competent naval or military authority or of the advisory
committee. There was, it seems, an external condition in that
respect. In reg. 18B that pre-condition is absent. The
Secretary must now act on his own responsibility if he has
reasonable cause to believe, that is, believes that he has in
his own mind what he thinks is reasonable cause. If that is
his mental state, the duty to act in the national interest
attaches. That is a higher duty than the duty to regard the
liberty of the subject. I cannot see any ground for holding

' (1) [1917] A. C. 260,

2605

H. L. (E.)
1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Wright.

——

266

H. L. (E.)

1941

LIVERSIDGE
uv.
SIR JOHN
ANDERSON.

Lord Wright.

HOUSE OF LORDS [1942}

that the performance of that duty is to be subject to the
decision of a judge, who cannot possibly have the full
information on which the minister has acted or appreciate
the full importance in the national interest of what the
information discloses. In these cases full legal evidence or
proof is impossible, even if the Secretary does not claim that
disclosure is against the public interest, a claim which must
necessarily be made in practically every case, and a claim
which a judge necessarily has to admit. To a large extent
the sources of information must be secret. Espionage must
be met by counter-espionage. Even to refuse the disclosure
may give dangerous hints to the enemy. A hearing in camera
is, no doubt, permissible (in particular under s. 6 of the
Emergency Powers (Defence) Act, 1939), but a hearing in
camera, if the public called for full disclosure, would not
satisfy the public conscience, and in matters of this delicacy
leakage must inevitably take place. Counsel on both sides
refused to accept the suggestion that at a trial where the issue
was whether the Secretary was justified in making his order,
the judge might say at some early stage that he was satisfied
by what he had heard and stop the case, treating the onus
as being on the defendant and hold that it was discharged.
That, it seems to me, would be the travesty of a trial. I can
imagine the counsel for the plaintiff insisting that the case
should be fully tried, that he was entitled to cross-examine
the Secretary on a matter personal to himself, that part
evidence might be edited and selected, that the judge could
not decide the case unless he had all the evidence, and that
the defendant (on whom the appellants allege rests the burden
of justifying the detention) must fail in his defence if he refuses
to disclose material evidence, even on the ground that to disclose
it is against the national interest. In any case, neither the
appellant nor the respondent was satisfied with the half-way
house. However, on the construction of the regulation which
I accept, the question does not arise. These and other like
considerations make Lord Finlay's observation which I quoted
above, that no tribunal could be imagined less appropriate
than a court of law for deciding these questions, at least as

A. C. AND PRIVY COUNCIL.

applicable to reg. 18B as it was to reg. 14B under the earlier
statute. I might go further and say that the court is not
merely an inappropriate tribunal, but one the jurisdiction of
which is unworkable and even illusory in these cases. In my
judgment, a court of law could not have before it the
information on which the Secretary acts, still less the back-
ground of statecraft and national policy which is what must
determine the action which he takes on it. ,

I am confirmed in the opinion that the matter is one for
executive discretion by other provisions in the regulation, in
particular, those relating to the advisory committee or
committees which are to be appointed under para. 3 of the
regulation by the Secretary of State, which are to hear
objections to or in respect of any order made under the
regulation. Under para. 4 the Secretary is to give the person
against whom the order is made the earliest possible opportunity
of making representations to him in respect of the order and
inform him of his right to make objections before the
committee. The chairman of the committee is to inform the
objector of the grounds (which I think means grounds of a
general nature, such as hostile origin or associations) and
also give him such particulars as in the opinion of the chairman
are sufficiént to enable him to present his case. It is said on
behalf of the appellant that such provisions are no substitute
for a trial before an independent judge and that the
committees are chosen by the Secretary and that the Secretary
may decline to attend to their advice. This is true enough,
but they go to show that the regulation is dealing with an
executive discretion, in the exercise of which the discretion of
the minister is final. They seem to me to be inconsistent with
the idea that recourse to a court of law by way of appeal
against or justification of the order was open. Indeed, if
that had been contemplated I think that there must have
been express words giving it. These provisions seem to
me to be a substitute for a trial in court of the issues, no
doubt inadequate in one sense, but as effective as the circum-
stances admit. I particularly rely in support of my conclusion
on the circumstance that the Secretary is entitled to decline

267

H.L. (E,)
1941

LIVERSIDGE
v.
Str JOHN
ANDERSON.

Lord Wright.

268

H. L. (E.)

1941

LIVERSIDGE
UV.
SIR JOHN
ANDERSON.

Lord Wright.

HOUSE OF LORDS {1942}

to follow the recommendation or advice of the committee.
The responsibility is his alone.

But against all these arguments the appellant relies on the
use of the word "reasonable" as qualifying the '' cause to
"believe." It is said that " reasonable " necessarily implies
an external standard to be applied by someone other than
the Secretary, namely, by a judge. I cannot accept that
contention, which seems to me to subordinate the whole
substance of the enactment to a single word which itself is
ambiguous and inconclusive. The word " reasonable "' does
indeed imply instructed and intelligent care and deliberation,
the choice of the course which reason dictates. But the choice
is not necessarily that of an outsider. If I am right in my
view of the effect of the regulation, the choice can only be the
choice of the minister. 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. If in ordinary affairs I say that I reasonably
believe in the truth of certain facts or in the propriety of certain
conduct, I am prima facie adopting as my reason my own
judgment. If I mean to refer to some external yardstick I
should in general naturally say so expressly unless the contrary
was clear from other circumstances. '' Reasonable '' connotes
a quality or characteristic. Who is to decide on reasonableness
is a different matter which depends on the circumstances.
This disposes to my mind of the argument strenuously urged
on the basis of a number of decisions in which it has been
held that " reasonable "' necessarily in every case imports what
is reasonable in the judgment of a judge or a jury. That may
be so when the particular conduct is properly subject to
review in a court of law. When it comes before a court of
law the party impugned cannot be judge in his own cause.
Thus, the shopwalker who takes the protesting woman
customer into the manager's office as a suspected thief cannot,
when he or the store is sued for false imprisonment, simply
say as a sufficient answer that he thought he had reasonable
cause, On that issue the judge must decide. This is equally

A. C. AND PRIVY COUNCIL.

true in a case of malicious prosecution : Herniman v. Smith (1).
And when a lascivious youth under twenty-three years old

269

H. L. (E.)
1941

is charged with having carnal knowledge of a girl under Liversipce

sixteen, it is not for him but for the jury to decide if he had

v.
SIR JOHN

reasonable grounds for his belief that she was not under ANDERSON.
sixteen: Rex v. Banks (2), Rex v. Forde (3). Again, it is for Lord Wright.

the court to decide if a director sued under the Directors
Liability Act (or the corresponding section of the present
Companies Act) for untrue statements in a prospectus can
establish his defence which he cannot do by simply showing
that he thought he had reasonable grounds for believing
them to be true: Alman v. Oppert (4). That is the very
question in dispute which the court is required to decide.
Similarly the blackmailer is not the person to judge that
he had reasonable cause for the demand: Thorne v. Motor
Trade Association (5). Another class of illustrations of the
same principle is found in the numerous statutes giving to
constables a power of arresting without warrant, by words
like '' reasonably suspects,'' or "' has reasonable," or " good,"
"cause to suspect."" A collection of these is to be found in the
second (Hailsham) edition of Halsbury's Laws of England,
vol. ix., pages 72 to 94. In the present emergency regulations
similar powers to arrest are given by similar words. Clearly
in those cases the constable is not to be judge in his own
cause.

I need not multiply citations or give further illustrations of
what is so familiar in our law and has been for many, many
years, but the whole basis in these cases is that the jurisdiction
of the court is invoked to decide a triable issue within its
legal competence. What is reasonable in the particular case
is then determined by what the court or the jury thinks
reasonable. On the view that I have formed that there is
under reg. 18B no triable issue as to reasonableness for the
court, these authorities cease to be of any value. As the
administrative plenary discretion is vested in the Home

(1) [1938] A. C. 305. (4) [1901] 2 K. B. 576.
(2) {1916]\2 KK. B. 621. (5) [1937] A. C. 797.
(3) [1923] 2 K. B. 400.

I |

270

H. L. (E.)
1941

HOUSE OF LORDS } (1942)

Secretary, it is for him to decide whether he has reasonable
grounds and act accordingly. No outsider's decision is

Liversipce invoked, nor is the issue within the competence of any court.

v.
SIR JOHN
ANDERSON.

Lord Wright.

The legislature must vest the emergency discretion in someone,
and I have explained my opinion that the Secretary of State
has been chosen as being the only appropriate person. He alone
can have the materials for exercising the discretion. Like

other discretions it must involve some latitude of choice.

There is no hard and fast issue of fact, such as there is in the
trial of a specific charge on indictment. In our modern system
of government the Home Secretary, though he is not in these
matters amenable to the court, and though impeachment has
been obsolete for over a century, still is generally responsible
to Parliament quite independently of his duty under reg. 18B,
para. 6, to report to Parliament at least once a month as to
the action he has taken, including the number of persons
detained and the number of cases each month in which
he has declined to follow the advice of the committee, which
is some check, though it may be said that this is not a very
effective check, because he is not required to give the names
of those detained. But, if the sense of the country was
outraged by the system or practice of making detention orders,
or, indeed, by any particular order, it could make itself
sufficiently felt in the Press and in Parliament to put an end
to any abuse and Parliament can always amend the regulation.

It was, however, contended on behalf of the appellant that
a different construction must be adopted by reason of com-
paring the language of reg. 18B in its present form with its
language when it was originally made on November 23, 1939 (St.
R. & O., No. 1681). Counsel for the appellant knew English law
too well to contend that they were entitled to refer to what passed
in debate in the House of Commons or the House of Lords.
That is clearly inadmissible, if, indeed, anything relevant was
said on the point in Parliament about which I know nothing.
In Local Government Board v. Arlidge (1), Lord Haldane L.C.
said, in reference to a conflict of opinion whether guidance was to
be found in the analogy of procedure in a court of law: '"' Which

(1) [r915] A. C. 130.

A.C. AND PRIVY COUNCIL.

"of these opinions was right can only be determined by
"referring to the language of the legislature. Here, as in
"other cases, we have simply to construe that language and
"to abstain from guessing at what Parliament had in its
"mind, excepting as far as the language enables us to do
"so." In Assam Railways and Trading Co., Ld. v. Inland
Revenue Commissioners (1) it was observed, "It is clear
"that the language of a minister of the Crown in proposing
"in Parliament a measure which eventually becomes
"law is inadmissible.' But an earlier measure which is
superseded by the measure in question may be referred
to as a historical fact and as giving information as to some
evil or defect which was being remedied. The point which
was emphasized by the appellant in this appeal was that the
language used in the earlier form of the regulation was different
in that it omitted the word " reasonable.'' The clause was:
"The Secretary of State, if satisfied with respect to any
"particular person that with a view to preventing him from
"acting in any manner prejudicial to the public safety or the
"defence of the realm it is necessary to do so may make an
"order.'"' It is, as I apprehend, not contested that under this
earlier form of the regulation the matter was left to the
discretion of the Secretary, but it was contended that the
change from,' if satisfied '' to "if he has reasonable cause
"to believe "' made all the difference and converted the plenary
power of the Secretary into a power the exercise of which

27%

H. L. (E.)

1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Wright.

was subject to the judgment of a court of law. Such, it was ~

said, was the compelling force of the word " reasonable "' that
by itself it overrode every consideration, however peremptory,
_ and that it inexorably excluded the idea of a merely executive
discretion and introduced the opinion of a court instead. I
have already rejected that construction of the actual language
in the present form of the regulation. The actual language is
the acid test, and I see no ground for attaching so much weight
to so slight a difference in words. " Satisfied'? must mean
"reasonably satisfied." It cannot import an arbitrary or
irrational state of being satisfied. I find the distinction

(1) [1935] A. C. 445, 458.

272

H. L. (E.)

1941

LIVERSIDGE
v,

SIR JOHN

ANDERSON.

Lord Wright.

HOUSE OF LORDS [1942}

between "' reasonably satisfied' and "has reasonable cause
"to believe'' too tenuous. The original reg. 18B was very
much slighter and shorter in all respects. That is at once
apparent by comparing the words I have quoted from it
with the words of the later edition of the regulation. There
was nothing in the former corresponding to paras. 4, 5 and 6
of the latter, which are obviously important safeguards for
the objector. I do not find in the later edition any indication
of evils to be cured, but, if defects are to be remedied, it was to
be done by extending the Home Secretary's power on the one
hand, and on the other enlarging the specified safeguards of the
subject. It does not in terms provide for review by the court.

In my opinion, if it was ever intended to make so drastic
a change in the whole scheme as to make the Home Secretary's
grounds of belief examinable by a judge, it should and would
have been enacted by express words. I attach little importance
in this context to the question whether the words used are
"satisfied '' or ''has reasonable cause to believe." For instance,
both phrases seem to be used indifferently in para. 14 of reg.
18B which was added on May 22, 1940. Nor can I derive any
light from comparing or contrasting the use in different places
of these regulations of phrases like " it appears,"' '"' is satisfied,"
"has reasonable cause." This collection of regulations is more
like a fasciculus of different enactments, many made at
different dates, than a single statute. Even in the same
statute the same word may be used in different senses at
different places, as was recently held by this House in Barnard
v. Gorman (1). It is also old and familiar law that words
which in one statute are given a particular meaning are not
necessarily to be construed when they are found in another
statute as having the same meaning. This principle of
construction is discussed in Cox v. Hakes (2), especially by
Lord Halsbury L.C. (3). The present form of reg. 1r8B is
different in material particulars from the original form, and
must be construed as it stands. I think the correct con-
struction is that which I have put on it.

(1) [1941] A. C. 378, 384. (3) Ibid. 516, 517.
(2) (1890) 15 App. Cas. 506.

A. C. AND PRIVY COUNCIL.

Finally the principles applied by this House in Rex v.
Halliday (1) are, in my judgment, equally applicable to
reg. 18B.

I must shortly deal with two minor matters that have
been adverted to. In the first place, para. 8 of the regulation
does not, in my opinion, render lawful a detention which is,
apart from para. 8, unlawful and unwarranted by the Secretary's
powers. It is inserted to settle possible doubts as to prison law
and practice. The other matter for comment is the decision in
Eshugbayi Eleko v. Officer Administering the Government of
Nigeria (2), where the government claimed to exercise certain
powers, including deportation, against the appellant. The
appellant applied for a writ of habeas corpus, on the ground that
the ordinance relied on gave by express terms the powers it
contained only against one who was a native chief, and who had
been deposed, and where there was a native custom requiring
him to leave the area, whereas actually not one of these facts
was present in the case. It was held in effect that the powers
given by the ordinance were limited to a case in which these
facts existed. It was a question of the extent of the authority
given by the ordinance. That depended on specific facts,
capable of proof or disproof in a court of law, and unless these
facts existed, there was no room for executive discretion. This
authority has, in my opinion, no bearing in the present case, as
I construe the powers and duties given by the regulation.
There are also obvious differences between the ordinary admini-
strative ordinance there in question and an emergency power
created to meet the necessities of the war and limited in its
operation to the period of the war. The powers cease with the
emergency. But that period still continues and, it being
assumed that the onus is on the respondents in this action of
unlawful imprisonment, the onus is sufficiently discharged,
in my opinion, by the fact of the order having been made
by a competent authority within the ambit of the powers
entrusted to him and being regular on its face.

I agree with the decision of the courts below and am of
opinion that the appeal should be dismissed.

(1) [r917] A. C. 260, (2) [1931] A. C. 662.

A.C. 1942. 3 T

273

H. L. (E.)
IQ4I

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Wright.

274

H. L. (E.)
1941

umes
LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Romer.

HOUSE OF LORDS [1942]

Lorp Romer. My Lords, the decision of this appeal must,
as it seems to me, turn ultimately upon the true meaning of
a few words in para. 1 of reg. 18B of the Defence (General)
Regulations made under the Emergency Powers (Defence)
Acts, 1939 and 1940. The clause is as follows: "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."'

The question of construction arising under the regulation is
this. Before an order can be made by the Secretary of State
is it necessary that there should in fact exist reasonable
grounds for his belief, or is it sufficient that there are grounds
for his belief that appear to him to be reasonable? The
form in which that question is brought before your Lordships
for decision in the present case is somewhat unusual. The
appellant is a gentleman who, ever since May 29, 1940, has
been detained in Brixton Prison by reason of an order dated
May 26 and purporting to have been made under the regulation
by Sir John Anderson when Home Secretary. The order is
prefaced by a recital as follows: "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."' On March 14,
1941, the appellant began this action as plaintiff against
Sir John Anderson as the first defendant and Mr. Morrison
(who had succeeded Sir John as Home Secretary on October 4,
1940) as second defendant, claiming as against both defendants
damages for false imprisonment and as against Mr. Morrison
an injunction restraining him from continuing the imprisonment
of the appellant. In due course the appellant delivered his
statement of claim. In it he stated that Sir John Anderson
had by a "' document " dated May 26, 1940, and "' expressed ''
to be a detention order under the regulation ordered and
directed him to be detained. He then alleged that in

A. C. AND PRIVY COUNCIL.

consequence and by reason of the said order and direction he
had been and still was detained and imprisoned and that

275

H. L. (E.)
1941

since October 4, 1940, his detention and imprisonment had Liversipce

been continued by Mr. Morrison who refused to release him.
He concluded his allegations as follows (para. 6): ''In the
"premises the defendants have and each of them has caused
"and procured the unlawful detention and imprisonment of
"the plaintiff and the second named defendant continues and
"intends to continue the same." It is to be observed that
inasmuch as the appellant is plainly alleging that he is detained
in consequence and by reason of the order of Sir John Anderson
given by the document expressed to be an order under the
regulation, his assertion that his detention was and is unlawful
must necessarily mean that the document was not a valid
order. He does not, however, state in what respect the
document is invalid and on that pleading it would have been
open to him to attack it upon several grounds, as, for example,
that the regulation was ultra vires, or that Sir John did not
honestly believe that the appellant was of hostile associations
and that by reason thereof it was necessary to exercise control
over him, or that, if Sir John did so believe, there did not
exist in fact any reasonable grounds for such belief. It might
indeed have been the appellant's case, for all that appears to
the contrary on the statement of claim, that he was attacking
the validity of the order on the ground of non-compliance by
the Home Secretary or the chairman of the advisory committee
with the duty imposed on them respectively by cl. 4 and 5
of reg. 18B. In these circumstances the respondents might
reasonably have applied for particulars of the alleged invalidity
of the order. They did not do so, however, and delivered
their defence which contained among others the following
paragraphs: "'(3.) The defendants admit that the first named
'defendant ordered that the plaintiff should be detained under
"reg. 18B of the Defence (General) Regulations, 1939. (5.)
"None of the allegations contained in para. 6 of the statement
'"'of claim is admitted... ."

Thereupon the appellant issued a somewhat remarkable
summons. He asked by it that para. 3 of the defence should

3 eZ

v.
SIR JOHN
ANDERSON.

Lord Romer.

276

H. L. (E.)

1941

LIVERSIDGE
Uv.

SIR JOHN

ANDERSON.

Lord Romer.

HOUSE OF LORDS [1942)

be struck out on the grounds that it purported to admit
something that was not pleaded in the statement of claim.
He asked alternatively that the respondents should be ordered
to give the following particulars of such para. (a) of the grounds
on which Sir John Anderson had reasonable cause to believe
the appellant to be a person of hostile associations and (6) of
the grounds on which Sir John Anderson had reasonable cause
to believe that by reason of such hostile associations it was
necessary to exercise control over the appellant. But para. 3
of the defence contained no allegation, express or implied,
that Sir John Anderson believed the appellant to be a person
of hostile associations or believed that by reason of his hostile
associations it was necessary to exercise control over him.
The paragraph merely contained an admission that Sir John
Anderson had ordered the appellant to be detained under
reg. I8B. Nor was there any ground that I can see for
striking it out. The master very properly dismissed the
summons, and the appeal against his order was dismissed by
Tucker J. The appellant then appealed to the Court of
Appeal. Before that court the appellant abandoned his claim
to have para. 3 of the defence struck out, but he obtained
leave to amend his summons by asking that the particulars
should in the alternative be given under para. 5 of the defence.
There was some sort of justification for seeking this alternative
relief inasmuch as the refusal to admit that the detention of
the appellant was unlawful impliedly asserted that it was
lawful, and, accordingly, that there were in fact reasonable
grounds for the belief of the Home Secretary recited in the
order, assuming that, according to the true construction of
the regulation, the existence in fact of such reasonable grounds
was essential to the validity of the order. On the pleadings
as they stood, however, there was nothing to indicate that the
appellant was attacking the validity of the order on the want
of such reasonable grounds, and, if he were not, the existence
or non-existence of those grounds was not an issue in the action.
But the appellant's summons might, perhaps, be regarded as
serving the double purpose of giving particulars of his statement
of claim, and of asking for particulars of the defence. The

A. C. AND PRIVY COUNCIL.

Court of Appeal must, I think, have so regarded it, for they
proceeded on the footing that the existence or non-existence
in fact of such reasonable grounds was put in issue by the
pleadings and merely addressed their minds to the question
whether on the trial of that issue the onus of proof would
lie on the appellant or on the respondents. The court decided
that it would lie on the appellant and dismissed the appeal
solely upon that ground.

My Lords, it is, I think, apt to lead to confusion if the
question be regarded as one of onus. The appellant having
been detained by or by the direction of the respondents, the
onus of justifying the detention clearly lies on them. The
real question to be decided is how that onus is to be discharged.
Is it discharged by production of the order purporting to be
made by Sir John Anderson under the regulation, or must the
respondents prove in addition that the order was justified in
the circumstances? The Court of Appeal decided that mere
production of the order was (in the first instance at any rate)
sufficient. "If at the trial,' said MacKinnon L.J., ''the
"plaintiff merely proved that he was detained in prison by
"an order of the first defendant and nothing more, and if the
"defendants then proved that he was detained by an order
"issued pursuant to the regulation and signed by the first
"defendant .... and if that was the whole of the evidence
"we think there must be judgment for the defendants."

If the Court of Appeal were right in thinking that mere
production of the order and proof of the signature of Sir John
Anderson would sufficiently discharge for the time being the
onus that lay on the respondents of justifying the detention,
the appellant's application for particulars at this early stage
of the action was rightly dismissed. But even if the view
entertained by the Court of Appeal as to the production of
the order be accepted, it would merely result in postponing
to a later date the decision of the crucial question in the case.
For it is obvious that at the trial the appellant would not be
content with merely proving that he was detained in prison.
He would assuredly call some evidence in support of his case
that he was not a person of hostile associations, and thereupon,

277

H. L. (E.)

1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Romer,

278

H. L. (E,)

) 1941
LIVERSIDGE
v.

SIR JOHN
ANDERSON.

Lord Romer.

HOUSE OF LORDS [1942)

as the Court of Appeal foresaw, the respondents might, on
one construction of the regulation, have to call rebutting
evidence, and the further trial might even have to be postponed
if such evidence proved embarrassing to the appellant by way
of surprise or novelty. "Conceivably,"' added MacKinnon L.J.,
"in a proper case, the judge might at that stage make some
"order by way of particulars of the allegations of the
'"'defendants.'' Sooner or later, therefore, and in some form
or another, the question would have to be decided whether
the respondents could be compelled to disclose the grounds
on which the belief of Sir John Anderson was founded, in
other words, the question whether before an order can be
made under the regulation there must exist in fact reasonable
grounds for the belief of the Home Secretary on which the
order is founded or whether it is sufficient that he bona fide
believes that there are such grounds. If the latter construction
is to prevail, no order for particulars such as the appellant
seeks in this case can be made. For, if at the trial the Home
Secretary gives rebutting evidence to the effect that, in his
opinion, there were reasonable grounds for his belief, his
statement, being merely a statement as to his opinion, must
necessarily have to be accepted unless it can be shown that
he was not acting in good faith, and the onus of showing this
would lie upon the appellant. The materials on which the
Home Secretary founded his opinion would be wholly irrelevant
and could not be inquired into by a court of law. The question
what is the proper construction of the regulation, a question
that does not appear to have been discussed in the Court of
Appeal, is, therefore, one of considerable importance: for the
considerations to which I have just referred will apply to the
case of every person who is detained by an order made under
the regulation, whether he seeks to question the validity of
the order by an action for false imprisonment or by an
application for a writ of habeas corpus.

My Lords, that this question is not only of importance
but is also one of considerable difficulty appears sufficiently
from the fact that it has given rise to a difference of
opinion among your Lordships. But after giving the

A. C. AND PRIVY COUNCIL.

matter my most earnest consideration I have come to the
clear conclusion that the construction for which the
respondents are contending must be accepted. The
arguments in favour of the other construction addressed
to this House as well by the counsel for the appellants
in the present case as by the counsel for the
appellants in the case of Greene v. Secretary of State for Home
Affairs (1) are undoubtedly of considerable force, but to
accede to them would, or might in certain cases, lead to a
result that neither Parliament nor the framers of the
regulation could by any possibility have intended. Take,
for instance, the case of a person against whom an order for
detention has been made because the Secretary of State
believes him to have been recently concerned in acts
prejudicial to the public safety or the defence of the realm.
If that person brings an action for false imprisonment or
moves for a writ of habeas corpus the Secretary of State may
be placed in the dilemma of having to make public information
the disclosure of which may imperil the security of this
country or of having to refuse to disclose it with the result
that the person detained, who may be a dangerous " Fifth
"Columnist,'"' will be released and set at liberty to continue
his traitorous activities. For, if the question whether the
Secretary of State had reasonable grounds for the belief on
which his order was founded is one for a court of law to
determine, it is plain that the court must be placed in full
possession of all the relevant facts, and if some of those facts
are withheld from it, even though it be by reason of public
policy, it will have no option but to say that no reasonable
grounds for his belief have been shown to exist, and the
release of the detained person will follow as a matter of course.
The Emergency Powers (Defence) Act, 1939, and the regulation
will in that particular case have failed to remedy the mischief
against which they were designed. What that mischief was
sufficiently appears from s. 1, sub-s. 1, of the Act. So far
as is material for the present purpose, it is in these terms:
'His Majesty may by Order in Council make such regulations
(1) Post, p. 284.

279

H. L. (E.)
1941

LIVERSIDGE
v.
SIR JOHN
ANDERSON.

Lord Romer.

280

HAL.(B))
1941
LIVERSIDGE

v.
SIR JOHN
ANDERSON,

Lord Romer,

HOUSE OF LORDS {1942)

''as appear to him to be necessary or expedient for securing
"the public safety, the defence of the realm... . and the
'efficient prosecution of any war in which His Majesty may be
"engaged." Moreover, Part I. of the regulations made in
pursuance of the section, in which Part regulation 18B is to be
found, is entitled "' Provisions for the Security of the State."
It was, indeed, said on behalf of the appellant in Greene's
case that where an Act of Parliament is capable of more
than one construction, the courts will adopt that construction
which is the least likely to lead to an invasion of the liberty
of the subject. That in general is a very salutary rule, but
we are dealing here with an Act passed and regulations made
under it in times of a great national emergency, and in view
of this circumstance and of the objects which that Act and
those regulations so plainly had in view, the courts should,
in my opinion, prefer that construction which is the least
likely to imperil the safety of this country. In this connection
it is not inapposite to quote the following passage from
the speech of Lord Atkinson in Rex v. Halliday (1):
"" However precious the personal liberty of the subject may
"be, there is something for which it may well be, to some
"extent, sacrificed by legal enactment, namely, national
"success in the war or escape from national plunder or
"enslavement."

It was urged on behalf of the appellant that there is no
reason to fear that the Secretary of State will ever find himself
placed in the dilemma to which I have referred, inasmuch
as the trial of an action for false imprisonment or the pro-
ceedings in habeas corpus can always be heard in camera.
So they can, but I am not at all impressed by this argument.
Where the information in the possession of the Secretary
of State is of such a nature that this country might be
seriously prejudiced if it came to the ears of the enemy, the
serious risk of leakage would inevitably deter him from
disclosing it. A man who is willing to risk his liberty and his
life in maintaining a traitorous intercourse with the enemy
is not likely to be deterred from passing on such information

(1) [1917] A. C, 260, 271.

A. C. AND PRIVY COUNCIL.

281

by the penalties attaching to a disclosure of what has taken HLL. (E)

place at proceedings in camera.

1941

It was strongly urged on behalf of the appellant that the Liversmecr
expression "if he has reasonable cause to believe' and Str oat
similar expressions are well known to English law which has ANDERson.
consistently regarded them as postulating the existence in Lord Romer.

fact of reasonable grounds for belief. I will assume that this
is so, but the context and circumstances in which they are used
may force one to the conclusion that even the most familiar
words and expressions are used in other than their ordinary
meaning, and this is the case here. For the person who is to
have reasonable cause to believe is not some minor official
holding a subordinate position. He is the Secretary of State.
The acts, moreover, concerning which the belief is to be
entertained are not some infractions of our municipal law
committed in times of peace. They are (among others)
acts prejudicial to the public safety or the defence of the realm
committed in a time of grave national danger and of such a
nature that "by reason thereof" it is necessary to exercise
control over the person suspected of committing them.
Whether or not the acts of some individual appear to be of
this description is a question of which the Secretary of State must
plainly be a better judge than any court of law can be. '"'It
"seems obvious" said Lord Finlay L.C. in Rex v. Halliday (1),
"that no tribunal for investigating the question whether
"circumstances of suspicion exist warranting some restraint
"can be imagined less appropriate than a court of law." I
respectfully agree. I cannot believe that the legislature or
the framers of the regulation ever intended to constitute
the courts of this country the ultimate judges of the matters
in question. On the contrary, there are to be found in the
language both of the statute and the regulation indications
that the final determination of all such matters was to lie
with the Secretary of State alone. By s. 1, sub-s. 2, of the
Act, for instance, it is provided among other things that
regulations may be made for the detention of persons whose
detention '' appears to the Secretary of State to be expedient

(1) [1917] A. C. 260, 269.

282

H. L. (E.)
1941

LIVERSIDGE
Uv.
SIR JOHN
ANDERSON.

Lord Romer,

HOUSE OF LORDS [1942)

"in the interests of the public safety or the defence of the
"realm." It does not, of course, follow that, because there
was authority given to clothe the Secretary of State with this
wide discretionary power, the regulation has in fact done so.
But the sub-section indicates the views of the legislature as
to the powers that ought to be given him to secure the safety
of the realm and it is not unreasonable to suppose that the
framers of the regulation desired to give full effect to these
views. It is, moreover, to be observed in this connection
that whereas paras. 3, 4 and 5 of reg. 18B provide for the
setting up of one or more advisory committees to whom
a person aggrieved by the making of an order against him can
make his objections, it is made plain by para. 6 that theSecretary
of State need not follow the advice given by any such
committee. It is also to be noticed that the words of para. 1
are not "if there zs reasonable cause to believe," but, " if
"the Secretary of State has reasonable cause to believe." It
is, of course, true, as has been said by my noble and learned
friend Lord Atkin, that the words "if a man has a broken
"ankle "' do not and cannot mean "'if he thinks he has a broken
"ankle," but the regulation is not dealing with the state
of a man's body. It is dealing with the state of man's
belief, in other words with the state of his thoughts. The
words "if a man has a belief that a certain thing exists "'
necessarily mean "if he thinks that the thing exists,' and
the word "'has'' may well have been used in the regulation
to indicate that it is throughout concerned with the
impression that is created on the mind of the Secretary of
State and not with the impression they may produce on a
court of law. Not only is the belief to be his. The estimate
of the reasonableness of the causes that ae induced such
belief is also to be his and his alone.

The attention of your Lordships was very properly drawn
by way of contrast to the language used in some of the other
regulations, such, for instance, as the first para. of reg. 2C, as
showing that when it was intended to leave a decision to the
unfettered discretion of the Secretary of State the regulations
did so in plain terms. There would be more force in this

A. C. AND PRIVY COUNCIL. 283

argument if all the regulations were contained in one Act of H.L. (E,)
Parliament or in a set of regulations all framed at one time, 941
though, in view of the fact that different language is frequently Liversiper
employed in the regulations to express the same thing, Ishould Toke
not even in that case have been greatly impressed by it. But ANDERson.
the regulations and even some of the clauses in the same _ Lord Romer.
regulation came into existence at different times and for all
that I know to the contrary were the product of different
hands. In these circumstances it is impossible to infer that
a difference in the language used in two regulations necessarily
indicates an intention to express two different meanings.

My Lords, for these reasons I would dismiss this appeal.

Lorp ATKIN. Mr. Holmes, nothing has been said so far
about costs. This is a matter of very general importance,
and I think the majority of their Lordships—I am a third
party in this respect—are rather of opinion that it is not a
case in which costs should be asked for.

Holmes for the respondents. If your Lordship pleases ; of
course, in those circumstances I should not dream of asking
for them on behalf of the Home Secretary. I do not know,
my Lords, whether I ought to say that I did notice that my
Lord Maugham's speech ended by proposing the motion that
the appeal should be dismissed with costs. Possibly that had
escaped your Lordship's notice; but perhaps that can be
rectified.

Lorp ATKIN. It had not escaped my notice, and that is
the reason I put the question to you.

Holmes. If your Lordship pleases.
Appeal dismissed.