Liversidge v Anderson [1942]

Liversidge v Anderson [1942] AC 206 is a landmark case in British constitutional and administrative law that powerfully illustrates the tension between civil liberties and executive power during a time of national emergency.

At the heart of the case was the question of how far the courts should defer to executive discretion when national security is invoked. Specifically, the case concerned Regulation 18B of the Defence (General) Regulations 1939, which allowed the Home Secretary to detain individuals if he had “reasonable cause” to believe they had hostile associations. Sir John Anderson, the Home Secretary at the time, exercised this power to detain Jack Perlzweig (also known as Robert Liversidge) without trial and without disclosing the reasons for the detention. Liversidge challenged his detention, arguing that the courts should scrutinise whether there was, in fact, a reasonable cause, judged by an objective standard.

The House of Lords, in a majority decision, upheld the Home Secretary’s action, ruling that the courts could not inquire into the factual basis of the minister’s belief. The majority interpreted the phrase “has reasonable cause to believe” as meaning that the Secretary of State personally believed he had such cause, which is an inherently subjective test. The Lords emphasised that in times of war, Parliament must be taken to have intended to vest broad discretionary powers in the executive, and the judiciary must not interfere in matters of national security which fall outside their institutional competence. Viscount Maugham and Lord Macmillan, among others, stressed the need for judicial restraint and the promotion of legislative efficacy during wartime. They effectively concluded that so long as the Home Secretary asserted that he held a belief in good faith, his discretion was not subject to judicial review.

However, the case is most famous today for the powerful dissent of Lord Atkin, who rejected the majority’s interpretation as dangerously deferential. Atkin argued that the words “has reasonable cause to believe” clearly imposed an objective standard, one that could and should be assessed by the courts. He warned that accepting the minister’s belief without scrutiny undermined the rule of law and allowed for arbitrary detention. Atkin famously criticised his fellow judges for being “more executive-minded than the executive,” accusing them of distorting the plain meaning of the regulation. He likened their reasoning to the whimsical logic of Humpty Dumpty in Through the Looking-Glass, who claimed words meant only what he chose them to mean. For Atkin, the judiciary had a constitutional duty to stand between the individual and the state, even during times of crisis. His dissent is now seen as a cornerstone of modern British public law and judicial independence.

Although the majority view prevailed at the time, Liversidge v Anderson has not aged well in British legal thought. Later decisions and commentary have largely discredited the majority judgment. In Ridge v Baldwin, Lord Reid referred to the case as a “very peculiar decision”, and in IRC v Rossminster Ltd, Lord Diplock admitted that the majority had been “expediently and, at that time, perhaps, excusably, wrong”. The Privy Council in Nakkuda Ali v Jayaratne also declined to treat the case as a general precedent. Over time, Lord Atkin’s dissent has become the dominant constitutional narrative. His insistence that the courts must not abandon the rule of law in times of emergency has been affirmed in numerous subsequent decisions. Even so, Lord Denning in ex parte Hosenball [1977] later echoed the majority’s wartime caution by upholding judicial deference to ministerial discretion in national security matters. Most recently, the UK Supreme Court drew heavily on Lord Atkin’s dissent in its January 2010 judgment regarding the executive’s power to freeze terrorist assets, leading to the enactment of the Terrorist Asset-Freezing etc. Act 2010. 

Thus, although Liversidge v Anderson is often cited as a cautionary tale of judicial abdication, it is Lord Atkin’s lone voice of dissent that endures as a guiding principle in modern British constitutionalism, which is commonly seen as an enduring reminder that the rule of law must not give way to expediency, even in wartime.