The House took
time for consideration.
1941. Nov. 3.
VISCOUNT MAUGHAM.
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 predecessor 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 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 (1823) 1 B & C 163, 169 . 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 detention of the appellant
above referred to. If it is
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. Paragraph 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 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 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 the statement
of claim is admitted.”
It is desirable to state, so far as
relevant, the Act of Parliament 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 important 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 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 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.”
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 (b) 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 maintenance 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 possession or use by that person of any specified
articles; (b) imposing upon him such restrictions as may
be specified in the direction in respect of his employment or business, in
respect of the place of his residence, and in respect of his association or
communication with other persons; (c) 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 opportunity 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, to make 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 the chairman sufficient to enable him to present his
case.
“(6.) The Secretary of State
shall make a report to Parliament 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 (
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. 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 Parcq
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 that the good faith of the Secretary of State is not
challenged. The judgment proceeded as follows: “Put in another way, if the
plaintiff admits, or it is proved, that the plaintiff was detained by an order
purporting or expressed to be issued under the regulation, and duly signed as
such, the burden is on the plaintiff, if he is to claim damages for false
imprisonment, 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. (1.), in an
analogous case entitled Rex
v. Secretary of State for Home Affairs. Ex parte
Lees [1941] 1 KB 72 . 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 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
production of an order signed by the Secretary of State is not a sufficient
prima facie defence to the action of false imprisonment 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 and that by reason thereof it is necessary to exercise
control over him: Now, therefore, I, in pursuance of the power 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.”
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 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
[1917] AC 260, 270 , I hold that the suggested rule has “no relevance in dealing with an executive
measure by way of preventing a public danger” when the safety of the state is
involved. 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
[1917] AC 260 , 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. 18B 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 a
context, the prima facie meaning of such a phrase as “if A.B. has reasonable
cause to believe” a certain circumstance or thing, it should be construed as meaning “if there 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.
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 (
b) 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 investigate the question whether there were grounds for
a reasonable man to believe some at 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 can make his order for detention, is left to his sole
discretion without appeal to a court, it necessarily follows that the same is
true as to all the facts which he must have reasonable cause to believe.
Secondly, it is admitted that the
Home Secretary can act on hearsay and is not required to obtain any legal
evidence in 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.
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.)), and that 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, it would have been to a special tribunal with
power to inquire privately into all the reasons for the Secretary's action, but
without 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 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. 1A, 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 fall to 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 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, 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
[1893] 2 QB 75
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 [1942] 1 KB 87 , and I could not usefully add anything to what they have
said.
In my opinion, the present appeal
should be dismissed with costs and I move your Lordships
accordingly.
LORD 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 Post, p 284 .
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 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 to which
the subject is party, it cannot be reversed on any appeal, and there is no limit
to the period for which the detention may last. The material words of the
regulation are as follows: “If the Secretary of State has reasonable 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 Greene 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 the only implied condition is that the Secretary 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 surely incapable of dispute
that the words “if A has X” 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 broken ankle or a legal right. If its meaning is the
subject of dispute as to legal rights, then ordinarily the reasonableness of the
cause, and even the existence of any cause is in our law to be determined by the
judge and not by the tribunal of fact if the functions deciding law and fact are
divided. Thus having established, as I hope, that the plain and natural meaning
of the words “has reasonable cause” imports the existence of a fact or state of
facts and not the mere belief 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 arrest is entitled to
succeed if he pleads and proves that the imprisonment was legally justifiable:
Allen
v. Wright (1838) 8 C & P 522 ; that he must show the cause of suspicion so that the court may
judge of the reasonableness: Mure
v. Kaye (1811) 4 Taunt 34 ; Stammers
v. Yearsley (1833) 10 Bing 35 ; Haynes
v. Mewis (1826) 5 LJ (OS) KB 47 ; that a man directing a constable to act on a suggestion of
felony is bound to show probable cause of suspicion: M'Cloughan
v. Clayton (1816) Holt NP 478 ; 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 (1852) 21 LJ (QB) 265, 267, 268 ; 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 (1854) 23 LT (OS) 324 ; 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 (1827) 6 B & C 635 ; and a more recent affirmation of the same principles in Wallace
v. W. H. Smith and Son, Ld.
[1914] 1 KB 595 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. I 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. 19: 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.”
“Children and Young Persons Act,
1933,s. 13: …. a constable may arrest without warrant any person …. whom he has
reason to believe has committed an offence if he believes such person will
abscond.” Note the two beliefs, one qualified, the other not.
“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 …. who is 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 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 against any person, rich or poor, powerful or weak,
including any member of the executive, whether Secretary of State or not. A
further use of the words is to be found in the Directors Liability Act, 1890, s.
3, sub-s. 1 (a), by which it is provided that a director of a company is liable
for untrue statements 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. (1.)); so in regs. 14B, 16A,
18A, 21, 40B, 43B.
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,” etc. 2C (2.): “It shall be a
defence …. to 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 …. a …. homing
pigeon to which there is attached 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 ground 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” (
b) 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 (
b) 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.
“18BB (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.”
“25 (1.) Where, as respects any
premises, it appears to any officer of police of a rank not lower than that of
inspector …. that by reason of the fact …. (d) that there
is reasonable ground for believing that a source of danger exists on the
premises by reason of the presence thereon of unexploded ammunition,” the
inspector may take steps, etc. “(2.) Any 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 ….
which the chief officer of police has reasonable grounds for suspecting to be
premises subject to the regulation.” The difference between (1.) 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.): If a justice of the
peace is satisfied by information on oath that there is reasonable ground for
suspecting [an offence] he may grant a search warrant. (2.) A person authorized
may search every person …. whom he has 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 ground 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.
“90 (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 (1.): Any article coming into
the possession of an executive authority …. which the authority has reasonable
ground for believing to be evidence of the commission 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 themselves 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. “(1A) If the Secretary of State has reasonable
cause to believe any person to have been or to be 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 (
b) 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.) “If 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 (
b) 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
imprisonment. 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 an objective condition to the power of the minister to
detain, whose existence must, therefore, in case of dispute be cognizable by a
court of law, what room is there for any other construction? I will deal with
the suggested inconvenience to the minister or possible prejudice to the
interests of the State later on. I
venture to quote the words of the present
Lord Chancellor in Barnard
v. Gorman [1941] AC 384 , 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. If 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
[1917] AC 260 , 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 recommendation 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 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 evidence 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 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 Greene 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 necessary 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 18B 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 control over you. Particulars.” Then follow six
paragraphs of particulars referring to his being concerned in the management 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 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 disclosure 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 [1941] 1 KB 72 , 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.
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 unconvincing 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 a man 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 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 (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright
in Barnard
v. Gorman [1941] AC 378, 393 : “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 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, (
b) 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. 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 judicial decisions cannot in such proceedings as the
present be questioned. My noble friend, Lord Macmillan, suggests that under a
more exacting system of pleading the appellant would have to aver the absence of
reasonable grounds on the part of the Secretary of State. The English system of
pleading 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 imprisonment was in the form adopted in the present case,
and the defendant had to plead his justification with particulars: Holroyd
v.
Doncaster 3 Bing 492 , 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 imprisonment
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 trustworthy 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 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: “I 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.
LORD MACMILLAN. 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 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:
“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 and that by reason thereof it is necessary to exercise control over
him: Now, therefore, I, in pursuance of the power 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.
“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.) 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 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 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.” 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 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 categorically 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 are conferred on him. For the appellant it was
maintained that the words of the regulation were clear and unambiguous. The
competency of the Secretary of State to make a detention order was, it was
argued, plainly subject to a condition precedent. There must exist in fact
reasonable cause for belief in certain things, quite independently of what the
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
construction 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 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 object the regulation was made. This appears clearly from the
terms of the empowering statute, the Emergency Powers (Defence) Act, 1939. By s.
1, 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 interferences 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 emergency power of detention is confided. The statute
has authorized it to be conferred on a Secretary of State, one of the high
officers of State who, by reason of his position, is entitled to public
confidence in his capacity and integrity, who is answerable to Parliament for
his conduct in office and who has access to exclusive sources of information. In
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 (1.) 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
[1916] 2 AC 77, 107 : “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
[1917] AC 260, 269 : “It seems obvious 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.” 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
interpretation 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.
The duty is imposed on the
chairman to inform the objector of the grounds on which the detention order has
been made and to furnish him with such particulars as are in the chairman's
opinion sufficient to enable him to state his case. I say nothing as to the
efficacy of this safeguard, for I do not know how it operates in practice, but I
emphasize the significance of its 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 responsibility 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.
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 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
[1917] AC 260, 271 . 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 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 interpretation of the regulation which I have reached the appeal must
be dismissed and I concur in the motion that that be its fate.
LORD WRIGHT. My Lords, this
appeal and the appeal which immediately followed it, Greene
v. Secretary of
State for Home Affairs Post, p 284 , 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 the order during his period of office as Home Secretary
and against his successor the second respondent who confirmed and continued it.
In form the proceedings under appeal simply involve an application for
particulars by the appellant of the grounds upon which the first respondent had
reasonable cause to believe the appellant to be a person of hostile 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
[1917] AC 260, 269 used in reference to the similar provision in the corresponding Defence of the Realm Regulations
made during the last war, “no tribunal for investigating the question whether
circumstances of suspicion exist warranting some restraint can be imagined less
appropriate than a court of law.” These conflicting contentions raised a
question of 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 subject, the only question is what is the precise extent
of the powers given. The answer to that question is only to be found by
scrutinizing the language of the enactment in the 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 (1941) 165 LT 120 , Tucker J. adopted in an action for unlawful imprisonment
substantially what I regard as the true construction 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 [1942] 1 KB 87 , the appeal in which follows this appeal. I shall in due course
examine that case which raises technical questions on the law 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 [1941] 1 KB 87, 98 , “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 Ibid 108 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
[1917] AC 260 , 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 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.
[1917] AC 260, 269 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 in by Lord Dunedin, who added Ibid 271 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 Ibid 271 , “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 to the present case, and, notwithstanding differences in
the particular enactments, furnish an important and direct precedent for the
conferring of powers to exercise preventive 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 administrative measures, the
legislative practice of substituting for the jurisdiction of the court that of a
specially constituted tribunal is well established and increasingly frequent,
particularly since the decision of this House in Local Government Board
v.
Arlidge [1915] AC 120 . The case dealt with closing orders under the Housing and Town
Planning Act, 1909. Lord Haldane L.C. Ibid 132 pointed out that in regard to these administrative 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 to the contrary. In reg.
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 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
[1917] AC 260 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 Columnists 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 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 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 background 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 sufficient 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
circumstances admit. I particularly rely in support of my conclusion on the
circumstance that the Secretary is entitled to decline to follow the recommendation or advice of the committee.
The responsibility is his alone.
Rut 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 true in a case of malicious prosecution: Herniman
v.
Smith [1938] AC 305 . And when a lascivious youth under twenty-three years old is
charged with having carnal knowledge of a girl under sixteen, it is not for him
but for the jury to decide if he had reasonable grounds for his belief that she
was not under sixteen: Rex
v. Banks [1916] 2 KB 621 , Rex
v. Forde [1923] 2 KB 400 . Again, it is for 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
[1901] 2 KB 576 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 [1937] AC 797 . 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 Secretary, it is for him to decide whether he has
reasonable grounds and act accordingly. No outsider's decision is invoked, nor
is the issue within the competence of any court. 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 comparing 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 [1915] AC 130 , 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 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
[1935] AC 445, 458 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 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 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. 1A
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 [1941] AC 378, 384 . 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 (1890) 15 App Cas 506 , especially by Lord Halsbury L.C. Ibid 516, 517 . The present form of reg. 18B is different in material
particulars from the original form, and must be construed as it stands. I think
the correct construction is that which I have put on it.
Finally the principles applied by
this House in Rex
v. Halliday
[1917] AC 260, 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
[1931] AC 662 , 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 administrative 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.
LORD 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 consequence and by reason of the said order and
direction he had been and still was detained and imprisoned and that since
October 4, 1940, his detention and imprisonment had 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
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 (
b) 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. 18B. 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 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, 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 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 Post, p 284 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 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
[1917] AC 260, 271 : “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 proceedings 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 by the penalties attaching to a disclosure of what has
taken place at proceedings in camera.
It was strongly urged on behalf
of the appellant that the expression “if he has reasonable cause to believe” and
similar expressions are well known to English law which has consistently
regarded them as postulating the existence in 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
[1917] AC 260, 269 , 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 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 the Secretary 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 is 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
have 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 argument if all the regulations were contained in one
Act of Parliament or in a set of regulations all framed at one time, though, in
view of the fact that different language is frequently employed in the
regulations to express the same thing, I should not even in that case have been
greatly impressed by it. But the regulations and even some of the clauses in the
same 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.