LIVERSIDGE v ANDERSON

Reasonableness within the confines of legislation and determination of that principle, fall into varying categories; while national security under times of war, further compounds the need for subjective action, when those bestowed executive powers must act to prevent dissent without fear of reprisal, or leave themselves undermined through abuse of legal recourse.

Acting upon the terms prescribed within the Defence (General) Regulations 1939, it was decided by the Secretary of State, to issue a writ that served to detain a suspected ‘threat’ while the country was at war with Germany.

For reasons undisclosed to the appellant on principle of national safety, the individual was held in indefinite detention in Brixton prison, as an act of subversion against known factions operating to weaken the country’s defences.

After almost a year, the appellant sought to challenge the validity of the writ, contesting that his imprisonment was on fraudulent grounds, and that the above legislation conferred limited powers of issue that on this occasion, were in need of evidential support over subjective opinion.

In addition to this, he requested that there ought to be proven grounds for his incarceration, and that those reasons needed to determine the eligibility to hold him.

In the first hearing, the court dismissed his claim but granted leave to appeal; after which, the Court of Appeal also refused to support any action taken against an executive order; however, they did allow appeal to the House of Lords for purposes of exploration.

As foundation of the appeal, section 18B of the regulations read that: 

“If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.”

Defence (General) Regulations 1939

This particular aspect of legislation was now left to the House to examine in detail before establishing if, under circumstances where no written evidence had been submitted to justify the writ, the Secretary of State was liable to produce such material as to satisfy the restricted liberty of an individual innocent of any criminal wrongdoing.

While in the immediate sense it ran risk of appearing beyond reproach and without just cause, the judges fully appreciated that in times of conflict it was ultra vires for the courts to expect confidential information to be brought into view to resolve what was essentially a claim for damages under the presumption of absolute civil liberty.

Despite fully appreciating the need for personal satisfaction and the variances of reasonableness within numerous forms of English law, it was felt that within a position shouldering tremendous responsibility for the safety and welfare of both the state and the public, the phrase “has reasonable cause” was ultimately to be interpreted as subjective to the Secretary of State, and not one for those bound to his decision, before reassuring the parties that:

“In no case are ordinary legal rights to be affected unless and then only to the extent that Parliament has enacted to the contrary.”