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.”

JACKSON v ATTORNEY GENERAL

The implementation of prohibitive statute designed to prevent the hunting of foxes with dogs, was a decision made by the ruling party in a time when the public had seen enough wanton killing to stamp it out for good.

Under traditional constitutional processes, the act of passing a bill required full agreement of the House of Commons, the House of Lords and the Monarchy.

However, on this occasion the Parliament Act 1949 allowed for the creation of the Hunting Act 2004 without the acquiescence of the House of Lords, which became a motion sparking tremendous outrage from those in favour of the ‘sport,’ and resulted in this application for judicial review.

In seeking the reversal of this unprecedented ban, the appellants (Chairman of the Countryside Alliance, a professional huntsman and a self-employed farrier) relied upon the mechanism used to establish the 1949 Act to undermine its legality and have the courts permanently remove it; however, in order to clarify how the argument gained merit, it is necessary to understand how the founding Acts came into existence.

The Parliament Act 1911 was first enacted so as to empower the House of Commons to pass certain Bills without the consent of the House of Lords (subject to a predetermined period of time); after which, the applicable Act would enter into force with equal effect to that which would have required their consent.

This Act was the inevitable product of a previous form of rule so dysfunctional, that without it, the country ran risk of complete collapse or civil revolt; therefore, it was not designed without a degree of resistance from certain quarters.

Many years passed, until the Parliament Act 1949 made some amendments to the 1911 Act; which while considered minor, reduced the period of time in which the House of Commons would need to wait before achieving Royal Assent and subsequent enactment.

This itself, was brought into effect using the terms of section 2(1) of the 1911 Act, which expressed that:

[T]he Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.”

The Parliament Act 1911

Therefore, despite not following the conventional methods of construction, the 1949 Act was without doubt, primary legislation and beyond reproach of those in opposition; as was the case when the Hunting Act 2004 was passed, as well as the War Crimes Act 1991, the European Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act 2000 before it.

However, in a bid to dismantle the 2004 Act, the appellants drew attention to the wording, which failed to include obligatory reference to “the Lords Spiritual and Temporal and Commons,” but instead used “Queen’s most Excellent Majesty by and with the advice and consent of the Commons in accordance with the provisions of the Parliament Acts 1911 and 1949,”; upon which, they claimed the legislation was merely secondary in effect and therefore invalid.

Having been dismissed in their first hearing, the appellants continued to the Court of Appeal, which followed suit, before allowing leave to the House of Lords.

Here, the principles of legislative power, along with the chequered history behind the 1911 and 1949 Acts, were clearly defined, along with express clarification of the meaning and purpose of legislation as below:

“[A] Bill is not there to inform, to explain, to entertain or to perform any of the other usual functions of literature. A Bill’s sole reason for existence is to change the law. The resulting Act is the law. A consequence of this unique function is that a Bill cannot set about communicating with the reader in the same way that other forms of writing do. It cannot use the same range of tools. In particular, it cannot repeat important points simply to emphasise their importance or safely explain itself by restating a proposition in di­fferent words. To do so would risk creating doubts and ambiguities that would fuel litigation. As a result, legislation speaks in a monotone and its language is compressed.”

Reiterating both the origins and validity of the 1911 and 1949 Acts, the House continued to illustrate that regardless of discrepancies of wording, the power and application of the Hunting Act 2004 remained as resolute as the 1911 Act and any before it; and so, it was with the greatest of respect that the appeal was uniformly dismissed, while the court reminded the parties that:

“[S]tatutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament.”

ASSOCIATED PROVINCIAL PICTURE HOUSES v WEDNESBURY CORP.

Acting ultra vires through the application of executive powers is not something alien to public authority decision-making, but it is equally important that those seeking legal review are clear as to exactly what has constituted a breach of their jurisdiction.

During the period following the second world war, there were three Acts that affected the opening times of cinematograph houses across the UK.

The first was the Cinematograph Act 1909, the second was the Sunday Entertainments Act 1932, and third was Defence Regulation 42B, which was introduced during the war, but remained effective until late 1947.

When it was decided by an issuing local authority to grant a trading licence to their local picture house, there came with it restrictions preventing any attendance by children aged below fifteen years of age, regardless of whether they were accompanied by an adult.

While appreciative of the opportunity to open on a day typically reserved for domestic pursuits, the appellants sought judicial review on grounds that such a restriction was self-defeating and thereby ‘unreasonable’.

As there were three Acts from which to rely upon, it was agreed that for the purposes of clarity the Sunday Entertainments Act was the most appropriate, and yet within the terms prescribed, section 1(1) provided that the issue of a licence was “subject to such conditions as the authority think fit to impose.” This, it was agreed, allowed the local authority to apply its discretion to the limitations of the permit, and so by extension, it had acted accordingly.

When heard in the first instance, the court dismissed the objections brought by the picture house, and after a brief but considered review of that decision, it was reiterated that while the courts are able to question the legal validity of executive decisions, they are not equipped nor predisposed, to challenge the illegitimacy of those limitations, unless the body in question has applied it powers outside the boundaries of reasonableness, and in ignorance of required objectives.

Relying upon the relevant case history behind these matters, there was (despite strong opposition by the commercial vendors) no precedent upon which their argument could stand; and so, the court noted that it was important to hold in mind the scope of discretion afforded local authorities when following statute before taking legal action, while further reminding the parties that:

“[T]he court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority.”