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University College Dublin Law Review [Vol. 6

THE BRITISH CONSTITUTION, SOVEREIGNTY OF


PARLIAMENT,
AND THE RULE OF LAW: LIVERSIDGE VANDERSON REVISITED

Can V Yeginsu*

I. INTRODUCTION

Like all modem constitutions, the British Constitution attempts to


confer legitimacy on the exercise of power by ensuring a rational
allocation of such power. In a majority of states with written
constitutions, it is the constitutional document that defines the limits of
executive power. In the United Kingdom, by contrast, powers of
government remain unconstrained by a fundamental written document
and subject only to the will of Parliament. All law-making power derives,
not from the power conferring or delimiting constitutional document, but
from the sovereignty of the legislature: Parliament. In turn, the task of
giving meaning to Parliament's words and intentions falls to the courts.
The working of any constitutional order is most tested at times of
national and/or political crisis. When faced with a perceived emergency,
the executive branch of government often tries to resort to extreme,
arguably excessive, measures of control. It is at such times, to borrow
Lord Steyn's memorable phrase, that the 'the role of the courts [has been]
less than glorious' 1 often legitimating executive freedom of decision and
thereby abdicating an essential judicial function.
The decision of the majority in Liversidge v Anderson 2 is often
cited as one of these inglorious moments, and is best known for the
remarkable and now famous dissent by Lord Atkin. This article will argue
that the case's historical interest has often served to overshadow the real
constitutional significance of the majority decision. The events
surrounding the decision of the House of Lords are of course of
considerable interest, 3 but it will be shown that, apart from providing the

*Can V Yeginsu, BA (Oxon); Princess Royal Scholar of the Inner Temple; Eliza Jane
Proctor Fellow, Princeton University.
1 Steyn 'Legal Black Holes' (FA Mann Lecture 2003); Bingham 'Personal Freedom
and the Dilemma of Democracies' (Romanes Lecture University of Oxford October
2002).
2 [1942] AC 206. Viscount Maugham, Lord Macmillan, Lord Wright, and Lord
Romer. Lord Atkin was the sole vox clamantis in deserto.
3 Simpson In the Highest Degree Odious: Detention without Trial in Wartime Britain
(Clarendon Press Oxford 1991); Heuston 'Liversidge v Anderson in Retrospect'
(1970) 86 LQR 33-68.
20061 Liversidge v Anderson Revisited

correct interpretation of the contested provision, Lord Atkin's dissent also


stressed the constitutional implications of the majority's perverse
interpretation of the contested provision: namely that the decision allowed
the government both to ignore the will of Parliament and to violate the
rule of law as expounded by Dicey. Arguing that the judgment of the
majority was indeed incompatible with orthodox understandings of the
sovereignty of Parliament and the rule of law, the article will continue by
demonstrating a necessary structural incompatibility between these two
fundamental constitutional concepts. The article will conclude with a
brief discussion of the role that any Diceyan concept of the rule of law
may have today in relation to the doctrine of Parliamentary sovereignty.

II. STATUTORY (MIS)INTERPRETATION AND THE SOVEREIGNTY OF


PARLIAMENT
4
'Where laws do not rule, there is no constitution'

'Whoever hath an absolute authority to interpret any written or spoken


laws, it is he who is truly the lawgiver, to all intents and purposes,
5
and not
the person who first spoke or wrote them'

In Liversidge, the House of Lords had to interpret the wartime


Regulation 18b, made by Order, in Council under the authority of the
Emergency Powers (Defence) Act, 1939.6 The statute authorised the
government to make such regulations as 'appear [...] to be necessary or
expedient for securing the public safety' and it specifically authorised
regulations to be made 'for the detention of persons whose detention
appears to the Secretary of State to be expedient in the interests of the
7
public safety or defence of the realm.'
Regulation 18b provided:

If the Secretary of State has reasonable cause to believe any


person to be of hostile origins or associations or to have been
recently concerned in acts prejudicial to public safety or the
defences of the realm or in the preparation or instigation of
such acts and that by reason thereof it is necessary to exercise

4 Aristotle Politics(Bell and Daldy London 1866) Book IV para 1292 a3 1.


5 Benjamin Hoadley The nature of the Kingdom or Church of Christ: a sermon
preach 'd before the King at Royal Chapel of St. James's on Sunday March 31, 1717
(Knapton London 1717) as cited by Mike Purdue ' 5 th Constitutional Law lecture'
SCity University 2005).
Emergency Powers (Defence) Act 1939 (UK) 2 -3 Geo 6 c62.
7 ibid ss 1(l)-(2).
University College Dublin Law Review [Vol. 6

control over him, he may make an order against that person


directing that he be detained.8

The issue before the House of Lords was whether it could require the
production of particulars of the grounds of a detention in order to test its
validity. The majority held it could not, despite the fact that the phrase
'reasonable cause' in Regulation 18b had been substituted by an
executive committee for the more subjective sounding 'if satisfied9 that' of
the original regulation in order to head off a revolt in Parliament.
In the majority's view, if the Home Secretary produced an
authenticated detention order, the onus was on the detainee to establish
that the order was invalid or defective, or that the minister had not acted
in good faith. In other words, the wording of the statute was construed
subjectively; a mere production of the order without providing reasons
which supported the decision to make it, constituted a complete answer to
any such action or application. 10
In the leading judgment for the majority, Viscount Maugham
recognised fully the change in wording in Regulation 18b and that other
parts of the regulations generally adopted an 'if satisfied that ... '
formula.'1 He also acknowledged that the regulation impacted on liberty.
But he rejected Liversidge's argument that legislation dealing with the
liberty of the subject 'must be construed, if possible, in favour of the
subject and against the Crown.' 12 Rather, following the majority in R v
Halliday, ex p Zadig,'3 a House of Lords decision on detention during
World War I, he said that this interpretative rule has 'no relevance in
dealing with an executive measure by way of preventing a public

8 Defence (General) Regulations 1939 reg 18b.


9 Pritt KC, Liversidge's counsel, recounts in his memoirs that he bought an action of
false imprisonment in order to test the ministerial practice of responding to habeas
corpus applications by swearing an affidavit that simply asserted that the minister had
reasonable grounds for his belief. That is, the plaintiff alleged that the defendant has
without justification imprisoned him and so the defendant bore the onus of justifying
the detention. Pritt says that the point was to get the minister to see that he could not
'slide out' by an affidavit, and therefore, he would have to 'face up to the case, give
his reasons, and let the Court judge of their reasonability.' 'At worst,' the Court would
clarify the matter by deciding that the words 'reasonable cause' did not 'carry the
meaning they had hitherto.' Pritt The Autobiography of DN Pritt: Part One: From
Right to Left (Lawrence & Wishart London 1965) 304-7.
1oLiversidge (n 2) 224 (Viscount Maugham); 258 (Lord Macmillan); 277-278 (Lord
Romer); Greene v Secretary of State for Home Affairs [1942] 1 AC 284, 297 (Lord
Macmillan); 305-306 (Lord Wright).
"Liversidge (n 2) 223.
12ibid 218.
'3 [1917] AC 260, 270 (Finlay LC).
2006] Liversidge v Anderson Revisited

danger. ' 4 The Court should adopt the 'universal presumption' that if
there were reasonable doubt about the meaning of the words, it must
follow the 'construction which will carry into effect the plain intention of
those responsible for 5the Order in Council rather than one which will
defeat that intention.'
The court reasoned that 'in the absence of a context', the prima
facie meaning of the words 'reasonable cause to believe' is, 'if there is in
fact reasonable cause', however, this was not the only construction the
wording was capable of supporting.' 6 The court found several reasons to
support its conclusion that - in this context - 'reasonable cause to
believe' meant the more subjective 'if the official thinks' he has such
cause. First, there was the fact that, in his view, no judicial control could
be exercised over the second limb of Regulation 18b - that the Secretary
of State believes that it is 'necessary to exercise control' over the person.
If that question was left to the 'sole discretion' of the official, it followed
that the same was 'true as to all the facts which he must have reasonable
cause to believe.'' 7 Second, the Secretary of State was not acting
'judicially' when he made the detention order. He could act on hearsay
and was not required to obtain legal evidence or to hear the person's
objections. Third, the Crown could refuse on the ground of privilege to
disclose any evidence it wanted to keep confidential. Finally, the
discretion was entrusted to a high member of government, responsible to
Parliament. 18
Whether the duty of the courts is to interpret 9 the words that the
legislature has used literally, or whether they should look to the wider
context when determining 20 the intention of Parliament is a question
relating to the principles of statutory interpretation. 2 Taken in its literal
sense the 'reasonable cause to believe' in provision 18b suggests that the
Secretary of State must show to the court some evidence on which he has
founded his suspicions, in order to persuade the bench that the evidence
constituted a 'reasonable cause.' Lord Atkin forcefully makes this point
and convincingly argues that an objective standard was intended by the
"4 Liversidge (n 2) 218-219.
'" ibid.
16Liversidge (n 2) 219-220.
'7 ibid 220-221.
8 ibid 220-222.
19The 'literal rule' remains the dominant common law paradigm wherein the courts'
duty is to give the words of an Act their plain meaning: R v Judge of the City of
London Court [1892] 1 QB 273 (Lord Esher MR).
20 Magor and St Mellons RDC v Newport Corporation[1951] 2 All ER 839,
841 (Lord
Simonds) cited in Loveland Constitutional Law, Administrative Law and Human
Rights:
21 A CriticalIntroduction (OUP Oxford 2004) 56-57.
Zander The Law-making Process(Cambridge University Press Cambridge 2004).
University College Dublin Law Review [Vol. 6

legislature whether one's approach to the interpretation of the statute is


literal (his position) or purposive (the majority's position).22 Lord Atkin's
reasons for an objective standard are clear: i) this was the plain and
natural meaning of the words used; 23 ii) they were so used in other
legislation; 24 iii) other provisions in the regulations were expressed
subjectively, indicating that Regulation l8b imparted a different test; 25 iv)
an earlier form of regulation had been framed subjectively, indicating the
importance of the change. 26 By construing 'reasonable cause to believe'
subjectively we are left with a test satisfied by whatever is in the Home
Secretary's mind. The Home Secretary has merely to assert he has
reasonable grounds for his belief and this assertion could not be
challenged unless it could be shown he did not actually believe what he
said. It follows that only the Home Secretary could, in practice, judge the
reasonableness of his view of a person's 'hostile associations.'
This form of statutory interpretation effectively undermines
Parliament's intention and destabilises the concept of Parliament as the
sovereign lawmaker, putting into question Blackstone's observation, 'that
what the Parliament doth, no authority on earth can undo.' 27 The legal
sovereignty of Parliament - described by Dicey as the 'dominant
characteristic of our political institutions' 28 - is in effect the ultimate rule
of common law in the United Kingdom, for it is the judges who uphold
Parliament's sovereignty. As long as the judges accept the sovereignty of
Parliament, that sovereignty will remain the ultimate rule of the
constitution:

All rules of law have historical sources. As a matter of fact


and history they have their origin somewhere, though we may
not know what it is. But not all of them have legal sources ...
But whence comes the rule that Acts of Parliament have the
force of law? This is legally ultimate; its source is historical

2 Although Liversidge predated Pepper v Hart [1993] AC 593 and the use of Hansard
in the courts, VCRAC Crabbe's analysis is of importance: 'the conclusion which
flows from a consideration of Liversidge in light of Pepper v Hart is that the majority
decision does not accord with the sentiments demonstrated by the speeches in the
House of Commons regarding 18b.' Crabbe 'Liversidge v Anderson on the Anvil of
Pepper v Hart' (1997) 18 Statute Law Review 113, 46.
23 Liversidge (n 2) 227-228; 232.
24 ibid 228-232.
25 Liversidge (n 2) 232-236.
26 ibid 237.
27 Blackstone Commentaries on the Laws of England(1765-1769) (Cavendish London
2001) Volume 1, 160.
28 Dicey Introduction to the Study of the Law of the Constitution (1885) (Macmillan,
London 1959) 39.
2006] Liversidge v Anderson Revisited

only, not legal ... It is the law because it is the law, and for no
other reason that it is possible for the law to take notice of. No
statute can confer this power to Parliament, for this would be
to assume and act on the very power that is to be conferred 2 9

Therefore, the rule that confers validity on legislation is 'logically


superior to the sovereign.' The logical consequences of this are set out by
Wade in his seminal article on Parliamentary sovereignty in which he
argues that the very principle of Parliamentary sovereignty lies 'in the
keeping of the courts' 3 so that the legislative power of Parliament is, in
one sense, dependant on the willingness of the judiciary to recognise
parliamentary enactments as valid law. Thus the incompatibility of the
majority's decision in Liversidge with the British Constitution becomes
clear.
The implications of Wade's orthodox conception of sovereignty are
myriad. His argument captures the truth that power is, at its root, a factual
phenomenon. In practical terms it is possible for judges to refuse to
recognise legislation as law. On the other hand, Wade recognises that
within the United Kingdom's political order this raw conception of power
as fact has been overlaid by a set of constitutional precepts. As a result, to
borrow Hart's term, a 'rule of recognition' 31 has emerged which
constitutionally requires the courts to acknowledge Parliament's
sovereignty by accepting its enactments as valid law. It is the connections
which he draws between these two facets of power - one factual, one
constitutional - which is one of the defining features of Wade's thesis and
the orthodox position.
Crucially, Wade argues that, if the courts were to refuse to apply
primary legislation, they would be acting extra-constitutionally by
disregarding the established rule of recognition. It is for precisely this
reason that Wade refers to such situations as 'revolutionary.' So long as
the existing constitutional order subsists, there clearly does exist a
constitutional framework by reference to which all assertions of judicial
power must be justified. The authority of the courts - like that of the other
institutions of government - derives from a societal consensus which is
embodied in the constitution, and which operates both to empower the
courts and to demarcate the limits of that power. It follows that it is
constitutionally illegitimate for the courts to act in a manner which is
incompatible with parliamentary legislation, and - orthodox theorists of
the constitution will stress - parliamentary legislative intention. What
29 Glanville Williams (ed) Salmond on Jurisprudence (Sweet & Maxwell London
1957).
30 Wade 'Basis of Legal Sovereignty' (1955) 13 Cambridge Law Journal 172, 189.
31Hart The Concept ofLaw (Clarendon Press Oxford 1961).
University College Dublin Law Review [Vol. 6

Lord Atkin termed in Liversidge as 'a strained construction put on words


with the effect of giving an uncontrolled power of imprisonment to the
minister' 32 is exactly such an act of constitutional illegitimacy. The result
of their lordships' decision is not only an abdication of the judicial
function but a direct subversion of Parliament's supremacy, achieved
indirectly through the means of (perverse) statutory interpretation.

I1. THE RULE OF 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
1.,33

To compare Liversidge's case in 1942 AD with the


Arginusae trial in 406 BC exposes a fragility of the rule
of law, a fragility that beats the same weak drum as the
centuries pass. The weakness is that disobedience to the
law may seem to be justified by expediency, and the
imperatives of democracy, the preservation34 of the State
itself, may provide the greatest expediency.

Simpson makes very clear the effects which the majority's ruling in
Liversidge has for the rule of law: 'very many people were imprisoned
without term, or if you like euphemisms, interned, without any form of
trial, in flagrant violation of the ideal known as the Rule of
Law.' 35 (emphasis added) Before taking on Simpson's statement, we
should recall the orthodox conception of the rule of law as set out by AV
Dicey in his lectures delivered at Oxford in the late nineteenth century.
There remains to this day no single conceptual definition of the
rule of law. 36 Dicey by no means invented the concept. The principles
underpinning his formulation emanate from a common law tradition
32 Liverdige (n 2) 244.
" ibid (Lord Atkin).
34 Laws LJ 'From Homer to Socrates- The Rule of Law in Greek Literature' (Howard
Memorial Lecture 2002 given at the Law Faculty of the University of Oxford 16 May
2002). Available online: <www.dca.gov.uk/judicial/speeches/ljlaws 160502.htm>/ The
position of Laws LJ in relation to the admissibility of evidence obtained through
torture betrays that very fragility of which he speaks in relation to the rule of law - see
A and others v Secretary of Statefor the Home Department [2004] EWCA Civ 1123.
35 Simpson 'Rhetoric, Reality, and Regulation 18b' (Child & Co Oxford Lecture
1987) reprinted in (1988) Denning Law Journal 123-153, 123.
36'Rule of Law' remains polysemous - evinced by the debate regarding the phrase's
meaning when it recently appeared in section I of the Constitutional Reform Act
2005.
2006] Liversidge v Anderson Revisited

stretching back to Coke and Blackstone - its spirit exemplified by the


famous eighteenth century case of Entick v Carrington37 where the courts
declared that the Secretary of State could not order the search of Entick's
house, because there was no law that authorised such searches. 38
Dicey was to argue that this long tradition of respect for individual
liberty and democracy was upheld in our constitutional arrangements,
called the rule of law, and represented nothing less than a constitutional
principle; one that sits, as we shall see, uneasily with his other chief
constitutional principle, the sovereignty of Parliament. The fundamental
nature of the Diceyan approach to the rule of law is captured by three
principles taken from his lectures:

[First] we mean ... that no man is punishable or can be


lawfully made to suffer in body or goods except for a distinct
breach of the law established in the ordinary legal manner
before the ordinary courts of the land...

[Second] equality before the law, or the equal subjection of all


classes to the ordinary law of the land administered by the
ordinary law courts.. .that every official, from the Prime
Minister down to a constable or collector of taxes, is under the
same responsibility for every act done without legal
justification as any other citizen...

[Third] that with us the law of the constitution, the rules


which in foreign countries naturally form part of the
constitutional code, are not the source but the consequence of
the rights of individuals, as defined and enforced by the
courts; that, in short, the principles of private law have with us
been by the action of the courts and Parliament so extended as
to determine the position of the Crown and of its servants;
thus the constitution is the result if the ordinary law of the
land. 9

If the Entick judgment provides a perfect example of the rule of law as set
out above, Liversidge would seem to provide a perfect antithesis.
Liversidge had already been made to 'suffer in body' by being
imprisoned. The subjective construction of 'reasonable cause' in

31 (1765) 19 State Tr 1029.


38 Raffield 'Coke's Reports and the foundation of the modem English Constitution,'
(2005) 17 Law and Literature 66-96; Simpson Biographical Dictionary of the
Common Law (Butterworths London 1984) c Coke.
39Dicey 1885 (n 26) 202-203.
University College Dublin Law Review [Vol. 6

provision 18b permitted the Home Secretary to exercise the very


discretionary powers that are anathema to Diceyan rule of law. 4 0 Whether
there is a distinct breach of law was to be decided by the Home Secretary
and not the 'ordinary courts of the land.' The only check and balance, in
practice, on the Home Secretary's use of these powers was to be the
Home Secretary. The courts had sought as early as the sixteenth century
to seek to control the exercise of wide discretionary powers. As was said
in Rooke 's Case:

... notwithstanding the words of the commission give


authority to the commissioners to do according to their
discretions, yet their proceedings ought to be limited and
bound within the rule of reason and law. For discretion is a
science or understanding to discern between falsity and truth,
between wrong and right, between shadows and substance,
between equity and colourable glosses and pretences, and not
to do according to their wills and private affections; for as one
saith, talis discretio discretionem confundit.4 '

The Home Secretary exercising wide discretionary powers which are


themselves subject only to his control renders defunct the Diceyan notion
of equality before the law and rebuts the proposition that there is no need
for a written Bill of Rights because civil liberties are respected anyway.
In such a formulation, the judicial ann of government is essentially
emasculated, the legislature is subverted, and executive power is left
unchecked. The effect of handing over such arbitrary power to the
executive would also have the effect of rendering laws administered by
government highly unpredictable for the ordinary citizen, another
contravention of the Diceyan rule of law. 42 Lord Atkin's dissent is

40 During the latter part of the nineteenth century, detention of the Irish without charge
or trial and the limitation of habeascorpus were abandoned under the urging of Dicey
himself who described such 'Coercive Acts' as 'thoroughly vicious.' See Dicey
England's Case Against Home Rule (London 1887) 117.
41 (1598) 5 Co Rep 99b, 100; 77 ER 209, 210. This is echoed in Keighley's Case
(1609) 10 Co Rep 139a; 77 ER 1136. As Coke CJ said (4 Institutes 41), discretio est
discernereper legem, quid sitjustum: to discern by the right line of law, and not by
the crooked cord of private opinion, which the vulgar call discretion. 'Discretion,
which applied to a Court of justice, means sound discretion guided by law. It must be
governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but
legal and regular.' cited in R v Wilkes (1770) 4 Burr 2527, 2539 (Lord Mansfield).
42 I owe this point to Dr Loveland who draws out alongside the form of Dicey's
doctrine the 'less visible political view about the 'correct' substance of the laws the
legislature should make.' I Loveland Constitutional Law, Administrative Law and
2006] Liversidge v Anderson Revisited

particularly interesting in this respect because although he explicitly


backs a literal interpretation of provision 18b, the most oft-quoted part of
his speech makes very clear the context against which he would have
construed l8b if he had taken a purposive approach to interpretation:

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
43
to the Court of King's Bench in the time of Charles
1.

Pace the majority, the context put forward by Lord Atkin is the context of
the rule of law, not its suspension to 'ensure public safety.' 44 Critics who
dismiss this part of Lord Atkin's speech as 'passionate, almost wild
rhetoric' miss this central point. The majority defend their construction
essentially because it serves the purpose of the public good; theirs is an
argument - often used in times of emergency - of salus populi suprema
est lex. as Indeed, the Cambridge Law Journal puts this maxim from
Cicero forward as the ratio decidendi of Liversidge in its case note.46
Lord Atkin's now famous 'amid the clash of arms the laws are not silent'
is a not only a general refutation of this position taken by the majority,
but also an allusion to - and direct verbal inversion of- another famous
Ciceronian adage, 'silent enim, leges inter arma.'47 In this respect, both
Lord Atkin's position and the words he employs to put that position
forward would seem anything but wild. His reference to the Court of
King's Bench is another such calculated allusion - this time, to Darnel's
case,48cited in the King's Bench in 1628, in which five knights went to

Human Rights: A Critical Introduction (OUP Oxford 2004) 56-57. See also Craig
'Formal and Substantive Conceptions of the Rule of Law' PL (1997) 467-487.
43 Liversidge (n 2) 244. For the surrounding controversy resulting Atkin's judgment,
including the private correspondence between Lords Atkin, Simon, and Caldecote, as
well as Viscount Maugham's infamous latter to The Times, see Lewis Lord Atkin
(Hart Publishing Oxford 1999) 133-157.
4Liversidge (n 2) 252 (Lord Maximillian).
45Cicero De Legibus Book II Part III Ch VIII.
46 (1942) 8 CLJ 95.
47
Cicero Pro Milone Ch XI.
48 (1628) 3 How St Tr 59.
University College Dublin Law Review [Vol 6

prison for not paying the King's forced loan. Sir Nicholas Hyde, Lord
Chief Justice, refused to release them on a writ of habeas corpus as they
had been imprisoned by speciale mandatum regis. The Attorney-General
argued that they might be in prison forever, stating that the security of the
state was more important than their liberty and suggesting successfully
that a court of law was an unsuitable forum to debate matters peculiarly
within the discretion of the executive.49
Liversidge exposes the vulnerability of Parliament's supreme
legislative power - and, indeed, any Diceyan concept of the rule of law -
at the hands of judges who arrogate their constitutional power through the
interpretation of statute. But while accepting that the majority decision in
Liversidge may have been 'unconstitutional' in the sense that it was
incompatible with orthodox conceptions of parliamentary sovereignty and
the rule of law, it is important to admit also the potential incompatibility
per se between these two fundamental constitutional bedrocks. If
Parliament is supreme law maker then it can legislate in a way contrary to
the rule of law. Statutes can also therefore annul inconvenient court
decisions. 50 It follows that had provision 18b explicitly given the Home
Secretary arbitrary powers to detain people without trial, there would be
no room - on a constitutional level - to argue against such a power. In
short, for Diceyan rule of law to co-exist with parliamentary sovereignty,
Parliament would always have to legislate to protect its citizens' liberties
and restrain the government. Such a picture seems outmoded, especially
during periods within the latter half of 2 0 th century history when the
government of the day has effectively controlled Parliament through its
majority and nearly always gotten its way. It might be naYve to suppose
today that Members of Parliament spend much time paying a great deal of
attention to the legal context into which measures within Bills debated in
the House emerge as Acts of Parliament.
In R v Inland Revenue Commissioners, ex p Rossminister,5 1 the
House of Lords held, in effect, that Lord Atkin had been right all along by

49 Same arguments of deference are made today in support of detention of aliens


without charge by the United States Attorney-General. Just before his departure, John
Ashcroft told the Federalist Society, in language appropriate to the time of Charles 1,
that judges who do not support the President's special powers in time of crisis are
(treasonably) aiding the enemy. Available online: <www.fed-
soc.org/Publications/Transcripts/ashcroft04.pdf> (28 February 2005).
50 See War Damages Act 1965 which reversed Burmah Oil v Lord Advocate [1965]
AC 75, where House of Lords ordered the government to pay compensation to
Burmah Oil for the wartime destruction of its oil installations. See Crown Proceedings
Act 1947 as example of a statute granting government officials certain immunities
from legal action.
51 [1980] AC 952.
2006] Liversidge v Anderson Revisited

construing 18b in the literal sense. 52 There is an irony that by following


Lord Atkin's conventional approach to statutory interpretation, their
lordships authorised the Inland Revenue to proceed in a manner contrary
to the spirit of Entick and Diceyan rule of law. In this context, it may
seem surprising that the Diceyan rule of law has lasted as a credible
constitutional concept. It is not within the scope of this article to review
significant developments since Liversidge,53 among them the seminal
case of Anisminic Ltd v Foreign Compensation Commission,54 but
instead the article will conclude by tracing a subtle shift in the orthodox
position, or perhaps more accurately, in the position taken up by modem
defenders - amid the judiciary and the academy - of a Diceyan concept of
the rule of law.

IV. EPILOGUE: 'THE INTERPRETATIVE PRESUMPTION'

Just before Lord Atkin purposefully misquotes Cicero, he submits:

[The judges'] function is to give words their natural


meaning, not, perhaps, in war time leaning towards
liberty, but following the dictum of Pollock CB in
Bowditch v Balchin,55 cited with approval by my noble6
and learned friend Lord Wright in Barnardv Gorman:'
'In a case in which the liberty of the subject is concerned,
we cannot go beyond the natural construction of the
statute.'

In his judgment for the majority in Rossminister,Lord Wilberforce adopts


and defends the literalist approach set out by Lord Atkin. For both judges,
the will of Parliament is the supreme authority. But there seems to be
developing now a notion of seeing the courts' supervisory jurisdiction as
a way of giving effect to the intention of Parliament that any legal powers
it confers should be in accordance with the rule of law. Constitutional
theorists and prominent judges, supposedly wedded to the Diceyan
orthodoxy, are arguing for an 'interpretative presumption' that Parliament

52 Proving Allan's astute remark to Lord Atkin in a letter dated 5 November 1941 that,
'such cries in the wilderness have strong and long echoes.'
53A thoroughgoing survey is offered by Beloff 'A New Balance of Power?' (Lecture
delivered in association with Liberty 18 November 2005). Available online:
<www.blackstonechambers.com/pdfFiles/BlackstonesMJB.pdf>
54 [1969] 2 AC 147.
" (1850) 5 Ex 378.
16 [1941] AC 378, 393.
University College Dublin Law Review [Vol. 6

intends that powers conferred by it through statute should be exercised


within the rule of law.
The viewpoint of Allan is a good starting point. He remarks,
'understood as a constitutional ideal ... the rule of law provides the true
foundation of judicial review.' 57 Although Allan remarks that, 'in
striking contrast to the doctrine of parliamentary sovereignty, it has been
the fate of the rule of law to operate sub silentio',58 this position, he
argues, is rapidly changing.
Contemporary judicial decisions in the public law sphere clearly
demonstrate that the rule of law principle is regarded as central to the
existence and development of the judicial review jurisdiction, as modem
judges have taken to heart Allan's (neo)Diceyan contention that the rule
of law is a 'constitutional principle' which 'carries the force of law' and 59
which 'operates to direct the reasoning and functions of the courts.'
There are numerous examples in the case law that substantiate this claim.
The rule of law has explicitly influenced the courts in their application of
the principle of legal certainty; 60 the adoption of a robust judicial attitude
to the interpretation of preclusive provisions 6 and other measures which
appear to inhibit access to the courts; 62 holding ministers liable in
contempt; 63 considering what constitutes 'sufficient interest' in order to
launch judicial review proceedings. 64 That such instances of judicial
invocation to the rule of law constitute more than just a set of random
examples is borne out by Lord Steyn:

By the rule of law we mean the principle of legality, viz. that


every exercise of governmental power must be justified in
law. But the rule of law also comprehends in a broad sense a
system of principles developed by the courts to ensure that the

57 Allan 'The Rule of Law as the Foundation of Judicial Review' in CF Forsyth (ed)
JudicialReview and the Constitution(Hart Publishing Oxford 2000) 20.
58 Allan 'Legislative Supremacy and the Rule of Law: Democracy and
Constitutionalism' (1985) 44 CLJ 111, 114.
59 ibid.
60 Black-Clawson InternationalLtd v Papierwerke Waldhof-Aschaffenburg AG [1975]
AC 591, 638 (Lord Diplock).
61 Anisminic [1969] 2 AC 147.
62 R v Lord Chancellor, exp Witham [ 1998] QB 575.
63 M v Home Office [1994] 1 AC 377, 425-6 (Lord Woolf): 'the object of the exercise
[of holding a minister liable for contempt] is not so much to punish an individual as to
vindicate the rule of law.'
64 R v Secretary of State for Foreign and Commonwealth Affairs, ex p World
Development Movement Ltd [1995] 1 WLR 386, 395 (Rose LJ).
2006] Liversidge v Anderson Revisited

exercise of executive power is not abused.. .The rule of law


has played a vital part in the development of public law. 65

So the interpretative presumption is 'the principle of legality' that Lord


Steyn discusses above and, together with Lord Hoffman, in R v Secretary
of State for the Home Department, ex parte Simms. 66 The principle is that
a general power either conferred by statute or delegated by legislation
will be treated as not conferring the power to infringe certain basic rights
- in Simms'case, the right of a prisoner to communicate with a journalist
in attempting to challenge his conviction. Lord Steyn called it 'a
presumption 67
of general application operating as a constitutional
principle.'
So the courts do talk as if they assume, without Parliament saying
so, that when Parliament confers statutory powers, it does not intend to
authorise ministers to use them contrary to the principles of the rule of
law that underlie the grounds of review by the judiciary. The courts are
right to conclude that Parliament did not have that intention. But, in fact,
that does not amount to a presumption at all. There is no reason to think
that Parliament intended to empower an authority to act contrary to the
rule of law. Is there any reason to presume that Parliament did intend that
the authorities should act in accordance with the rule of law? Lord
Hoffman seemed to think so when he explained the principle of legality
in Simms:

In the absence if express language or necessary implication to


the contrary, the courts there presume that even the most
general words were intended to be subject to the basic rights
of the individual. 68

Should the courts assume that Parliament intends to promote the rule of
law because that generally is Parliament's intention? That would be a
mistake and a misrepresentation of Dicey. As we have seen, Parliament
sometimes acts to promote the rule of law, and Parliament sometimes acts
contrary to the requirements of the rule of law. The British constitution
entrusts to Parliament an overriding legal authority to decide what the
constitutional ideal of the rule of law requires and to decide under what

65 Lord Steyn 'The Weakest and Least Dangerous Department of Government' (1997)
PL 84, 86.
66 [2000] 2 AC 115. For Diceyan elements of Lord Hoffman's position in A v
Secretary of State for the Home Department [2005] 2 WLR 87; D Dyzenhaus 'An
Unfortunate Outburst of Anglo-Saxon Parochialism' (2005) 68 MLR 673.
67
[2000]2 AC 115, 130.
6
1 [2000] 2 AC 115, 131.
University College Dublin Law Review [Vol. 6

circumstances it is necessary to depart from the rule of law. There is thus


no general reason to believe that when Parliament passes legislation, it
intends to promote the rule of law, although it often does so.
An approach closer to the spirit of Dicey would be to argue that
there is a very good reason, unless Parliament tells them otherwise, for
the courts to act as if the conclusion were true without any reason to
believe that it is true. The reason is the value of the constitutional ideal of
the rule of law to the community and to the people whose interests are
affected by arbitrary uses of statutory power. So it may seem that the
courts should presume that Parliament intends that ministers of the Crown
and public authorities should exercise their powers in accordance with the
rule of law. Yet, since it is not necessarily inconsistent with legislation for
courts to impose the rule of law on the exercise of statutory powers, the
courts do not need to presume anything about Parliament's intention in
order to justify the imposition of duties. The constitution demands that
they impose those duties, unless Parliament acts to prevent it. Such is the
flexibility of the unwritten British constitution.
Liversidge provides an insight into the crucial issue of British
public law: the relationship between the judiciary, the executive, and the
legislature. While alerting us to the unsettled nature of the courts'
approach to the interpretation of statute, the case highlights the very real
constitutional consequences of those judicial decisions. Writing in the
latter half of a century very to different our own, Dicey's confidence in
the belief that the British constitution rests firmly upon the twin bedrocks
of Parliamentary legal sovereignty and the rule of law seems - as evinced
by Liversidge - at least problematic. Nevertheless, as argued above, his
ideas retain a currency to this day. A key question for the future will be
whether the judges remain loyal to Parliament or devote themselves
instead to a concept of a rule of law that enjoys a superior constitutional
status.