When judges sleep

Every so often, poking around in the law’s attic for something you need, you come across a piece of legislation or a report of a case which still has enough grass and twigs sticking to it to hint at the life behind it. Researching a case not long ago about public rights of access to Fylingdales Moor, it dawned on me that behind the opaque language of the successive Defence Acts and Military Lands Acts which from the 1840s onwards had handed huge tracts of land to the military for practice and manoeuvres, lay a widespread struggle, in and outside Parliament, to keep the commons open. It resulted in the inclusion of a proviso forbidding the predecessors of the Ministry of Defence to close off any rights of common, and it gave the Greenham women the final satisfaction of striking down the bye-laws under which they had repeatedly been prosecuted for entering land in breach of bye-laws which, it turned out, had been illegally made. It also gave the new Lord Chief Justice an example, for his Dimbleby Lecture, of the law’s ability to play a straight bat.

A book may be lurking there, as it must in many other corners of the legal attic. Brian Simpson himself embarked on such an enterprise some years ago with the 19th-century case, known to every law student, of the Crown v. Dudley and Stephens – the captain and mate of the yacht Mignonette who survived a ship-wreck by eating the cabin boy and were convicted of murder when they got home. What was so good about Simpson’s Cannibalism and the Common Law was that it went much wider than the one earlier book on the case, Donald McCormick’s Blood on the Sea, trawling in great social and nautical circles and retrieving wonderful things. Simpson’s new book on wartime internment in Great Britain does the same, with the deliberate result that the historic case which internment threw up, Liversidge v. Anderson, ranks not as the centrepiece but simply as one episode in a Byzantine, absorbing, and in one respect important piece of history.

Like the rest of us in the law business, Simpson first learnt about the case as a student. ‘Subsequent work,’ he comments, ‘has made it clear to me that, like the judges involved in that great case, we had only a very shaky notion of what it was all about.’ He has endeavoured to establish exactly what the case was and – equally important – was not all about. In recent years the Law Lords themselves have publicly repudiated their predecessors’ majority decision in support of arbitrary executive power, holding that it does not represent the law of this country and that Lord Atkin’s famous dissenting speech on that occasion does. In this situation Simpson’s critique and contextualising of the case becomes more, not less, relevant, for he does not adopt the adulatory view of Atkin’s judgment which is now the conventional wisdom among lawyers.

Every state needs or believes it needs emergency powers for times of crisis. In 1914 the British Parliament, which had rushed through the first Official Secrets Act in 1911, rushed through a Defence of the Realm Act, drawing on much experience in Ireland and the colonies and giving ministers wide powers to govern by regulation. By 1915, MI5 had procured a regulation, 14B, permitting detention without trial of persons suspected of enemy associations. A German-born British subject, Arthur Zadig, who was detained under it, challenged in the courts whether it lay within the power of government to introduce such a fundamentally unconstitutional procedure without clear legislative authority. At each level the judges upheld the executive. Only the Scottish Law Lord, Shaw of Dunfermline, stood out against what he called ‘a violent exercise of arbitrary power’. Lord Atkin ran with the pack on this occasion. It is sobering to find a scholar as good as Simpson writing: ‘From 1917 onwards British judges have, with the rarest exceptions, consistently upheld the progressive erosion of British liberty in the name of good government.’ He calls Zadig’s case ‘a sort of watershed between the world of Victorian liberalism and the world of the vigilant state’.

His meticulous search through public and private records and recollections – for many of the actors are still alive – enables Simpson to make his thesis three-dimensional. The blimps and pompous asses he finds and quotes at every level of government give force to his suggestion that it was a wave of misjudgment, confabulation and rhetoric rather than any soberly appraised emergency which swept both government and judiciary along. This may be right, but I am not so certain that it swept them from a principled Victorian liberalism to a Machiavellian statism. The world of mechanised warfare and instant communication into which the cavalry generals and civil servants had been gradually blundering ever since the Crimea made alarming demands that promoted a combination of statism and arbitrary government. The Defence and Military Lands Acts of the 19th century were an example. But the world of Victorian liberalism to which Simpson looks back was actually one of constant state intervention, characterised by the installation of statutory commissions to oversee and regulate the chaos of mercantile enterprise in areas of public utility, and also by a judicial interventionism which enabled entrepreneurs – as still happens in the United States – to tie up and tie down the commissions with litigation about the legal scope of their powers.

It was also the judges who in the new century shifted from a hands-on to a hands-off attitude towards departmental government. Why they did so is an important piece of history that has yet to be written, but it cannot be explained solely in terms of capitulation to the panic-stricken demands of government in wartime. Simpson is therefore right not to call Zadig’s case more than a watershed, for the process of judicial abdication which resulted in the long sleep of judicial review of government action between, crudely, the second and seventh decades of this century had much to do with the Northcote-Trevelyan transition to government through and by an Oxbridge-led professional civil service in whom the 20th-century judges by and large thought they could repose their confidence and trust. The line between judicial control of the executive and judicial interference in government remains sensitive, but the fact that today it is contentious at all is proof of a new constitutional mood that contrasts dramatically with the supine jurisprudence of the period of the two world wars which is Simpson’s subject. His view that there has been a progressive judicial betrayal of British liberty in the longer term is another question.

Regulation 18B was made by the Privy Council under a new Emergency Powers Act passed on the same day in May 1940. Its target was necessarily Mosley’s British Union of Fascists, the only visible and audible nucleus of an anticipated Fifth Column. Wretchedly, collaboration throughout Europe was already showing that an organised Fifth Column was not a necessary condition for the emergence of the enemy within. Simpson chronicles with an uncharacteristic lack of curiosity the hesitancy of the Home Secretary, Sir John Anderson, to strike quickly and hard at the BUF. He records a paper submitted by Anderson to Cabinet a few days before regulation 18B was made, arguing that drastic action was premature, and he quotes the Cabinet minute of the ensuing discussion, which recorded Anderson explaining at length ‘the difficulty of taking any effective action in the absence of evidence which indicated that the organisation as such was engaged in disloyal activities’. Anderson, Simpson comments, respected legality. Churchill, by contrast, supported by the Chiefs of Staff, wanted a major sweep of Communists and Fascists – ‘and very considerable numbers should be put in protective or preventive internment, including their leaders’, he wrote. Then, in late June, a new regulation 18AA gave the executive power to ban organisations. It took Anderson two weeks to ban the BUF under it. ‘Although difficult to believe, were it not documented, this delay was not an oversight,’ says Simpson, and he cites a fine departmental example of Cornford’s principle of ‘unripe time’ to show why. He does not consider the question, which occurred to me, whether Anderson’s heart was in it.

In his entertaining colonial service autobiography A Mole in the Crown, Michael Carritt describes working under Anderson when he became Governor of Bengal in the mid-1930s.

He had been sent to Bengal as a strongman, a trouble-shooter, to cope with a quick succession of terrorist assassinations and an increase in Indian nationalist militancy. He had had experience in this role in Ireland after the First World War and had there acquired the nickname ‘Black-and-Tan Anderson’. He was authoritarian and ruthless, but at the same time an extremely competent administrator ... We who worked under him respected his efficiency but distrusted his avowed approval of the Fascist regimes.

Carritt was the secretary of a conference of Bengal regional commissioners held in 1937. ‘The conference was addressed by Sir John who stressed that his remarks were in confidence, then proceeded to advocate legislation like that in Nazi Germany for the suppression of trade unions and political parties and the wholesale arrest of their leaders.’ Curiouser and curiouser. The cabinet in which Anderson served was initially Chamberlain’s, but Churchill kept him on until he took a peerage. Ultimately it was Churchill who insisted that Regulation 18B be scrapped (the title of the book, In the Highest Degree Odious, is a phrase he used in 1943 about detention without trial, characterising it as ‘the foundation of all totalitarian government’), while the Communist Left, pleased that the Regulation had resulted in Mosley and not its own leaders being locked up, campaigned to lift the ban on its newspaper, the Daily Worker, and to keep Mosley in gaol.

Meanwhile, however, the judiciary had sided not with Churchill’s eventual view but with the executive’s demand for unquestioned power. The reasoning of the majority of the Law Lords in Liversidge v. Anderson is readily ridiculed, and was definitively ridiculed by the dissenting member, Lord Atkin, in a speech which eventually received the accolade of inclusion in Louis Blom-Cooper’s anthology The Law as Literature. Atkin mortally offended his colleagues by drawing on Lewis Carroll to characterise their semantics. Regulation 18B started with a conditional clause: ‘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 ...’ The majority held that whether the Home Secretary had reasonable cause to believe any such thing was not their business. Atkin said:

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 ... 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 ... 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 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’ ... 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.

This is stirring stuff; it still cheers lawyers and judges up when the system comes under criticism, and it kept judicial supremacism stirring through the long sleep of judicial review. But what was it that Atkin actually proposed should be done to protect the liberty of the subject? ‘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.’ In other words, the executive could have made the whole issue go away by speaking the magic words ‘national security’. In recent years the courts have tried to develop a principle of judicial invigilation of such claims, but it has taken the Matrix-Churchill trial to bring the issue to a public head.

The major contribution of Simpson’s book to modern jurisprudence is what he has found and exposed under this very stone of executive discretion and judicial compliance. He shows that internment orders were being signed by the Home Secretary without consideration of evidence, and that many were being made effectively without evidence. Of the eight short paragraphs of the report which resulted in Liversidge’s internment, all but one were a combination of anti-semitism and character assassination. A single paragraph read: ‘The said Liversidge was associated from time to time with Germans and with those associated with the German Secret Service.’ Whether this was an isolated case or part of the official ethos can be gauged by a passage, which Simpson quotes, from Lord Denning’s memoirs: ‘Most of my work in Leeds was to detain people under regulation 18B ... As an instance I would tell of the Nazi parson in a village in Yorkshire. He often spent his holidays in Germany ... Although there was no case against him, no proof at all, I detained him under 18B. The Bishop of Ripon protested, but we took no notice.’

What both the majority’s executive-mindedness and Atkin’s weak solution were colluding with, knowingly or not, was the systematic abuse of executive powers. It had nothing in the end to do with the conferring of an emergency power of internment and everything to do with how the power was used. Simpson’s material furnishes an awful warning, as Lord Atkin’s judgment ultimately does not, about the inseparability of judicial vigilance and personal liberty. What judges decide is at least there for the world to read; the significance of what they decide may be buried for ever. Brian Simpson is entitled to credit for playing Ezekiel to the bones he has disinterred. We need to watch them anxiously as they dance.