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.’

Liversidge v Anderson and the Battle of Britain

On 26 May 1940, following the Battle of Britain the previous year, and at a time when it appeared that England might be invaded by the Germans, the Home Secretary, Sir John Anderson ordered the detention of a wealthy Jewish businessman, Jack Perlzweig.  Perlzweig went by the name Robert Liversidge, and was then serving as a volunteer in the Royal Air Force.  

Sir John purported to act under emergency powers that permitted the Home Secretary to intern persons if he had "reasonable cause" to believe that they had "hostile associations”.  Liversidge was arrested and detained in Brixton Prison where he remained.

He brought an action for false imprisonment.  The Home Secretary at the time of the order, and his successor, filed a defence.  Liversidge sought particulars of the grounds upon which Sir John had formed his suspicion.  His summons was dismissed by the Master.   

His appeal against that dismissal  was in turn dismissed by a Judge sitting in chambers.  

A further appeal was dismissed by a Divisional Court that notwithstanding gave leave to appeal to the House of Lords.  

That appeal was heard over several days in September 1941, and determined in November.

The majority opinion in Liversidge

A majority of six Law Lords held that the Secretary of State, acted in good faith under regulation 18B of the Defence (General) Regulations 1939 when he made an order in which he recited that he had reasonable cause to believe Liversidge to  be a person to be of hostile associations.  By reason of those associations, it was necessary to exercise control over him. 

When the Secretary of State directed  that that person be detained, a court could  not inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter was  one for the executive discretion of the Secretary of State.

It followed that, in an action by a person detained against the Secretary of State for damages for false imprison-ment, the court could not  compel the defendant to give particulars of the grounds on which he had reasonable cause to believe the plaintiff to be a person of hostile associations, or that by reason of such hostile associations it was necessary to exercise control over the plaintiff.  

The production by the Secretary of State of an order of detention, made by him, regular on its face,  and duly authenticated, constituted a defence to such an action unless the plaintiff discharged the burden of establishing that the order was invalid.

Lord Atkin's dissent

Lord Atkin dissented.  In his view the majority had abdicated their responsibility to investigate and control the executive, showing themselves to be "more exec-utive-minded than the executive". 

Theirs was a strained construction put on words with the effect of giving an uncontrolled power of imprison-ment to the Minister.  

He went on to say: 

In England, amidst 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.

Regulation 18B of the Defence (General) Regulations 1939 

The material words of the regulation: 

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.

The importance of the case

His Lordship saw the matter as being one of great importance for a number of reasons.

• The power to make orders is necessary for the defence of the realm.  At the same time. the liberty of the subject is seriously infringed.  

• The order does not purport to be made for the commission of an offence against the criminal law.  

• It is made by a Minister residing in the executive,  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.

An objective construction

His Lordship suggested that it was beyond 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 there is a condition to a right, including a power, granted to A, then whenever the right is disputed, the tribunal 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 indi-cate an existing something, the having of which can be ascertained. 

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, and capable of deter-mination by a third party, as is a broken ankle, or a legal right.

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.

His Lordship then proceeded to show that this meaning of the words has been accepted in innum-erable legal decisions for many generations.

'[R]easonable cause' for a belief, when the subject of legal dispute, has been always treated as an objective fact, to be proved by one or the other party, and to be determined by the appropriate tribunal.

When liberty of the subject is in issue

His Lordship expressed himself as viewing 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,  and not to ‘go beyond the natural construction of the statute.’

His Lordship continued:

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.

…

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.

…

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.)

The appropriate relief

Mr Liversidge was entitled to his particulars