“I protest, even if I do it alone” – Lord Atkin, Liberty and the Rule of Law

2023 Lord Atkin Lecture

reproduced with the kind permission of Professor Emyr Lewis

Noswaith dda. Good evening. Diolch yn fawr am y cyflwyniad caredig ac i Goleg Crist am yr anrhydedd o gael traddodi darlith yr Arglwydd Atkin eleni. Many thanks for the kind introduction and to Christ College for the privilege of giving the Lord Atkin lecture this year.

I have been asked to address my lecture those of you who are pupils here and who are interested in studying the law, or just have a general interest in the law. The law is of course an endlessly interesting subject, since it touches on all aspects of our lives.

James Richard Atkin, who came to be Lord Atkin, was born in Australia in 1867. His mother Mary was Welsh from Meirionnydd (Merionethshire) in north-west Wales, and his father Robert (who became a prominent journalist and politician in Australia) was Irish, from County Cork. One of their three sons became unwell, and Mary and the boys returned to Wales to be with her family, leaving Robert behind. Tragically, a year later, Robert Atkin died in Australia when he was only thirty. The family then settled in Meirionnydd, a part of the world which was of enduring importance to Richard Atkin throughout his life.

One of the interesting things about Lord Atkin is that everyone lays claim to him. The Australians claim him for Australia because he was born there. The Irish claim him for Ireland because of his father. The English claim him for England because he practised English law in London. And the Welsh claim him for Wales, because of his mother of course, but also because of his upbringing here and his lifelong dedication to Wales. 

One place however that has every right to lay claim to him is this place, Christ College, where, according to his biographer Geoffrey Lewis, he had a ‘happy and fruitful’ time as a pupil before getting a scholarship to Oxford and then going on to become a practising lawyer and then a judge. In due course he became a member of the most senior court in the land, the Judicial Committee of the House of Lords (now replaced by the Supreme Court). 

Everyone who studies law comes across Lord Atkin. That is true not only in the UK but also in other countries whose legal system derives from or is influenced by the common law tradition of England and Wales. An essential part of that tradition is the rule that decisions about the law made by judges in individual cases become binding law in other cases with similar facts. (There are two important exceptions to this rule. The first is where you are able to argue that the circumstances are so different that the judge can depart from the previous decision, and the second is where a superior court decides that a lower court has got the law wrong and overrules the lower court’s decision.)

Because Lord Atkin was one of the most senior judges in the land, and because he appears to have had a strong inner sense that the law should achieve fairness and justice, and that it should also reflect the responsibilities we all owe each other in society, many of the decisions which he made when giving judgment in important cases have had far-reaching consequences in developing the law.

Perhaps the most influential of those decisions, certainly the most well-known, was the case of Donoghue v Stevenson. Mrs. Donoghue’s friend bought her a ‘Scotsman ice cream float’ which is basically ice cream with ginger beer poured over it. To cut a long story short, there was a snail in the ginger beer bottle and Mrs. Donoghue was ill as a result. She sued the manufacturer of the ginger beer, Mr. Stevenson. The case eventually got to the House of Lords. The law was clear that if someone had a duty to another person to take reasonable care and they did not, so that the other person was injured, the other person could claim compensation for negligence. The question in this case was whether Mr Stevenson owed Mrs Donoghue a duty at all. Lord Atkin found that he did. He said:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This speech by Lord Atkin, setting out what came to be known as the ‘neighbour principle’, was one of the most influential and far-reaching statements by a judge in the past 100 years.

But I want to talk to you not about Lord Atkin’s judgment in that case, rather in another case which, although famous in its time, has not has the same degree of publicity since then as Donoghue v Stevenson has had. It is in some respects an unusual case to pick, firstly because Lord Atkin’s judgment was a dissenting judgment. What does that mean? It means that he disagreed with the rest of the judges in the case. Five law lords heard the case, and he was outvoted, if you like, by four lords to one. He was in the minority. So Lord Atkin’s decision on the law in that case did not become law. Nevertheless, what Lord Atkin had to say proved to be far more influential than what the others said. It is also an unusual case to pick, because the case happened in 1941, in the middle of the Second World War, when issues of national security were heightened beyond where they would be in peacetime, yet the words of Lord Atkin speak to us as much now as they did then, as I hope to illustrate right at the end of this talk.

But before I discuss that case, I would like to take you back even further in time to the year 1765 and the case of Entick v Carrington, in order to introduce you to the concept of the rule of law. At that time, there was a weekly publication called the Monitor or British Freeholder which was critical of the Government. Reverend John Entick contributed to that publication. The Government did not like being criticised. They suspected Entick of being the author of some anonymous attacks on the Government (an 18th century troll, if you like) and Lord Halifax, one of the secretaries of state in the Government, issued a warrant which authorised Mr. Nathan Carrington and three other royal agents to enter Rev Entick’s house and seize his papers which, on the 11th of November 1762, they did. When I say ‘agents’ by the way, don’t imagine James Bond. Mr. Carrington and his colleagues were, I suspect, significantly less suave than 007.

Rev Entick was not happy, and sued Mr. Carrington and the others for trespass to his land and for trespass to his goods – that is to say for taking the papers, which were secret papers and were Rev Entick’s property. Mr. Carrington’s defence was that he had been authorised by the Government in the person of Lord Halifax to do what he did. That authority, he said, meant that he was lawfully entitled to go to Entick’s house and take his papers away. Mr. Carrington’s defence failed. Rev Entick won the case.

One of the grounds on which Entick won was that, for the Government to authorise such an interference with a citizen’s property, there needed to be a clear provision in the law which gave them the power to do so. It wasn’t enough for the Government just to say, ‘We are the Government, we can do what we please’. The warrant was not enough. The Government, like everybody else, is subject to the law – it must have a basis in law for what it does. The judges in the case explained that they could not find any law which permitted Lord Halifax to issue the warrant which he did, so it had no legal basis, so the warrant did not give Mr. Carrington and his colleagues any lawful authority to do what they did. Consequently, their actions were unlawful, and Rev Entick was entitled to compensation.

The idea that everyone is subject to the law, and nobody is above the law, even the Government, is a fundamental component, if not the fundamental component, of what is called the rule of law. We are all ruled by the law. If people were simply able to pick and choose whether laws applied to them or not, then an orderly and peaceful society would be impossible. This is of course open to challenge – what about unjust or oppressive laws? – but in the case of the Government, which has huge power over citizens, it is essential that it behaves in a lawful manner. This is also known as the principle of legality.

So now back to 1941 and Lord Atkin. The case I’m going to discuss is another one where a citizen sued a secretary of state. He was born Jacob Perlzweig, but by the time the case came to court he had long ago changed it to Robert Liversidge, and he sued the Secretary of State for Home Affairs. Mr. John Anderson. So the case was called Liversidge v Anderson. As we have seen with Lord Halifax, a secretary of state is a minister in the Government. The Government is often referred to as the executive, to distinguish it from the legislature (Parliament) which makes laws and the Judiciary - the judges.

As I explained, there was a war on, and in wartime, and indeed other times of emergency, it is common for governments to make laws which restrict people’s rights and liberties. In recent times, we can recall our liberties being restricted quite severely during the lockdowns linked to the outbreak of coronavirus. The Government then passed laws that made it unlawful for us to leave our homes or to meet other people except in strictly defined circumstances.

In times of war specifically, it is common for legislation to be passed authorising people to be arrested and kept in prison if, for example, they are suspected of being enemy agents.

At the beginning of the second world war, a law was passed called the General Defence Regulations 1939. Part of that law (Regulation 18B) gave the Secretary of State the power to detain people (i.e. arrest them and keep them in custody). 

This is what it said:

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.

Mr Anderson made an order against Mr Liversidge under this provision, ordering that Mr Liversidge be detained. Mr Liversidge sued the Secretary of State for false imprisonment, and as part of that asked the Secretary of State to explain what his grounds were for detaining him. The Secretary of State refused to do so. The hearing in the House of Lords was about whether the Secretary of State was obliged to explain to Mr Liversidge why he was being detained. 

The crucial question in the case was how to interpret Regulation 18B, so the focus was on the words of the law and what they meant. The exercise of interpreting a written law is also known as ‘construction’ and we use the verb ‘to construe’ to describe the act of interpretation.

When faced with construing a provision like Regulation 18B, a lawyer’s first step is to analyse it, break it down into its component parts.

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.

Let’s focus on the words in bold. This Regulation clearly gives the Secretary of State the power to make an order to detain someone (he may make an order). Unlike Lord Halifax in Entick’s case, the Secretary of State, Mr Anderson, had a legal basis open to him for ordering that Mr. Liversidge be detained. But it is not an unconditional power to detain anyone arbitrarily. It is conditional (if). Before the Secretary of State can make an order, he must have reasonable cause to believe that someone falls into one of the categories set out and that it is necessary to control that person because of those things (by reason thereof).

The order made by Mr. Anderson stated that he had reasonable cause to believe Mr. Liversidge ‘to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him’.

That is why Mr Liversidge wanted to know the grounds on which the Secretary of State made the order. How could Mr Liversidge know whether Mr. Anderson had reasonable cause to detain him, if he did not know what the cause was?

As I have explained, five law lords heard the case. Of those five, four decided the case in favour of the Secretary of State, Mr. Anderson. They decided that it was enough that the Secretary of State had said in the order that he had reasonable cause to believe Mr Liversidge to be of hostile association and that it was therefore necessary to control him. The law lords would not look behind Mr Anderson’s bald statement of fact. They would presume that he had such a cause and would not question any further.

Lord Atkin looked at things differently. He started off by emphasising what was at stake: on the one hand the safety of the country, on the other the freedom of the citizen.

The matter is one of great importance both because the power to make orders is necessary for the defence of the realm, and because the liberty of the subject is seriously infringed.

He emphasised that the power in Regulation 18B is conditional on the Secretary of State having reasonable cause, then he went on to describe the interpretation of the other law lords as follows: 

[for the other law lords] the words “if the Secretary of State has reasonable cause” merely mean “if the Secretary of State thinks that he has reasonable cause.” The result is that the only implied condition is that the Secretary of State acts in good faith. If he does that — and who could dispute it or disputing it prove the opposite? — the minister has been given complete discretion whether he should detain a subject or not. It is an absolute power which, so far as I know, has never been given before to the executive, and I shall not apologize for taking some time to demonstrate that no such power is in fact given to the minister by the words in question.

He then goes on to deal in detail with how Regulation 18B is worded

the words [“if A has”] 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.” … 

The same is true for “reasonable cause”, Lord Atkin argues. Thinking you have a reasonable cause is not the same as actually having one. In a court, it is for the judges to determine whether you have a broken ankle as a result of an accident, and the same is true for a reasonable cause for detaining someone. The judges should decide whether there is a cause and whether it is reasonable. 

So for Lord Atkin, it is an objective question to be determined by the Court whether reasonable cause existed, not a subjective question to be determined by the Secretary of State himself. In Lord Atkin’s view that was the correct construction of Regulation 18B. 

If the test is objective, in order to determine objectively whether or not reasonable cause exists a citizen and a judge must be able to know what the cause was. Otherwise how could its reasonableness be objectively assessed? Without reasonable cause, said Lord Atkin, there is no legal basis for the order and the detention is unlawful. 

At the end of his judgment, Lord Atkin goes further. He returns to the issue of the liberty of the citizen and sets the decision in this case against the context of the war:

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.

He is in effect saying that in times of war it is even more important that judges stand up independently for the rights and freedoms of citizens against the government. Note also his emphasis on the role of judges in upholding the rule of law and the principle of legality – they must be vigilant, as he put it, to ensure that any coercive action is justified in law.

He then goes further and in effect criticises his fellow law lords for failing in their duty of independence in upholding the rule of law and for deciding the case by construing Regulation 18B based on what is convenient for the government, rather than on its natural meaning. 

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. (i.e. more government-minded than the government).

and in a passage, tinged with more anger than humour, he compares them to the character Humpty Dumpty in Lewis Carroll’s ‘Through the Looking Glass’

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.

The use of the word ‘authority’ here is particularly scathing. Lawyers and judges use that word to describe the legal basis they have for an argument they are putting forward. So for instance Donoghue v Stephenson is authority for the neighbour principle. To accuse the other Law Lords of relying on an absurd and pompous character from a children’s book as authority was quite a thing!

But Lord Atkin clearly felt very strongly about the principle at stake – the freedom of the individual against overwhelming executive power, and that strength of feeling is perhaps best summed up by this sentence:

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.

Now, it is very rare for senior judicial figures to express themselves in such a blunt and direct manner, let alone satirise their colleagues by comparing them to Humpty Dumpty. Both before and after Lord Atkin gave his judgment, senior judges and other senior lawyers wrote to him in private to express their surprise about the way he had expressed himself.

It is even rarer for things to spill out into the public realm as they did in this case. One of the other law lords, Lord Maugham, clearly upset by what Lord Atkin had said, wrote a letter to the Times which criticised an aspect of his judgment. This gave rise to a flurry of activity in the House of Lords which ended up with a sort of self-justificatory apology given by Lord Maugham to Lord Atkin.

But that kerfuffle was short-lived. What remained after everything had quietened down, and what has resonated over the 80 years since, was Lord Atkin’s staunch defence of the need for the law to protect the liberty of the individual, and his moral courage in sticking to his guns and not compromising on his convictions. 

Having said that, it is important to bear in mind a very important qualification to this, which is relevant to both liberty and the rule of law. Lord Atkin did not say that it was inherently unlawful for the Government to detain people for no good reason. He clearly thought that this would be a bad thing, but all he did was to interpret this law (Regulation 18B) in a way which made the risk of that happening much less. He did not say ‘and it is not possible for Parliament to pass such a law’.

In many countries, such a law could not be passed, because there is a superior law which stops it from happening. That superior law, usually called a constitution, makes certain rights and freedoms absolute, and protects them from being infringed, even if laws made by the national parliament allow it.

That is not the position in the UK. The UK Parliament is free to make any laws, which can be cruel, oppressive, or just plain absurd because in our constitutional arrangements Parliament has legislative supremacy. There is no superior law to an Act of Parliament. Lord Atkin would have accepted that an Act of Parliament, properly drafted, could have allowed Mr. Liversidge to be deprived of his liberty and detained without explanation (though I suspect he would have tried every way available to him to argue the contrary in each individual case). The idea of the rule of law in the UK did not, and does not, extend to saying that Parliament has to observe minimum standards of fairness or respect for rights when it makes laws.

That doesn’t mean that human rights can be completely ignored when considering UK laws, however.

After the second world war was over, because of the horrors that were inflicted, European nations led by the UK came together to try to agree on a set of rights and freedoms which were universal in nature, and which they would all agree to observe. That is how the Council of Europe, and the European Convention on Human Rights, came into existence. All countries in Europe now subscribe to that Convention, apart from Russia and Belarus.

The UK has done this in a rather unique way, by providing, in the Human Rights Act 199, that all our laws must be construed in a way which is compatible with the Convention Rights if possible. That is to say, they must be interpreted in a way which means the rights are upheld. If that is not possible, then almost all laws which are not Acts of Parliament will be void. Regulation 18B for instance would have fallen foul of Article 5 of the Convention which includes the following requirement:

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

But, and it is a big but, because of legislative supremacy, Acts of Parliament (and some other laws) will stand even if they infringe convention rights. This doesn’t make the courts entirely powerless. They can declare that provisions in Acts of Parliament are not compatible with the Convention Rights, but that does not make the provisions themselves void. They remain law. If the courts take this step, then government ministers have the power to amend them to put things right.

All this has a bearing on what the rule of law means. Some say that it means that there must be a legal basis for what you do and that some other formal features are recognised, but it does not mean that a law cannot be unfair or cruel. Another influential judge, however, Lord Bingham, took the view that the rule of law meant more than simply formal matters. In a stark passage in his book on the topic, he said:

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed.

This question – as to whether there is, or ought to be, any minimum rights or freedoms which the UK state is just not capable, as a matter of law, of abolishing or watering down – remains an open one.

To bring us right up to date, last week the Supreme Court held that the Government’s plan to fly certain asylum seekers to Rwanda was unlawful because Rwanda was not a safe place, in that there was a danger that asylum seekers might be sent back to dangerous counties from where they had fled – an unlawful practice called refoulement. The Home Secretary had argued that because she had concluded that Rwanda was safe, that was enough. The Supreme Court disagreed saying that it was a matter for the court to decide whether as a matter of fact it was safe. This is what they said:

Whether the Secretary of State was entitled to reach a particular conclusion is a different question from whether the court assesses that there are in fact substantial grounds for thinking that there is a real risk of refoulement

The parallel with Lord Atkin’s judgment is clear.

And what of Mr. Liversidge? The case told us very little about him. Well, the secret service files about him have now been declassified and made available on the internet. They are interesting to read, not least because they show what a colourful character he was. As I have mentioned, he was born Jacob Perlzweig, the son of a rabbi who had fled Russia. His story includes developing sound recording equipment for Hollywood film studios, allegations of involvement in fraud in the UK and the US, obtaining a fake Canadian passport, an affair with a movie actress and developing a career as a successful businessman under his new name of Robert Liversidge before volunteering to join the RAF. That would be the subject of another talk, however. What seems sure is that he was no Nazi sympathiser, simply someone of whom certain people in authority had become suspicious on pretty flimsy grounds, at a time when feelings were running high because of the war. While he lost his case in the House of Lords, he was in fact released soon after. 

But I will end up with Lord Atkin, here at Christ College, 110 years ago, in 1913, soon after he had been made a judge. Lord Atkin came back to a prize-giving event and he made a speech. During that speech he gave the boys (for they were all boys then) some advice about the importance of standing up for what is right. According to the report in the Brecon County Times, quoted in Geoffrey Lewis’ biography, he said that “There is one thing the boys ought to learn when at school…If they learnt while at school how and when to say ‘no’ they would have learnt one of the greatest lessons of their life”.

Now by quoting those words, I am not encouraging the pupils here this evening to adopt a negative attitude towards life or their teachers or their studies. On the contrary. Let me explain. Those of you who have ambitions to become lawyers, or are merely interested in the idea, do not forget that there is a lot that you can do for good as a lawyer. It is customary to deride or to be contemptuous of lawyers, and we should not be afraid of that – sometimes we lawyers invite it on ourselves - but lawyers are also often the last resort for people in desperate and difficult circumstances, with no-one else to turn to and who lack the means to stand up for themselves against powerful people. It is a responsibility and a privilege sometimes to say no to injustice and oppression, as Lord Atkin did, especially when all else are against you as Lord Atkin’s colleagues and the Government were. It is one of the most positive and affirming things one can do, sometimes, to say no.

Diolch yn fawr i chi am wrando. Thank you for listening.

Emyr Lewis 24.11.2023

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