Lord Atkin’s judgment in Liversidge case prompted a warm telegram

Every object tells a story, sometimes obvious, sometimes obscure, usually independent of that item’s appearance.

The congratulatory telegram to Lord Atkin from his daughter Nancy.

Every object tells a story, sometimes obvious, sometimes obscure, usually independent of that item’s appearance. Each Object Lesson by Gideon Haigh will take a commonplace object, and draw from it an otherwise hidden tale.

“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.”

Those versed in the law will recognise the opening lines of the judgment in Liversidge v Anderson (1941) by Lord Atkin — arguably the greatest contribution by an Australian-born jurist to the administrative law of the Commonwealth. Dick Atkin was born in a cottage on Tank Street in Brisbane’s North Quay on November 28, 1867. His parentage was Anglo-Irish, his father a quixotic journalist and parliamentarian; the greatest influence on him, his biographer, Geoffrey Lewis, argues, may have been a no-nonsense Welsh grandmother with strong liberal instincts, whom he called “the greatest woman I ever met”.

Certainly the family regrouped in Wales after the premature death of the patriarch from injuries sustained in a riding accident. Atkin was schooled in Brecon and Bangor before studying law at Oxford and, in 1891, being called to the Bar at Gray’s Inn.

Fifty years later, Atkin was a member of Britain’s highest court of appeal, the Appellate Committee of the House of Lords. He had lost the Brisbane-born wife to whom he was devoted two years earlier, but was close to his six married daughters; one of them, actress Nancy, sent him this warm and intimate telegram after Liversidge, now part of his papers at Gray’s Inn.

“Many congratulations on superb judgement am prouder than ever to be your daughter”.

Robert Liversidge’s real name was Jacob Perlzweig. The son of a Russian-born rabbi, he had become a wealthy and successful financier, then volunteered for military service after Munich, serving as an intelligence officer in Fighter and Bomber Commands.

His name change, however, aroused suspicion; so, in all likelihood, did his Judaism. He had a wide circle, including some on the fringes of the intelligence community.

Although there was no evidence Liversidge had “hostile associations” or had committed “acts prejudicial” to public safety as required by Defence Regulation 18B, the Home Office decided to intern him on grounds of his “unsavoury and indeed dangerous associations”.

The statute, however, required the showing of “reasonable cause” for the imprisonment and, when home secretary Sir John Anderson declined to elaborate on his reasoning, Liversidge sought relief. War was at its height, Germany seemingly on the brink of sweeping the Soviet Union, deepening Britain’s isolation. When the case reached the Appellate Committee, the majority sided with Anderson.

Atkin did not, in quietly stirring words: “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.”

“Reasonable cause,” Atkin argued, implied an objective standard, which the court was equipped to evaluate. He chided the majority for being “more executive-minded than the executive”, arguing that theirs was “a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister”.

Most famous is Atkin’s whimsical conclusion, which draws on that well-known legal authority, Humpty Dumpty, from Lewis Carroll’s Alice in Wonderland: “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 Lord Chancellor asked him to remove the passage; Atkin declined. He was sensitive to his colleague’s blushes, writing Nancy: “I hope I shall be on speaking terms afterwards.”

But he delivered the judgment anyway, turning the other cheek when Lord Maugham wrote an indignant letter to The Times.

And he was reinforced by letters such as one from his cousin, novelist Berta Ruck. “If the utter ignoring of our national rights proceeds to its logical conclusion we might as well be under Hitler: not one of us is safe,” wrote Ruck.

“What a godsend of witty apting’s (if I may say so) was your Alice quotation: it was a flash of brilliant lightning across all those clouds of confusion and nonsense.”

Liversidge is one of those decisions where the dissent has resonated long after the majority – that as Lord Diplock concluded, in the Inland Revenue Commissioners v Rossminster (1980), “the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right”.

In a fine paper in the Australian Law Journal on Atkin’s sesquicentenary, Justice Peter Applegarth of the Queensland Supreme Court said that the judgment’s “forceful statement of constitutional principle” had “influenced generations of judges and lawyers”.

Fifty years after its utterance, it was echoed in Australia’s High Court, when a unanimous finding in George v Rockett praised “Lord Atkin’s famous, and now orthodox, dissent”.

The boy from North Quay, as Applegarth put it, could be acknowledged as having “stood alone … in defence of liberty and defence of the English language”.