Manifestations of the constitution’s military spirit

Shortly after the outbreak of the First World War, Dicey completed his new Introduction to the last edition of Law of the Constitution that would appear in his lifetime. In its conclusion, he depicted the day as having come ‘when the solemn call to the performance of a grave national duty has united every man and every class of our common country in the determination to defy the strength, the delusions, and the arrogance of a militarised nation, and at all costs to secure for the civilised world the triumph of freedom, of humanity, and of justice.'^[162] The military spirit to which Dicey then gave voice reflected the build-up to war and its outbreak.

Facets of a similar spirit, it will be argued, were, first, already evident although less prominent in Dicey's own earlier lectures and did, secondly, profoundly affect the constitution's later development by way of leading administrative cases decided under the shadows of the First and Second World Wars.

Dicey's lecture on Prussian constitutionalism was penned in 1897, long before the threat of war with Germany had been realized. In that lecture, Dicey expressed a realistic appreciation and even some admiration for its military spirit, which he attributed to military necessities.^[163] That appreciation was particularly evident in his support for Otto von Bismarck's position in the constitutional conflict between the Prussian Crown and Parliament of 1862-66.^[164] He described how, as leading minister, Bismarck had effectively governed for five years in defiance of Parliament and its constitutional refusal to settle the budget for implementing a scheme of military reorganization. He added that ‘constitutional conflicts are at bottom contests decided by policy and power rather than by argument or law'.^[165] In Dicey's view, Prussia owed ‘its greatness and its existence to the maintenance of its armed power' in the Prussian army upon the reorganization of which German political unity was founded.^[166] Although Dicey presented Prussian constitutionalism as essentially different from English constitutionalism, his appreciation of military realities and necessities, it will be shown, was not confined to it.

In the third and later editions of Law of the Constitution, Dicey devoted one chapter to martial law but made clear that it was unknown to English law in the proper sense of ‘the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals' as meant in many other countries.^[167] What was, however, for Dicey part of the law of England was martial law in the sense of the power of the government ‘at whatever cost of blood or property may be necessary' to maintain public order or resist with force invasion, insurrection, riot, etc.^[168] English martial law was thus the ordinary law of parliamentary statute and of judicial decisions, under which Dicey envisaged a wide-ranging freedom of officials to take whatever action be necessary in the circumstances subject to limited judicial control. Apart from countenancing in another chapter the ‘arbitrary powers' with which the executive might be armed by a Habeas Corpus Suspension Act ‘coupled with the prospect of an Indemnity Act',^[169] he described, for example, the effect of the enactment of the Riot Act 1714 in straightforward terms. If the Act's conditions were met, mainly of notice and necessity, he stated that the magistrate might ‘command the troops to fire upon the rioters or charge them sword in hand'.^[170]

Under martial law, Dicey envisaged judicial control, but its limited scope is apparent from the chapter's concluding reference to Wolfe Tone’s Case.^[171] Dicey concluded his chapter with the claim that ‘no more splendid assertion of the supremacy of the law can be found' than in the Irish King's Bench's protection of Wolfe Tone by writ of habeas corpus.^[172] Wolfe Tone, who had participated in the French invasion of Ireland of 1798, was captured and court-martialed by the English army (although he was commissioned as an officer in the French army, not the English), and was about to be executed by public hanging.

The Irish King's Bench did eventually order that a rule suspending the execution be made and served, but only after Wolfe Tone had already slit his own throat (so as to prevent, as some supposed, his being paraded through the streets prior to execution) and only after the sheriff of court had repeatedly been refused admittance to the army barracks. Behind Dicey's celebration, despite the obvious obstacles and an appalling outcome (of which he made no mention), was realistic or pragmatic acceptance of the limitations upon judicial control in a military context.

That the ordinary law of parliamentary statute and of judicial decision was seriously affected during and immediately after the two world wars is indisputable and well recognized.^[173] To allow executive detention and other emergency measures, the earlier practice of passing a Habeas Corpus Suspension Act gave way to the passing of primary and secondary legislation that granted wide-ranging powers to the executive and attempted to exclude judicial supervision.^[174] The submissive or deferential judicial response in Liversidge v Anderson^{^[175]}is common knowledge. In the early 1970s, with reference to leading cases such as Duncan v Cammed, Laird, & Co Lrd,^[176]B Schwartz and H W R Wade called the 1940s and 1950s ‘the great depression' when ‘administrative law was at its lowest ebb for perhaps a century'.^[177] They suggested it was a ‘lingering effect' of the ‘spirit of abnegation and sacrifice' at time of war that had necessarily reconciled the country to much government by executive decree.^[178] Judicial review's development in the 1960s was, for them, a recovery from its ‘post-war relapse'.^[179]

Comprehensive treatment of the effect of the world wars upon English constitutional law is beyond the scope of this chapter. Its modest aim in this section is to show that it went well beyond a few wartime statutes and cases and that it needs renewed attention.

Its hypothesis is that judicial decision-making in wartime administrative cases was often such as to have an extraordinary longevity in the common law. It is that wartime judicial decisions gave rise to enduring difficulties when overstated and under-explained, as they often were by the judges who made them in a common executive-minded spirit at time of war. Their curtailment of the judicial role and of common law process and principle was often overstated so as to reduce the legal restrictions upon a massively overstretched government and the likelihood of further litigation. They were also often under-explained in supporting an executive-minded outcome that appeared obvious amidst wartime executive necessities, which were themselves often barely-mentioned, whether because they too were obvious and spelling out their implications risked creating ‘alarm or despondency'^[180] or whether because of a judicial preference for the generality and legitimacy of common law precept over the specificity and changeability of bare executive necessity. The enduring difficulty for later courts and counsel was that the context of the wartime decision was then no longer appreciated or no longer fully appreciated. To the extent it was appreciated by them, the wartime decision's precedential effect in peacetime was weak and uncertain; to the extent it was not appreciated, its precedential effect appeared strong and certain but might be wholly or readily mistaken.

This chapter's hypothesis on wartime judicial decision-making and its enduring legacy depends for plausibility upon the effect of war on legal accountability in leading administrative cases. How accountability was affected shall be presented below by considering each of the three basic accountability questions described above^[181]— questions about the authority, the process, and the applicable standards.

Under the first question, probably the best-known wartime case, excluding in effect the supervisory role of the court as the authority to which accountability was owed, has been Liversidge v Anderson.^[182] It has been for that reason, it will be argued, the least problematic as a precedent in peacetime.

In issue, for the purpose of executive detention, was the interpretation of the phrase ‘[i]f the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations' in Regulation 18B of the Defence (General) Regulations 1939, made under the Emergency Powers (Defence) Act 1939. The majority in the House of Lords interpreted ‘reasonable cause to believe' to require not that there in fact be reasonable cause in the view of the court but that it be thought by the court that there be reasonable cause in the view in good faith of the Home Secretary accountable to Parliament.^[183] Liversidge has long been controversial,^[184] in part because of Lord Atkin's strong dissent, rejecting the majority's interpretation for importing a novel and unnatural meaning into the common law and making the celebrated claim: ‘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'.^[185] As much in Lord Atkin's rhetoric as in the speeches of the majority, the war context was unmistakable and fully recognized.^[186] Liversidges precedential authority was accordingly short-lived after the war. Apart from the abolition of Regulation 18B by an Order in Council on VE Day,^[187] Liversidge was distinguished shortly after the war by the Privy Council in Nakkuda Ali as only applicable in that particular regulation's ‘context and attendant circumstances' to which the majority of the House had then given ‘elaborate consideration'.^[188] Its ‘very peculiar decision' was simply left ‘out of account' by Lord Reid in Ridge v Baldwin and, with reference to its wartime context, rejected as authority by Lord Diplock in Rossminster: ‘For my part I think 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'.^[189] What authority Liversidge has retained, save in comparably extraordinary circumstances, is that of Lord Atkin's dissent.^[190] ^{^[191] Far more enduring than L iversidge, and in that respect more problematic, has been the requisitioning case of Carltona¹³ decided the following year.
The court cursorily dismissed the appeal against the lower court's refusal to grant a declaration in regard to the requisitioning of a factory under Reg. 51(1) of the Defence (General) Regulations 1939. In his judgment, citing only the relevant legislation and no case law, and expressing barely-concealed impatience, for example, with the ‘complete misapprehension as to the facts' regarding the competent authority in the appellant's argument, with the ‘waste of time' to which the authority's specification of a particular ground for the requisition would give rise, and with the denial of any judicial competence ‘to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith', Lord Greene gave the appellant's objections short shrift.^[192] The case's obvious war context was barely mentioned in Lord Greene's argument for what is now commonly understood as the Carltona exception (to the rule against delegation) according to which Ministers are constitutionally accountable to Parliament, not the courts, for delegations within a department. Only in exemplifying its then practical necessity did Lord Greene mention the ‘thousands of requisitions in this country by individual ministers' to which they could not have been expected to attend to personally.^[193] Lord Greene's ill-considered, overstated, and under-explained wartime exception excluding any judicial supervision of departmental delegations was eventually—half a century later—qualified (without any reference to Carltona’s war context) in a dictum requiring that delegated decisions be suitable to the ‘grading and experience' of civil servants.^[194] The qualification's scope and the exception's reach, basis/character, and administrative suitability have long been the disputed outcome^[195] of a case insufficiently recognized as a product of its war context. Under the second basic accountability question—about adaptation of the process or the procedures—R v Halliday, exp Zadig^[196] may be compared with Duncan v Cammed, Laird, & Co Ltd.^{^[197]} In Halliday, Zadig was interned as a person ‘of hostile origin or associations' under Reg.14B of the Defence of the Realm (Consolidated) Regulations 1914, made under the Defence of the Realm Consolidation Act 1914. In habeas corpus proceedings, Zadig's counsel argued that the detention order was invalid because the regulation was ultra vires the Act, which only provided for the issuing of regulations ‘for securing the public safety and the defence of the realm'.^[198] They urged the House to follow the usual rule that penal statutes be strictly construed—that ‘an Act which infringes the liberty of the subject should be construed as far as possible in favour of the subject and against the Crown'—and argued that, had Parliament intended habeas corpus to be suspended, it would have followed its past practice of expressly enacting a Habeas Corpus Suspension Act.¹⁴¹ The majority decided, in the words of Lord Finlay, that the rule had ‘no relevance in dealing with an executive measure by way of preventing a public danger'.¹⁴² In place of a presumption to secure strict construction that Parliament did not intend to interfere with individual liberty, there was acknowledgment from the outset by Lord Atkinson that ‘[h] owever precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement'.^[199] In full recognition of the ‘supreme national danger' and ‘the circumstances of a war', the majority did not apply the presumption, and its inapplicability in similar circumstances was confirmed in Liversidge v Anderson.^[200] The majority's alteration of strict construction and of the presumption's application, thus also of process in interpretive practice, was overt and purposeful, thus clearly limited as a precedent to the context of war or a comparably grave national emergency.
In stark contrast with the clearly limited precedent in Halliday was that set in Duncan. On an objection to discovery made by the First Lord of the Admiralty in civil proceedings, the House of Lords unanimously concurred with Viscount Simon in ruling that the ‘principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld'.^[201] Although facing conflicting lines of authority, the House of Lords held further that an objection to production by the head of a government department, whether in respect of a particular document or a class of documents, should be treated by the court as conclusive.^[202] That the relevant documents related to the hull, machinery, and other parts of the Thetis submarine, which had been sunk shortly before the outbreak of the Second World War, could barely be identified from Viscount Simon's speech. He made only a brief tangential reference in his treatment of the limited prior publication of certain of the documents before the tribunal of inquiry into the loss of the Thetis, about which he remarked ‘some portion of the tribunal's sittings may have been secret'.^[203] At most, the war context of the case was implicit in his speech's sweeping conclusion: ‘the public interest is also the interest of every subject of the realm, and while, in these exceptional cases, the private citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the interests of the country as a whole were not ranked as a prior obligation'.^[204]
Duncan remained authoritative for twenty years after the war,^[205] until in the mid-1960s it was belatedly restricted to its war context. In Re Grosvenor Hotel, Lord Denning MR stated that the decision in Duncan ‘can be well explained on its own special [wartime] facts', and, in Merricks, Salmon LJ argued that its authority was limited in that the House Lords had been dealing ‘only with documents the production of which would manifestly have been injurious to national defence' and had decided the case ‘in the darkest days of the war... before the Battle of Alamein'.^[206] In Conway v Rimmer, the House of Lords did eventually reassert that public interest immunity to discovery was for judicial determination, and Lord Reid effectively distinguished Duncan:
I have no doubt that the case of Duncan v. Cammell, Laird & Co. Ltd. was rightly decided. The plaintiff sought discovery of documents relating to the submarine Thetis including a contract for the hull and machinery and plans and specifications... Any of these documents might well have given valuable information, or at least clues, to the skilled eye of an agent of a foreign power. But Lord Simon L.C. took the opportunity to deal with the whole question of the right of the Crown to prevent production of documents in a litigation. Yet a study of his speech leaves me with the strong impression that throughout he had primarily in mind cases where discovery or disclosure would involve a danger of real prejudice to the national interest. I find it difficult to believe that his speech would have been the same if the case had related, as the present case does, to discovery of routine reports on a probationer constable.^[207]
Lord Reid thus emphasized the context that the court in Duncan had barely mentioned.
The difficulties, however, created by Duncan, persisted until the House of Lords delivered its judgment in Conway v Rimmer. The Court of Appeal (Lord Denning dissenting) had followed the authority of Duncan and could find nothing in Viscount Simon's speech with which to justify a restrictive interpretation.^[208] After its decision, in his critical analysis of the use of authority in Duncan, because the judgment contained ‘not one word about the existence of a state of war', D H Clarke had reason to claim that Lord Denning's earlier statement in Grosvenor Hotel had exceeded ‘the bounds of judicial license' and to dismiss Salmon LJ's argument in Merricks as ‘apocryphal and unsupportable'.^[209] Apart from Duncans longevity, that its judges could be said by David Lanham there to have ‘delegated to the Minister their own power to control the administration of evidence'^[210] suggests the irregularity and extreme executive-minded breadth of their obviously but incognito wartime decision on the production of evidence crucial to due process.
Under the third basic accountability question—about the applicable standards—Amphitrite and Harman v Butt (particularly as followed immediately after the Second World War by Lord Greene in Wednesbury) are illustrative.^[211] In Amphitrite, a Swedish ship-owning company sued the Crown by petition of right for damages for breach of contract where the Crown had not abided by its undertaking during the First World War not to detain the S.S. Amphitrite when it entered a British port. In finding for the Crown, Rowlatt J's restrictive application of common law principle was a perfect illustration of overstatement and under-explanation:
I am of the opinion that there was not [an enforceable contract]. No doubt the Government can bind itself... by a commercial contract... But this was not a commercial contract... It was merely an expression of intention to act in a particular way. My main reason for so thinking is that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State.^[212]
Rowlatt J provided no case law in support of his no-fettering rule, only an analogy with the then rule of the dismissibility of Crown servants at the Crown's pleasure, itself a highly questionable^[213] earlier extension of the rule of the dismissibility of military officers. Rowlatt J's ‘very sweeping proposition', its ‘slender foundation',^[214] and the ‘uncertainties of its principle, and of its scope', especially its inapplicability to ordinary commercial contracts have long been objects of criticism and sources of difficulty.^[215] Amphitrite could not easily be judicially restricted to its war context. Although it had been argued for the Crown that the ‘granting of clearance to a ship cannot be made the subject of a contract' because it ‘must depend upon the military exigencies at the time that it is applied for',^[216] Rowlatt J made no mention of those exigencies in laying down his sweeping general rule. That it ‘arose out of the exigencies of war' was at least once, after more than half a century, given as a judicial reason for it not to be followed in a peacetime case.^[217]
Wednesbury review has been described as ‘shorthand for that constitutional school of thought which advocates judicial self-restraint in public law matters'— a shorthand which the ‘vast majority of lawyers would still acknowledge to be the guiding principle of our system of judicial review'.^[218] Lord Greene's famous formulation is said to be ‘the most frequently cited passage... in administrative law'.^[219] His main authority, described by him as ‘unassailable',^[220] was the wartime case of Harman v Butt, which has seldom been cited and, if cited, only alongside Wednesbury.
In Harman v Butt, on representations being made by the commanding officer of forces stationed in the neighbourhood under Reg. 42B of the Defence (General) Regulations 1939, that a cinema should be open on Sundays for the benefit of those forces, the licensing justices had granted a license under the Sunday Entertainments Act 1932 subject to the condition that no child under the age of sixteen should be admitted. In deciding that the condition was neither ultra vires nor unreasonable, Atkinson J disapproved and distinguished, as counsel for the licensing justices had argued, the conflicting authority of the majority judgment in Theatre de Luxe as applicable only to licenses granted under the Cinematograph Act 1909, not to licenses granted where the application had been made for the benefit of the armed forces.^[221] He stated broadly that the licensing justices have ‘a very free hand in the matter of imposing conditions’, ‘as long as those conditions are not unreasonable', and that ‘the court will be slow to interfere’ with the exercise of their powers.^[222] In his judgment, Atkinson J gave careful consideration^[223] to various matters rendering the condition not unreasonable. They included community reverence for Sunday and for church attendance by children, the availability of cheap seats for servicemen, and, most importantly, the undesirability of admitting children below the age of consent where the licence was being granted on the ground that members of the armed forces were in the vicinity in large numbers. Atkinson J did not quite spell out the implications of the age of consent, but concluded as follows:
Sunday audiences at this cinema consist almost entirely of men of the forces. The environment is not one suitable for girls under the age of sixteen. I cannot shut my eyes to the distressing facts with which no judge of assize nor any magistrate can fail to be familiar.^[224]
His own concern and appreciation for what must have concerned the licensing justices above all else was unmistakeable.
In Wednesbury, the Court of Appeal held that the local authority had not acted ultra vires in granting a licence to open on Sundays subject to the condition that no children under the age of fifteen be admitted, and similarly disapproved the contrary authority of Theatre de LuxeC'^[225]‘ In comparison with Atkinson’s J’s ruling in Harman v Butt, Lord Greene’s restrictive ruling on review for unreasonableness— only where the decision is ‘so unreasonable that no reasonable authority could ever have come to it’—was similarly broad but with additional embellishment (as well as tautology and ambiguity or inconsistency)^[226] and without any attention to the war context of the case upon which he principally relied. For Lord Greene, the decision in Harman v Butt was simply ‘unassailable’ with the only difference from the
case before him being that the licence there ‘originated in a representation by the commanding officer of forces stationed in the neighbourhood.'^[227] Lord Greene did not recognize any significance in that difference or mention any related difference despite their centrality to the reasoning^[228] of counsel for the licensing justices and to that of the court in Harman v Butt. In his use of precedent, Lord Greene yielded to a temptation—‘to take a statement of principle out of its context of fact'—about which he had warned extra-judicially before the war^[229] and of which he seems to have been all too aware.
For judicial review, the outcome of Harman v Butt, as followed by Lord Greene in Wednesbury, was a guiding principle that was overstated and under-explained on being abstracted from the war context in which it originated. It has long remained authoritative despite substantial and wide-ranging criticism.^[230]
The wartime administrative cases described above varied in overstatement, under-explanation, and recognition of context, hence in the certainty and desirability of their precedential effect. To the extent that ‘[in] law context is everything',^[231] they varied for that reason in quality. What is clear is that their effect was not limited to judicial review's ‘great depression'^[232] of the 1940s and 1950s. Decided in a realistic and highly pragmatic wartime spirit amidst the extraordinary necessities of war, they profoundly affected how the basic questions of accountability—about the authority, the process, and the applicable standards—were, in effect, answered for years to come. They necessitated continuing correction or civilianization in the common law's development in the aftermath of the world wars and thereafter. Their problematic and enduring outcome is an additional legal reason to avoid loose talk of a war on terror since the attacks of 11 September 2001 and later atrocities. Extraordinary necessities in the context of real war brought into acute, but often later barely recognizable, tension two basic features of the common law—attention to context in the treatment of precedent and claims to its continuity, that its laws, for example, ‘speak the same language in war as in peace'.^[233]
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Source: Bamforth Nicholas, Leyland Peter (eds.). Accountability in the Contemporary Constitution. Oxford University Press,2014. — 425 p.. 2014

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Manifestations of the constitution’s military spirit

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