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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
    1. Entick v Carrington (1765) 19 St. Tr. 1030
    2. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
    3. Liversidge v Anderson and Another [1942] AC 207; [1941] 3 All ER 338
    4. London Tramway Co. v London County Council [1898] AC 375
    5. Harris v Minister of the Interior (no.2) (1952) 4 SA 769; in the Appellate Division of the Supreme Court of South Africa
    6. Collins v Minister of the Interior [1957] 1 SA 552 (AD); in the Appellate Division of the Supreme Court of South Africa.
    7. R v Inland Revenue Commissioners and others, ex parte Rossminster Ltd (CA) [1980] AC 952; [1979] 3 All ER 385
    8. R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 (CA)
    9. Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208
    10. Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)
    11. R v R (Rape: marital exemption) [1991] 4 All ER 481
    12. R v C [2004] EWCA Crim 292: [2004] 3 All ER 1: [2004] 1 WLR 2098 (CA).
    13. Re Spectrum Plus Ltd [2005] UKHL 41; [2005] 4 All ER 209
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Liversidge v Anderson and Another [1942] AC 207; [1941] 3 All ER 338

VISCOUNT MAUGHAM:....The appellant is...detained by an order made by Sir John Anderson as Home Secretary on 26 May 1940, under the Defence (General) Regulations 1939 reg 18B. The detention has been continued by the present Home Secretary. The validity of that detention has been raised in the action in which the appellant claims damages for false imprisonment and consequential relief. Such an action used to be described as an action for trespass vi et armis....The respondents rely on the order for the detention of the appellant above referred to. If it is valid, the action must clearly fail.

The regulations authorised by the Act are clearly of the widest possible character, and may affect, not only the liberty, but also the property, of all subjects....

I propose first to deal with the important question of the construction of the words in the regulation, "If the Secretary of State has reasonable cause to believe etc." ( that is, the question whether, as the appellant contends, the words require that there must be an external fact as to reasonable cause for the belief, and one, therefore, capable of being challenged in a court of law, or whether, as the respondents contend, the words in the context in which they are found point simply to the belief of the Secretary of State founded on his view of there being reasonable cause for the belief which he entertains....

Before dealing with the construction of the regulation, it is desirable to consider how the matter should be approached. The appellant's counsel truly say that the liberty of the subject is involved. They refer in emphatic terms to Magna Carta and the Bill of Rights, and they contend that legislation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown....I hold that the suggested rule has no relevance in dealing with an executive measure by way of preventing a public danger when the safety of the state is involved. The language of the Act of 1939 shows beyond a doubt that defence regulations may be made which must deprive the subject "whose detention appears to the Secretary of State to be expedient in the interests of the public safety" of all his liberty of movement while the regulations remain in force. There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary of State....

My Lords, I am not disposed to deny that in the absence of a context, the prima facie meaning of such a phrase as "if AB. has reasonable cause to believe" a certain circumstance or thing should be construed as "if there is in fact reasonable cause for believing" that thing, and if AB believes it. However, I am quite unable to take the view that the words can only have that meaning. It seems to be reasonably clear that, if the thing to be believed is something which is essentially one within the knowledge of AB or one for the exercise of his exclusive discretion, the words may well mean, "if A.B. acting on what he thinks is reasonable cause (and, of course, acting in good faith) believes" the thing in question....

It is added that the present reg 18A is not the original regulations, but a new regulation (see SR and O 1939, No 1681, bearing date 23 November), replacing the words in the original clause, which ran thus:

"The Secretary of State if satisfied with the respect to a particular person that with a view to preventing him acting in any manner prejudicial to the public safety or the defence of the realm it is necessary to do so may [inter alia] make an order directing that he be detained".

It is apparent that this is an earlier and imperfect attempt at the present regulation, which entirely supersedes it....

The result is that there is no preliminary question of fact which can be submitted to the courts, and that, in effect, there is no appeal from the decision of the Secretary of State in these matters, provided only that he acts in good faith. It follows, and it is not disputed by the appellant's counsel, that, on this view, the application for particulars must fail.

LORD ATKIN:....They [the words of reg. 18B] are simple words, and, as it appears to me, obviously give only a conditional authority to the Minister to detain any person without trial, the condition being that he has reasonable cause for the belief which leads to the detention order. The meaning, however, which...appears to have found favour with some of your Lordships is that there is no condition, for 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 as to whether or not he should detain a subject. It is an absolute power, which, so far as I know, has never been given before to the executive, and I shall not apologies for taking some time to demonstrate that no such power is in fact given to the Minister by the words in question....

It is surely incapable of 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 it is a condition to a right (including a power) granted to A, whenever the rights comes into dispute, the tribunal, whatever it may be, which is charged with determining the dispute must ascertain whether the condition is fulfilled. In some cases the issue is one of the fact. In others, it is one of both fact and law. In all cases, however, the words indicate an existing something the having of which can be ascertained, and 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".... "Reasonable cause" for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right. If its meaning is the subject of dispute as to legal rights, then ordinarily the reasonableness of the cause, and even the existence of any cause, is in our law to be determined by the judge, and not by the tribunal of fact....

[T]his meaning of the words has been accepted in innumerable legal decisions for many generations, and that 'reasonable cause' for a belief, when the subject of legal dispute, has always been treated as an objective fact, to be proved by one or other party and to be determined by the appropriate tribunal.....

So, far, I have sought to establish that the words in question are not ambiguous, that they have only one plain and natural meaning, that with that meaning the words have been used at common law and in numerous statutes, that, whenever they are used, the courts have given them the meaning I suggest and have considered that they give rise to a justiciable issue, and that, as to the 'subjective' meaning now contended for by the Secretary of State, it has never at any time occurred to the mind of counsel or judges that the words are even capable of meaning anything so fantastic....

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. Their function is to give words their natural meaning, not, perhaps, in war time, leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin, cited with approval by Lord Wright in Barnard v Gorman. Pollock CB said at p381:

"In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute."

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 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. 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 protest, even if I do it alone, against a strained construction put upon words, with the effect of giving an uncontrolled power of imprisonment to the Minister. To recapitulate, the words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them. They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the Defence Regulations generally and in this regulation in particular. Even if it were relevant; which it is not, there is no absurdity, or no such degree of public mischief as would lead to a non-natural construction.

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 different things'. 'The question is', said Humpty Dumpty, 'which is to be master(that's all". (Alice Through the Looking Glass, c vi). 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.

Yemshaw v Hounslow LBC[2011] UKSC 3; [2011] 1 W.L.R. 433; [2011] 1 All E.R. 91

BARONESS HALE OF RICHMOND JSC

1 The issue in this case is what is meant by the word "violence" in section 177(1) of the Housing Act 1996 . Is it limited to physical contact or does it include other forms of violent conduct? The Court of Appeal, as it was bound to do by the earlier case of Danesh v Kensington and Chelsea Royal London Borough Council [2007] 1 WLR 69 , held that it was limited to physical contact: [2010] HLR 399 . The claimant contends that it is not. As the claimant is a woman, and the majority of victims of all forms of domestic violence are women, I shall refer to the victim as "she" throughout. But of course I realise that men can be victims too.

.......

13 Danesh v Kensington and Chelsea Royal London Borough Council [2007] 1 WLR 69 concerned the meaning of non-domestic "violence" in section 198 . The applicant and his family were asylum seekers who had been living for just over a year in Swansea when they were granted indefinite leave to remain and thus became eligible under Part VII of the 1996 Act. They applied to Kensington which referred them to Swansea. They complained of trouble from local youths in Swansea, shouting abuse and making insulting gestures, racist abuse on a bus, and two specific incidents of assault outside a community centre and in the city centre. The local authority took the view that the two assaults were random incidents of crime which might happen anywhere to anyone and were not part of a course of harassment against the applicant or his family. The verbal abuse did not amount to a threat of violence and accordingly there was no reason to believe that it was more likely than not that violence would result if they returned to Swansea.

14 The Court of Appeal held that in this context, "violence" involved some sort of physical contact: Neuberger LJ accepted the council's contention that "In section 198 'violence' means physical violence, and the word 'violence' on its own does not include threats of violence or acts or gestures, which lead someone to fear physical violence": see para 14. He went on to give five reasons for this, to which I shall return.

......

The meaning of "violence"

19 In the Danesh case [2007] 1 WLR 69 the first, and principal, reason given was that "physical violence" is the natural meaning of the word *440 "violence": para 15. I can readily accept that this is a natural meaning of the word. It is, for example, the first of the meanings given in the Shorter Oxford English Dictionary . But I do not accept that it is the only natural meaning of the word. It is common place to speak of the violence of a person's language or of a person's feelings. Thus the revised 3rd edition, published in 1973, also included "vehemence of personal feeling or action; great, excessive, or extreme ardour or fervour ... passion, fury"; and the 4th (1993), 5th (2002) and 6th (2006) editions all include "strength or intensity of emotion; fervour, passion". When used as an adjective it can refer to a range of behaviours falling short of physical contact with the person: see, for example, section 8 of the Public Order Act 1986 . The question is what it means in the 1996 Act.

20 The 1996 Act was originally concerned only with "domestic violence", that is violence between people who are or were connected with one another in an intimate or familial way. By that date, it is clear that both international and national governmental understanding of the term had developed beyond physical contact....... Internationally, in 1992 the United Nations Committee, which monitors the Convention on the Elimination of all Forms of Discrimination against Women ("CEDAW"), adopted General Recommendation 19, which included in its definition of discrimination in relation to gender based violence "acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty". In 1993, the General Assembly adopted the Declaration on the Elimination of Violence against Women, defined for this purpose as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women" (article 1).

21 Nationally, in 1993 the House of Commons Home Affairs Committee in its Third Report on Domestic Violence adopted the definition "any form of physical, sexual or emotional abuse which takes place within the context of a close relationship" (Session 1992-93) (HC 245-I, para 5). The Home Affairs Committee report used two reports as the basis for its inquiry: the Report on Domestic Violence of a national inter-agency working party convened by Victim Support (1992) and the Report of the Law Commission on Domestic Violence and Occupation of the Family Home (1992) (Law Com No 207). The Law Commission gave this explanation of domestic violence, at para 2.3:

"The term 'violence' itself is often used in two senses. In its narrower meaning it describes the use or threat of physical force against a victim in the form of an assault or battery. But in the context of the family, there is also a wider meaning which extends to abuse beyond the more typical instances of physical assaults to include any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect upon the health and well being of the victim."

The recommendations made in the Law Commission's Report were embodied in the Domestic Violence and Occupation of the Family Home Bill which passed through most of its parliamentary stages in the session 1994-1995 before falling at the last hurdle. The same clauses were *441 reintroduced, with immaterial amendments, in the Family Law Bill 1995-1996 and became Part IV of the Family Law Act 1996 .

22 It cannot be a coincidence that the definition of an associated person in section 178 of the Housing Act 1996 bears a very close resemblance to the definition of an associated person for the purpose of occupation and non-molestation orders under the Family Law Act 1996, in section 62(3) to (6) of that Act. It will be recalled that the Housing Act 1996 had shifted the focus, away from the presence of the perpetrator in the same accommodation as the victim, to the nature of the relationship between them. These are strong indications of joined up thinking on the part of the legislators. The Home Affairs Committee had also made the link between the criminal and family law remedies, with which it was concerned, and the housing law remedies, which were then the concern of the Department of the Environment; thus, it recommended that local authorities "put an end to the nonsense where a victim fleeing domestic violence is deemed to have made herself intentionally homeless" and that "appropriate priority be given to rehousing victims of domestic violence": see para 131. In fact, the Department of the Environment had already gone some way towards meeting the first point, as the 1991 version of the Code of Guidance for Local Authorities on Homelessness had stated (para 7.11) that authorities should not automatically treat an applicant as intentionally homeless because she had failed to use legal remedies to protect herself from domestic violence. The Department of the Environment's Relationship Breakdown Working Party (see para 15 above) was well aware of the Law Commission's Report: not only was the Law Commission represented upon it but the Working Party recommended implementation of the Commission's two most relevant recommendations.

23 All of this indicates a consciousness in 1996 of the need to align housing, homelessness and family law remedies for victims of domestic violence, so that they could have a genuine choice between whether to stay and whether to go and the local authority or social landlord would not be obliged to continue to provide family-sized accommodation to the perpetrator. There was also an explicit acknowledgement in the report which led to the Family Law Act 1996 and by the Home Affairs Committee that "violence" could have a wider meaning than physical contact.

24 In my view, therefore, whatever may have been the original meaning in 1977 (and, for that matter, in the Domestic Proceedings and Magistrates' Courts Act 1978 ), by the time of the 1996 Act the understanding of domestic violence had moved on from a narrow focus upon battered wives and physical contact. But if I am wrong about that, there is no doubt that it has moved on now. In March 2005, the Home Office published Domestic Violence: A National Report , in which it was stated, at para 10:

"To support delivery across government and its agencies through a common understanding of domestic violence, we now have a common definition. This follows the definition already used by the Association of Chief Police Officers, and is: 'Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.'"

*442 That definition, or something very close to it, has been adopted by many official and governmental bodies, including the Association of Chief Police Officers: Guidance on Investigating Domestic Abuse (2008); the Crown Prosecution Service Policy for Prosecuting Cases of Domestic Violence (2010); the Ministry of Justice, in Domestic Violence: A Guide to Civil Remedies and Criminal Sanctions (February 2003, updated March 2007); and the UK Border Agency, in Victims of Domestic Violence: Requirements for Settlement Applications . .....

The 2006 version of the Homelessness Code of Guidance for Local Authorities is explicit, at para 8.21:

"The Secretary of State considers that the term 'violence' should not be given a restrictive meaning, and that 'domestic violence' should be understood to include threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between persons who are, or have been, intimate partners, family members or members of the same household, regardless of gender or sexuality."

This was new to the 2006 Code. The fourth reason given by the Court of Appeal in Danesh [2007] 1 WLR 69 , para 18 was that various passages in the previous, 2002, Code had given a different impression, for example by comparing "severe harassment" with "actual violence": see para 8.32.

25 However, it is not for government and official bodies to interpret the meaning of the words which Parliament has used. That role lies with the courts. And the courts recognise that, where Parliament uses a word such as "violence", the factual circumstances to which it applies can develop and change over the years. There are, as Lord Steyn pointed out in R v Ireland [1998] AC 147 , 158, statutes where the correct approach is to construe them "as if one were interpreting it the day after it was passed". The House went on in that case to construe "bodily harm" in the Offences against the Person Act 1861 (24 & 25 Vict c 100) in the light of our current understanding of psychological as well as physical harm. ...

27 "Violence" .....is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. There is no comprehensive definition of the kind of conduct which it involves in the Housing Act 1996 : the definition is directed towards the people involved. The essential question......is whether an updated meaning is consistent with the statutory purpose-in that case providing a secure home for those who share their lives together. In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere.

28 That being the case, it seems clear to me that, whatever may have been the position in 1977, the general understanding of the harm which intimate partners or other family members may do to one another has moved on. The purpose of the legislation would be achieved if the term "domestic violence" were interpreted in the same sense in which it is used by Sir Mark Potter P, the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251 , para 2, suitably adapted to the forward-looking context of sections 177(1) and 198(2) of the Housing Act 1996 : "'Domestic violence' includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm."

......

37 I would therefore allow this appeal and remit the case to be decided by the local housing authority.