Rex v. BOTTRILL. Ex parte KUECHENMEISTER.
Court of Appeal (1946)
Scott, Tucker and Asquith L.JJ.
By virtue of the Royal Prerogative, the Crown, acting through the Executive, has the right to intern, expel, or otherwise to control an alien enemy according to its discretion. That right cannot be questioned or controlled in or by the King's Courts. The court, therefore, will not entertain an application for a writ of habeas corpus at the instance of an alien enemy interned by order of the Executive.
By English law the King alone can make peace with a State with which this country has been at war and thereby bring the state of war to an end, and a certificate of His Majesty's Secretary of State for Foreign Affairs to the effect that His Majesty is still at war with that State is conclusive evidence that the state of war is not at an end, even though it recites facts - such as the unconditional surrender of the enemy State, the displacement of its central government and the assumption of supreme authority with respect to that State by the governments of His Majesty and his Allies - which might be regarded in international law as putting an end to the state of war.
R. v. Vine Street Police Station Superintendent, Ex parte Liebmann  1 K. B. 268 approved.
Ex parte Weber  1 K. B. 280 (n);  1 A. C. 421 considered.
Decision of Divisional Court affirmed.
APPEAL from a decision of the Divisional Court.
An application was made to the Divisional Court for a writ of habeas corpus by Carl Walter Kuechenmeister, a German national, to be directed to the respondent, Lt.-Col. Edward Richard Bottrill, Commandant of the Internment Camp at Beltane School, Wimbledon. In an affidavit, the applicant stated as follows: He came to England in 1928 and was granted the right of permanent residence in 1931. He then married an Englishwoman, by whom he had three children, all born in England. In May, 1939, he applied for British nationality. In August of that year he was asked by the Home Secretary to leave the country. He thereupon went to Eire, where he remained until December, 1939, when he was informed by the Home Office that he might return to England to appear before an advisory committee on the question of his internment. He did so, and was sent to Australia for internment. He remained there until 1945, when he returned to England, being sent to the internment camp at Beltane School on his arrival.
At the hearing of the application before the Divisional Court, the Attorney General produced a certificate dated April 2, 1946, from Mr. Bevin, Secretary of State for Foreign Affairs, which stated as follows: "(1.) That under para. 5 of the preamble to the declaration, dated June 5, 1945, of the unconditional surrender of Germany, the Governments of the United Kingdom, the United States of America, the Union of Socialist Soviet Republics, and France assumed ' supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command, and any State, municipal or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not effect the annexation of Germany.' (2.) That in consequence of this declaration, Germany still exists as a State and German nationality as a nationality, but the Allied Control Commission are the agency through which the government of Germany is carried on. (3.) No treaty of peace or declaration by the Allied Powers having been made terminating the state of war with Germany, His Majesty is still in a state of war with Germany, although, as provided in the declaration of surrender, all active hostilities have ceased."
The Divisional Court held that that certificate was conclusive as to the matters which it purported to certify; that the applicant accordingly remained an alien enemy notwithstanding the unconditional surrender of Germany; and that, as an alien enemy interned in this country, he could not apply to the court for a writ of habeas corpus.
The applicant appealed.
July 30. The following judgments were read: SCOTT L.J. (byASQUITH L.J.).
The Divisional Court has held that the applicant is not entitled to a writ of habeas corpus, and the ground of the decision is that he is an alien enemy and, as such, lawfully detained by the Crown. The motive for the application for the writ is undoubtedly the intimation spoken to in the applicant's affidavit that he is to be deported to Germany. I postpone for the moment consideration of the relevancy of this intimation, and assume that his purpose in asking for the writ is merely to challenge the Crown's right to intern him in the United Kingdom.
In support of this contention his counsel, Mr. Foster, made two main points, although he sub-divided his second point. First, he submitted that the applicant, who was admittedly still an alien, was not an alien enemy. On this his essential proposition was that the declaration at Berlin of June 5, 1945, by the United Nations ended the war, with the result that the applicant, who was a natural-born German and had never lost that nationality, although he had lived in England for many years, married an English wife and had children by her, ceased thereupon to be an alien enemy. That contention had much theoretical support in international law, in that the central German government of Germany was thereupon displaced, and its place completely taken by a government composed of the four United Nations. War predicates at least one other State against which the war is waged, and the Declaration of Berlin ended Germany, for the time being, as a separate State. In support of that proposition he argued that a sovereign State which has no sovereign government is a contradiction in terms; and that, even if such a State be possible in international law, a State which has no national government cannot wage a war, or be at war. He further contended that, although the Secretary of State for Foreign Affairs had, on April 2, 1946, certified in the present case that the war was still continuing, and although counsel conceded that prima facie such a certificate was, on well recognized principles, normally binding on the court, it was not binding on the facts of the present case, because the declaration of Berlin was the act of the King, and that act was conclusive that the King's Secretary of State for Foreign Affairs had no authority thereafter to certify that the war was still going or. This argument at first sight seems formidable, but in my opinion it rests on a fallacy, which can be stated thus: In the British constitution, which is binding on all British courts, the King makes both war and peace, and none the less so, in the eyes of the law, that he does so as a constitutional monarch upon the advice of his democratic Cabinet. If the King says by an Act of State that the Commonwealth of countries over which he reigns is at war with a particular foreign State, it is at war with that State, and the certificate of the Secretary of State is conclusive; and I do not deviate in order to consider the constitutional position of Eire, which I regard as anomalous. When the King makes peace with an enemy State, that war comes to an end, but it does not come to an end before that peace is made. Whether international law has a different rule is irrelevant; for international law is only binding on our courts in so far as it has been adopted and made part of our municipal law; and the above propositions go, in my opinion, as far as our municipal law has gone.
It follows, therefore, that the certificate of the Secretary of State for Foreign Affairs, which says in terms that we are still at war with Germany, is binding at least in our municipal law, and therefore on all the King's courts. Had it been otherwise, I should have been disposed to hold that the authority of the Secretary of State for Foreign Affairs at any date subsequent to His Majesty's declaration made through his plenipotentiaries at Berlin in June, 1945, was limited by that declaration. For the reasons which I have given, however, I am satisfied that an inference from the declaration, that the King had then brought to an end the state of war, would be erroneous. In our municipal law, whether it differs from international law or not, a state of war can continue, and the war with Germany is continuing, in spite of the fact that Germany then ceased to have any independent central government. The above was the point on which the applicant's appeal mainly rested, and on it I am satisfied that the judgment of the Divisional Court is right, for the reasons stated in Lord Goddard C.J.'s judgment.
The applicant's alternative argument, put in more ways than one, was in effect this: He conceded that in this court the decided cases made it impossible for him to argue that a prisoner of war had, as against the Executive, any right to a writ of habeas corpus in order to vindicate his right of freedom of residence within the United Kingdom; but he contended that the mere fact of enemy nationality was no bar to that writ, and that internment in a camp by the Executive did not of itself make an alien enemy a prisoner of war. This point had in effect been decided against Mr. Foster's contention by a Divisional Court in R. v. Superintendent of Vine Street Police Station; Ex parte Liebmann, but he submitted that that decision was wrong. In my opinion it was right, and I think that the decision of the Court of Appeal in Ex parte Weber, an appeal from which, on the issue of the applicant's nationality, was dismissed by the House of Lords in the following February, was rightly treated by Bailhache and Low JJ. in the Divisional Court in Ex parte Liebmann as justifying their decision.
The King, under our constitution, is under no obligation to admit into the United Kingdom, or to retain here when admitted, any alien. Every alien in the United Kingdom is here only because his presence has been licensed by the King. It follows that at common law the King can at will withdraw his licence and cause the Executive to expel the alien, whether enemy or friend: see Attorney- General for Canada v. Cain, where Lord Atkinson said: "One of the rights possessed by the supreme power in every state is the right to refuse to permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the state, at pleasure, even a friendly alien, especially if it considers his presence in the state opposed to its peace, order, and good government, or to its social or material interests." That legal position is not affected by the political consideration, for which this country has in past history justly gained a good reputation, that it is our practice both to welcome alien visitors and, indeed, to give asylum to political refugees. How far the common law position is affected by the series of statutes passed about alien friends it is unnecessary to consider, for the Prerogative was not affected by them as regards alien enemies. Even an alien enemy may live here in perfect freedom under the King's licence, as was pointed out by Lord Goddard C.J., in his reasons for the judgment appealed from; but, on withdrawing that licence, the King may intern, or even expel, the alien enemy. If in time of war he decides through his appropriate officers of state, primarily the Home Secretary, that considerations of public safety make that course necessary, I think that the alien enemy so interned ipso facto becomes a prisoner of war; but, in my opinion, the establishment of that status is not a condition precedent to the power of the King to expel any alien enemy. Whether the applicant was or was not, is or is not, a prisoner of war is irrelevant in the present appeal. In truth I can see no half-way house cognizable by the common law between a complete discretion vested in the Royal Prerogative and a concession to alien enemies of rights equivalent to those of British subjects of the King at common law or of alien friends granted to them by statute; and in their case, it must be remembered, the necessity for control measures called for legislation and defence regulations. What measures should in time of war be taken by the Executive in the case of alien enemies must, it seems to me, necessarily rest in the discretion of the Executive, and the courts must not be tempted into finding reasons for controlling the Executive by the possibility of hardship which may be present in an individual case or can easily be imagined.
Some argument was addressed to us on the footing that aliens residing within the realm under the licence of the King, whether friend or enemy, enjoy the normal rights of subjects of the King in his courts, because they are here within his protection, and therefore owe to him some degree of allegiance. If, then, an alien enemy may so sue and be sued, why should he not be entitled to his writ of habeas corpus? The answer is plain: as against a subject, or another alien, or any persona juridica there is no disqualification; but, if he seeks the writ in order to vindicate his own freedom from control by the Executive, he is necessarily challenging the very right to control him which is vested under our constitution in the discretion of the King. The argument is therefore wholly beside the point. It follows, in my opinion, that the judgment of Lord Goddard C.J. was right, and that habeas corpus does not lie against the Crown at the instance of an alien enemy interned for the safety of the realm in time of war by an order of the Executive acting within its discretional authority on behalf of the King. Neither in the above conclusions nor in the reasoning by which it is reached, do I touch on the locus standi in judicio of an alien enemy, whether free or interned, in regard to his legal rights other than the one claim put forward in the present proceedings, that is to say for the grant of a writ of habeas corpus against the King's Executive for the purpose of challenging the King's Prerogative to intern or expel an alien enemy.
The appeal must be dismissed with costs.
I agree that this appeal fails. Mr. Foster's first submission was that the certificate given by the Secretary of State for Foreign Affairs dated April 2, 1946, was ambiguous and that it required further elucidation before the court could be satisfied that a state of war still exists between His Majesty and Germany. His argument was based on the proposition that war can only take place between two sovereign independent States and that the declaration of unconditional surrender referred to in the certificate showed that Germany no longer existed as a sovereign independent State. In my opinion, there can, on the authorities, be no question but that the certificate of the Foreign Secretary given on behalf of the Crown as to the existence of a state of war involving His Majesty is conclusive and binding on this court, and this is so whether questions of fact or law are involved therein. I can see no ambiguity in the certificate in this case, and I think that its third paragraph is conclusive against the applicant.
As to the second point, namely, whether the applicant, who is an alien enemy interned by Executive action in time of war, has a remedy by way of habeas corpus in respect of that detention, I also agree that, in the circumstances disclosed in the present case, he has made out no case for the issue of the writ. The precise grounds on which he is precluded from this remedy, however, are, I think, open to question. It was decided by this court in Schaffenius v. Goldberg , that an alien enemy resident in this country in time of war, even though interned, has a right to pursue his ordinary civil remedies in the King's courts against the King's subjects, and that the internment of a registered alien enemy does not operate as a revocation of the licence to remain in this country which is implied in registration. On the other hand, in Rex v. Superintendent of Vine Street Police Station; Ex parte Liebmann, a Divisional Court upheld a preliminary objection by the Solicitor General that the court had no jurisdiction to entertain the application on the ground that the applicant was a prisoner of war. He was not a combatant, but an interned alien enemy civilian. Bailhache J., after referring to the presence of spies and modern methods of warfare which would now be described as "total" war, said: "I have come to the conclusion that a German subject resident in the United Kingdom, who in the opinion of the Executive Government is a person hostile to the welfare of this country and is on that account interned, may properly be described as a prisoner of war, although not a combatant or spy." He was accordingly held to be ineligible for a writ of habeas corpus on the authority of the cases dealing with combatant prisoners. Although the actual decision was given on the preliminary objection, the case was heard on its merits before judgment was delivered, and, after dealing with the preliminary objection, Bailhache J., proceeded: "As the preliminary objection succeeds it is unnecessary to say more; but these courts are specially charged to safeguard the liberty of the subject as one of their most sacred duties. The courts owe that duty not only to the subjects of His Majesty, but also to all persons within the realm who are under His Majesty's protection and entitled to resort to these courts to secure for them any rights which they may have, and this whether they are aliens or alien enemies. I think it right, therefore, to add that, deeply impressed as I am with the sanctity of the liberty of the subject, I cannot forget that above the liberty of the subject is the safety of the realm, and I should be prepared to hold, as at present advised, that when the internment of an alien enemy is considered by the Executive Government, charged with the protection of the realm, desirable in the interests of the safety of the realm, and the Government thereupon interns such alien enemy, the action of the Government in so doing is not open to review by the courts of law by habeas corpus."
For myself, I should prefer this reasoning as the basis for the refusal of the writ, as it shows that the real objection is that an alien enemy cannot be heard to complain against the Crown or its officers in respect of acts done under and within the limits of the Prerogative, whereas the preliminary objection based on the status of prisoner of war appears to me to be open to doubt, and, moreover, to suggest that as a prisoner of war he could not even have habeas corpus against a private citizen who was imprisoning him without any pretence of authority from the Crown. Ex parte Weber is not, I think, conclusive either way as to the precise ground for refusal of the writ.
It does not appear to me to be necessary to pursue this matter further since I am satisfied that in the result Ex parte Liebmann was rightly decided, and the present case appears to me to be indistinguishable therefrom. Assuming the applicant's right to be heard, this affidavit, in my view, discloses no case for the issue of the writ, and the mere statement that he has been advised by his solicitors that it is the intention of the Home Office to deport him to Germany does not, in my opinion, establish even a prima facie case of excess or abuse of power under the Prerogative.
For these reasons I agree that the appeal fails.
I agree, but would add something in deference to the argument of Mr. Foster.
His first and more important point is that there is now no war between His Majesty and Germany; hence the applicant cannot be an alien enemy, that term having lost its meaning through the cessation of the war. The argument is that in May or June, 1945, Germany was so obliterated and extinguished that she ceased to be a State or to have a government, and that His Majesty can only be at war with another State or government which is in being. The difficulty with which this argument is faced, is, of course, the certificate of the Secretary of State for Foreign Affairs, which asserts in terms that the German State and German nationality still subsist, and that that State is still at war with His Majesty. Such a certificate is normally conclusive on matters both of fact and law, and I think that Mr. Foster admits that if the certificate in this case had confined itself to asserting that there is a German State with which His Majesty is still at war, its production would have been fatal to his argument. But he contends: (1.) that this certificate refers to, and quotes, the Allied declaration of June 5 on the unconditional surrender of Germany, and, as regards its second paragraph at least - the paragraph in which the continued existence of the German State and German nationality are affirmed - appears to base this affirmation on the terms of that declaration; (2.) that these terms themselves are quite inconsistent with the continued existence of Germany as a State after the summer of 1945.
Speaking for myself, I doubt if these terms are so inconsistent; but I will assume the contrary. On this assumption the answer to Mr. Foster's argument seems to me to be that if, in a certificate of this sort, the conclusions are unqualified and unambiguous, it does not matter whether those conclusions are combined with, or even professedly based on, materials apparently inconsistent with them. Duff Development Company Ld. v. Kelantan Government, seems to me a direct authority in support of this proposition. The final paragraph of the certificate - which, in that case, was given by the Secretary of State for the Colonies - asserted in substance that the Sultan of Kelantan was a sovereign (or an independent sovereign; they are the same thing). But an earlier paragraph had recited a treaty between the Sultan and His Majesty whereby the Sultan had seemingly surrendered some of the ordinary adjuncts or incidents of sovereignty. This was held not to invalidate the conclusion that he was a sovereign. So, in my view here, it is the conclusion which is operative, even if - which I do not concede - it be a non sequitur from a preamble or premises which, in the certificate, precede it. The conclusion is that His Majesty is still at war with a still existing German State.
The other issue raised by Mr. Foster, which proceeds on the assumption that the applicant is an alien enemy and has been interned under the Prerogative, is whether he can sue out habeas corpus against the Crown or its agents. On this point I entirely concur with the conclusion of my Lords, that he cannot do so. Speaking for myself only, I would go further and advance the following general propositions as warranted in law:- (1.) It is beyond dispute that the Acts of Parliament relating to the detention of alien enemies, in the wars of both 1914 and 1939, expressly preserved any powers which might exist under the Rogal Prerogative in that regard. (2.) This applicant was, and is, detained under these prerogative powers. This appears from the affidavit of the Home Secretary. (3.) The Crown is entitled, in virtue of its Prerogative, to detain an alien enemy. There is no authority which decides the contrary, and Rex v. Commandant of Knockaloe Camp, Ex parte Liebmann and Ex parte Weber, support the proposition, though in the latter case it was rather assumed than debated. (4.) Whether or not such detention constitutes the detainee technically a prisoner of war - which in my view it well may - he is left free to maintain a civil action in contract against a British subject: Schaffenius v. Goldberg; and possibly in tort: Princess Thurn und Taxis v. Moffitt. Internment does not revoke his licence for this purpose; though in the nature of the case it revokes his licence to remain at large. (5.) Whether or not such a detainee is a prisoner of war, he is disentitled to the remedy of habeas corpus against the Crown or its agents in respect of his detention by them (aliter, possibly, in respect of detention by a private individual). In Ex parte Liebmann, in which the detainee was indeed held to have the status of a prisoner of war, Bailhache J., as my brother Tucker has pointed out, laid down a wider principle, which I believe to be well founded. (6.) Detention by the Crown of an enemy alien may well be an act of state; such acts, in my opinion, are by no means limited to acts done abroad, in cases at least where the complainant is an alien enemy.
I would say in conclusion that I am unconvinced by counsel's attempted distinction between Ex parte Liebmann and the present case. He urged that in that case, decided in 1915, not merely was a war technically proceeding between Germany and His Majesty, but active hostilities, and that those hostilities were "total" war in the sense that any German civilian in this country was a potential spy. If, which I question, this was the sole foundation of the decision in that case, it may well, in my view, be more, rather than less, applicable to-day, when, the combatant forces of Germany having been utterly defeated, no means remain to her for pursuing the struggle beyond underground agencies in Allied countries, acting by way of espionage, propaganda and the like.
I agree that the appeal should be dismissed.