Rex v. Secretary of State for Home Affairs. Ex parte Greene.
Court of Appeal (1941)
Scott, Mackinnon and Goddard L.JJ.
APPEAL from an order of a Divisional Court refusing an application for a writ of habeas corpus.
On May 22, 1940, Sir John Anderson, then Home Secretary, made the following order for the detention of the appellant: "Whereas I have reasonable cause to believe Ben. Greene, of The Hall Cottage, Berkhamsted, to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him, Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following order: I direct that the above-mentioned Ben. Greene be detained." On May 24 the appellant was detained in Brixton prison under the order of May 22 and he continued to be detained under that order, and afterwards by the order and direction of Mr. Herbert Morrison, the succeeding Home Secretary. A copy of Sir John Anderson's order was stated to have been given to the appellant, but he was incorrectly informed by the advisory committee, to whom he made objections against the order under para. (3.) of reg. 18B, that the ground on which he had been detained was that he had been "recently concerned in acts prejudicial to the public safety and the defence of the realm, and in the preparation of such acts." On March 26, the appellant applied ex parte to the
Divisional Court for a writ of habeas corpus. In support of his application he swore an affidavit in which he denied that he was or had been at any time of hostile associations.
On April 22, in reply to the appellant's affidavit, Sir John Anderson swore an affidavit, in which he stated: "(3.) Before I made the said order I received reports and information from persons in responsible positions who are experienced in investigating matters of this kind and whose duty it is to make such investigations and to report the same to me confidentially. I carefully studied the reports and considered the information and I came to the conclusion that there was clear cause to believe, and I did in fact believe, that Benjamin Greene was a person of hostile associations and that by reason thereof it was necessary to exercise control over him. (4.) A copy of the detention order was sent by me to the advisory committee appointed under reg. 18B of the Defence (General) Regulations, 1939, on May 31, 1940. I am unable to say how the error occurred .... in the statement of my reasons for making the order. .... I submit that the error cannot have prejudiced Mr. Greene, as he had a copy of the detention order and .... he took no exception before the advisory committee to the terms of the document. The advisory committee duly reported to me. After again considering all the information about the case, including the committee's report, I was confirmed in my belief that Mr. Greene was a person of hostile associations and that by reason thereof it was necessary to exercise control over him." An affidavit was also sworn by the respondent, Mr. Morrison, in the following terms: "I have read a copy of the affidavit of Sir John Anderson .... and I desire only to add that I have satisfied myself that the said Benjamin Greene was and is a person of hostile associations, and that by reason thereof it is necessary to exercise control over him." On April 24 the appellant swore a further affidavit in answer to those sworn by Sir John Anderson and Mr. Morrison. In it he stated: "I deny that there is a clear cause to believe, or that the said Sir John Anderson does in fact believe that I am a person of such hostile associations that it is necessary to exercise control over me. The said Sir John Anderson gives no information to the court of the names of the 'persons in responsible positions' and I say this is not evidence that this honourable court can accept. I crave that this honourable court will insist on its right to have before it the evidence the said Sir John Anderson purported to act upon. With reference to para. 4 of the said affidavit I deny that the error therein referred to has not prejudiced me..... The procedure before the advisory committee was such that I had no means of giving any explanations of the alleged facts upon which any reasonable grounds of belief could be based. ... At no time was I given information as to which particular activities or associations were relied upon to constitute the said grounds [of detention]. I say, therefore, that even after the hearing before the advisory committee the Secretary of State had not, and could not have had, reasonable grounds to believe anything which warranted my continued detention. I have read what purports to be a copy of the affidavit of Mr. Herbert Morrison. ... It is untrue to say that he has satisfied himself that I am a person of hostile associations. My original detention and its continuance have every appearance of being due to political animosities, and are in the nature of political persecution." The appellant's application was adjourned for notice to be given to the Home Secretary and on May 2, 1941, the Divisional Court refused the application. The appellant appealed.
This is an appeal from a decision of a Divisional Court of the King's Bench Division, consisting of Humphreys, Singleton and Tucker JJ., by which that court refused to order the release of a British subject whom the Home Secretary had purported, on May 24, 1940, to detain under the power conferred on him by reg. 18B of the Defence (General) Regulations, 1939. The application was made to the Divisional Court in accordance with Order LIX. of the Rules of the Supreme Court, which somewhat simplifies the old procedure for obtaining the prerogative writ of habeas corpus ad subjiciendum, but has left the law governing the rights of the subject and the jurisdiction and duties of the High Court unaffected. The question still is, as it always was, whether the subject is lawfully detained. If he is, the writ cannot issue. If he is not, it must issue. The right to release under Order LIX. is governed by the same principle. It is unnecessary in the present appeal to consider that fundamental rule of law. It is well understood and its principles are well summarized and noted in the part of the article on Crown Practice relating to habeas corpus in Halsbury's Laws of England, Hailsham ed., vol. ix.
The main, and I think the real, question in the appeal is whether the appellant was lawfully detained. The case for the appellant was clearly and forcibly argued before us by Mr. Williamson, but the court was unanimous in the opinion that the appeal must be dismissed. To prevent doubts arising in the public mind if we reserved our decision on a matter so generally and urgently important both to the liberty of the subject and to the discretion of the executive in the prosecution of the war, we announced the dismissal of the appeal forthwith, but took time to put our reasons in writing. [His Lordship read the Home Secretary's order and paras. (1.) and (8.) of reg. 18B.] The chief issue in the appeal turns on the question of the jurisdiction of the Home Secretary, and that in the main depends on whether he had "reasonable cause to believe" the appellant "to be of hostile associations," for it is contended that the existence of such reasonable cause is a condition precedent to his jurisdiction, and that the facts constituting the reasonable cause are for the court to find and appraise, and not for the Home Secretary. That contention must depend primarily on the proper interpretation of para. (1.) and is a question of law. For reasons which I will state later there can seldom be any extensive controversy of fact on it, and in the present case I do not think there is room for any.
The appellant has in his affidavit himself exhibited the order and admitted that he was detained under it. If the Home Secretary had jurisdiction to make the order, the appellant was lawfully detained, and under the old procedure the return of that order to the writ would have been at least prima facie justification for the arrest. Under Order LIX. the same result must follow. The arguments on behalf of the appellant were (1.) that para. (1.), on its true construction, makes the existence of facts constituting "reasonable cause" a condition precedent to the jurisdiction; (2.) that the Home Secretary had not such reasonable cause; (3.) that the court has a duty to inquire into the facts and satisfy itself on that issue; (4.) that the onus of proof is on the Home Secretary; (5.) that he has not proved his case; (6.) that the provision in para. (8.) that "any person detained in pursuance of this regulation shall be deemed to be in lawful custody" means "in lawful pursuance" and that if it does not mean that it is ultra vires. There were certain other contentions advanced, but it is convenient to postpone them till after consideration of the main question.
The only point of difficulty - and it is a real difficulty - is to decide to what extent the regulation leaves the ground for the Home Secretary's decision to his discretion. In construing the regulation I think it important to keep certain matters in mind. In the first place, Parliament by the Emergency Powers (Defence) Act, 1939 (2 & 3 Geo. 6, c. 62), has delegated an extraordinarily wide degree of legislative power to His Majesty in Council. By s. 1, sub-s. 1: "Subject to the provisions of this section, His Majesty may by Order in Council make such regulations (in this Act referred to as ' Defence Regulations') as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community." By sub-s. 3: "Defence Regulations may provide for empowering such authorities, persons or classes of persons as may be specified in the regulations to make orders, rules and bye-laws for any of the purposes for which such regulations are authorized by this Act to be made, and may contain such incidental and supplementary provisions as appear to His Majesty in Council to be necessary or expedient for the purposes of the regulations. " Sub-s. 4 provides that a Defence Regulation shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. ..."
The King in Council is, under our constitution, an executive rather than a legislative authority, for it is in practice the Cabinet itself, represented by certain members in attendance on the King, and it is to that authority, representing the executive government, that Parliament did, for the duration of the emergency, entrust an almost plenary discretion. When that authority in turn delegated to a particular member of itself, namely, a Secretary of State, power to make orders within the scope of the regulation, for example, for the various war purposes specified in reg. 18B, I should presume, in the absence of clear words to the contrary, a similar intention to trust to his discretion.
The history of the legislation is of help. In the last war reg. 14B was the precursor of the present reg. 18B. It was made under the Defence of the Realm (Consolidation) Act, 1914 , s. 1, sub-s. 1. By that regulation the Home Secretary was only to act on the recommendation of a competent naval or military authority or of one of the advisory committees thereafter mentioned, but on receipt of such a recommendation, if it appeared to him that "for securing the public safety or the defence of the realm it was expedient in view of the hostile origin or associations of any person" to detain that person, he was given complete discretionary power by order to do so. One such order for detention was considered by the House of Lords in Rex v. Halliday [FN11], and the general principles there enunciated appear to me equally applicable in considering the interpretation of the present reg. 18B, subject always to due weight being given to the words of its opening protasis, "If the Secretary of State has reasonable cause to believe." I recognize that those opening words do grammatically constitute a condition of some kind to be fulfilled before the Secretary of State can exercise his powers, but everything depends on its true meaning in its context, and that problem of construction cannot be solved without due regard to the general purport of the regulation as a whole. To that aspect what was said in Rex v. Halliday [FN12]has great materiality. It had been argued there that reg. 14B on its natural interpretation interfered with the liberty of the subject in so unconstitutional a manner as to make it necessary to put a limiting construction on its language. The House by a majority of four to one (Lord Shaw dissenting) held to the contrary. Lord Finlay L.C. said [FN13]: "It appears to me to be a sufficient answer to this argument that it may be necessary in a time of great public danger to entrust great powers to His Majesty in Council, and that Parliament may do so feeling certain that such powers will be reasonably exercised." Lord Dunedin said [FN14]: "That preventive measures in the shape of internment of persons likely to assist the enemy may be necessary under the circumstances of a war like the present is really an obvious consideration. Parliament has in my judgment, in order to secure this and kindred objects, risked the chance of abuse which will always be theoretically present when absolute powers in general terms are delegated to an executive body; and has thought the restriction of the powers to the period of the duration of the war to be a sufficient safeguard." Lord Atkinson dealt with the necessity of "preventive justice" in times of emergency, and called attention to the precautions contained in the regulation to prevent error or abuse [FN15]. One was the system of strong advisory committees (which is again provided for in the present regulation by paras. (4.) and (5.)). Lord Wrenbury pointed out that the powers conferred upon His Majesty in Council were to pass not by-laws, but important legislation, and that the regulations took effect as if they were contained in the statute [FN16]. He dealt with the express argument that the regulation was ultra vires the statute, an argument which has been half- heartedly advanced in the present case with regard to the first half of para. (8.). Although it is not now pressed strongly on us, so much that has been urged verges on that argument that I think it useful to quote Lord Wrenbury's words: "The application before your Lordships is for a writ of habeas corpus, and the ground advanced is that reg. 14B is ultra vires. If that were established he [the applicant] would be discharged. The Habeas Corpus Act is in full force; but this statute and the regulations made under it have provided machinery for achieving in a way other than that of suspending the Habeas Corpus Actthe preventive detention of persons who are not alleged to have committed any offence, but whom it is desired to prevent from committing one. The regulation is, in my judgment, one within the authority given by the Act."
With that preface to clear the air round the problem of interpretation, I come to the crucial point. What is the meaning fairly attributable to the opening language of para. (1.)? Who is to decide the issue of reasonable cause, the Secretary of State, or a court? If a court, how could the question itself be brought before the court? By certiorari to quash the order of the Secretary of State, or mandamus to hear and determine according to law? Obviously, neither. It cannot be by habeas corpus, because the High Court does not sit as a court of appeal in such proceedings. If it be said that these are technical reasons I reply that the answer is equally plain on the broad grounds of national interest stated in Rex v. Halliday, which we ought to presume guided the present delegated legislation of His Majesty in Council. The whole regulation deals with a topic which is necessarily of a highly confidential character. It invites a decision, at least as a preliminary to action, by an executive minister of the Crown who occupies a position of utmost confidence, who has at his disposal much secret information which ought not to be made public - above all, during a war - who is under a duty to keep that information and its sources secret, and, finally, who cannot be compelled in any court to divulge what he considers ought not in the national interest to be divulged. All the King's courts recognize that inhibition and enforce it. The arguments which have been advanced in some of the cases rest expressly or impliedly on a contention that the Home Secretary in making an order is exercising a quasi-judicial function, as if he had to hear both sides before coming to a decision on the preliminary issue. That contention is in my view wrong. His capacity is purely executive, as it is when deciding whether or not to deport an alien, as was pointed out by Lord Reading C.J. in Rex v. Inspector of Leman Street Police Station. Ex parte Venicoff, and I adopt his words: "The Home Secretary is not a judicial officer for this purpose, but an executive officer bound to act for the public good, and it is left to his judgment whether upon the facts before him it is desirable that he should make a deportation order. The responsibility is his."
Even if the issue could properly be brought before a court it would be futile to ask the court to decide it unless the material evidence could also be brought before it, and of that the impossibility seems to me self-evident. For these reasons I do not think that the crucial words "reasonable cause" can properly be construed as imposing an objective condition precedent of fact, on which a person detained would be entitled in any legal proceedings to challenge the grounds for the Secretary of State's honest belief, either by requiring disclosure of the confidential information which he had received in the course of his official duty, or by tendering evidence that there was in fact no reasonable cause. If the Secretary of State's information is confidential, its confidential character, in my opinion, necessitates logically the conclusion that the regulation makes him the final judge of the reasonableness of the cause on which he takes action - in short, that the condition is subjective, not objective.
I agree that this meaning would have been made more obvious if the words "in his opinion" had preceded the words "reasonable cause," but that difference of language is not, in my opinion, sufficient to refute the conclusion I have expressed. In addition there are certain further reasons which support that conclusion. (1.) The comparison with 14B of the 1914 regulations is the first. The draughtsman of the present regulation obviously had the earlier one in mind. It may well be that the omission of the old requirement of a recommendation by a competent naval or military authority or an advisory committee influenced the legislative decision to provide some other assurance to the public in its place. If so, the words "reasonable cause" may very properly have been chosen in the sure belief (as Lord Finlay said in Rex v. Halliday) that the Secretary of State would only exercise his powers after satisfying himself that he has such reasonable cause. (2.) Reg. 18B preserves all the protective system of advisory committees, but improves it materially as a protection for the detained person: paras. (3.) and (5.). (3.) Para. (6.) places on the Secretary of State a significant new duty, namely, both to make a general report every month to Parliament and also to state "the number of cases, if any, in which he has declined to follow the advice of an advisory committee." (4.) Para. (4.) grants to every detained person an express new right, for which he is to be given "the earliest practicable opportunity," to make a direct appeal to the Secretary of State. If His Majesty in Council intended to confer a plenary discretion on the Secretary of State, could he have manifested that intention more clearly? It is essential to the interpretation of para. (1.) to keep in mind its setting in the regulation as a whole, and, if it is so construed, the four considerations I have mentioned suffice in my mind to clear up any ambiguity left by its opening words and to establish the construction I put on the paragraph. There is another possible interpretation of para. (1.), which is slightly different, but leads to the same conclusion. I assume for this interpretation that in one sense the objective existence of a "reasonable cause" is intended by the regulation to be a condition precedent to the jurisdiction of the Secretary of State. Even so, when he receives confidential information of a kind which compels his mind to the belief in question, that information must, in my opinion, necessarily constitute for him reasonable cause, and that must mean that the decision is left to him. If so, the condition is then ipso facto satisfied, provided always that he forms an honest judgment. On the affidavits of the two Home Secretaries in the present case it is beyond dispute that each in his own mind did so arrive at an honest belief. It follows that the condition was fulfilled and the detention was truly in lawful pursuance of the regulation, and it is unnecessary to consider whether para. (8.) gives artificial legality to a detention that was not regular.
Mr. Williamson, before us, relied on the passage in the judgment of the court (consisting of Humphreys, Oliver and Croom-Johnson JJ.) delivered by Humphreys J., which appears in the report of Rex v. Secretary of State for Home Affairs. Ex parte Lees [FN20]: "The next and only other point taken was that the order is invalid because the Home Secretary never had any reasonable cause to believe that the applicant was a person to whom the regulation applied. Now the court entertains no doubt that upon an application for a writ of habeas corpus the court has power to inquire into the validity of the order of detention, and for that purpose to ascertain whether the Home Secretary had reasonable cause for the belief expressed in the order." With the first half of the last sentence I entirely agree, but unless the subsequent approval of the whole judgment by the Court of Appeal compels us to treat it as binding authority I feel difficulty in accepting the second part in all its generality, because it may be read as inviting inquiry by the court into the evidence of reasonable cause. I cannot think that the Divisional Court intended such a pronouncement, for they accepted the qualification submitted by the Solicitor- General that no court can "have before it all the material upon which the belief of the Home Secretary was based." The Solicitor-General, no doubt, had in mind the duty of a Minister of the Crown, under our English constitution, to keep to himself all confidential information. On it he cannot be cross- examined, and no court will ever think of asking him to divulge it. There is a further point about Ex parte Lees [FN21]. When the Court of Appeal heard that appeal the applicant had already been released, and the court only heard the appeal to deal with the question of costs. If the court intended to say anything different to what I have now said (which I hardly think) I confess to some little doubt as to the binding authority of a judicial pronouncement by the Court of Appeal of its reasons for dismissing an appeal by a prisoner in habeas corpus proceedings, when at the time of the judgment the prisoner has already been set free. At any rate, I feel sufficient doubt as to the intended scope of the passage to which I have referred, as not to feel precluded by it from the free expression of my own view.
It was also contended for the appellant before us that what I am saying is contrary to what was said by Lord Atkin in delivering the advice of the Privy Council in Eshugbayi Eleko v. Government of Nigeria (Officer Administering), in approval of what Low J. had said in Rex v. Governor of Brixton Prison. Ex parte Sarno. "The question whether the applicant was an alien or not did not arise. He admittedly was; but their Lordships agree with the opinion of Low J. that, had the matter been in dispute, the court would have had to decide it." I cannot see that there was any issue before the Privy Council in that case which makes that passage, or the decision itself, relevant to the interpretation of reg. 18B, so as to affect the jurisdiction of the Secretary of State under it. In the Nigerian case [FN24] the relevant ordinance conferred on the governor jurisdiction to deport if, and only if, certain antecedent propositions were established or admitted as extrinsicfacts: (1.) the person to be deported must have been a native chief; (2.) he must have been deposed; and even then he could not be deported unless (3.) there was a native custom requiring him to leave the area where he had been chief. It was held that the ordinance in question made each fact a condition precedent to any exercise by the governor of the power to deport and that each condition had to be established either by admission or proof before a court. On none of the three was the governor given by the ordinance any power of discretionary decision, nor did any question of confidential information arise. The decision of the Privy Council that each condition created a justiciable issue, to be solved before the governor's jurisdiction could arise, therefore, does not touch the present case. Nor does the view expressed by Low J. in the Brixton Prison case, for the power to deport an alien necessarily involves a condition precedent to its exercise that the person should in fact be an alien, and the issue "alien or not alien" cannot be within the jurisdiction of the Home Secretary to decide unless the statute has by clear words conferred it on him, which the Aliens Acts do not. In my respectful opinion, the Privy Council were not intending to say anything that bears on the questions we have to decide.
We were supplied by the parties with transcripts of judgments in certain recent cases. I will refer to them shortly, taking them in their order of date. The first, a habeas corpus case, Rex v. Secretary of State for Home Affairs. Ex parte Budd [FN26], was a decision of a Divisional Court consisting of Humphreys, Singleton and Tucker JJ. In that case the order was made under para. (1A) of reg. 18B, on the ground of membership of an organization within the mischief aimed at by that paragraph. It purported to deal with a large number of persons, and was kept in the Home Office, three short documents being drawn up for service on the prisoner, and otherwise. These documents ought to have been exact copies of at least that part of the omnibus order which concerned Budd. In truth, they were not copies at all, and purported to record an essentially different order by the Home Secretary, namely, under para. (1.), on the ground of hostile associations, and not on the ground of membership of such an organization as is dealt with by para. (1A). The court released the applicant, chiefly, I think, on the ground of that difference, holding, in effect, that it was an essential requirement of the regulation that the prisoner should be informed truly of the ground of the order made by the Home Secretary. It is not necessary for the present appeal to consider the other reasons discussed in that case; but it must not be assumed that I agree with all that was said.
The next case was Liversidge v. Anderson and Morrison, which was an action by a detained person for a declaration against Sir John Anderson, who as Home Secretary had ordered his detention, and Mr. Morrison, who as the next Home Secretary did not release him. The defence relied on the order of detention. The plaintiff applied for particulars "of paragraph 3 of the defence (a) of the grounds upon which the first defendant had reason to believe the plaintiff to be a person of hostile associations, and (b) of the grounds on which the said defendant had reasonable cause to believe that by reason of such associations it was necessary to exercise control over the plaintiff." The master, and Tucker J. both refused them. So also did the Court of Appeal, consisting of MacKinnon, Luxmoore and du Parcq L.JJ. They held that the plaintiff was not entitled to such particulars unless the onus of proof was on the defendants, and they were clear that it was not. That decision is indirectly helpful in the present case, because if it had been held that the onus of proof had rested on the Home Secretary to establish the grounds of his belief in the plaintiff's hostile associations or in the necessity of exercising control over him, it would have been opposed to the views I have expressed in this judgment.
Next was Stuart v. Anderson and Morrison, which was an action for false imprisonment tried before Tucker J. without a jury. The plaintiff put forward two contentions, but I need only refer to the second, namely, that the order of detention was bad because the Home Secretary had no reasonable cause for his belief. A regular order of detention was produced, which it was admitted by the plaintiff was signed by the Home Secretary, although the copy served on him had been signed by the Permanent Secretary of the Home Office. The Attorney-General elected not to put the Home Secretary in the box, in the learned judge's opinion rightly, and I agree with him. Tucker J. held that the production of an order of detention, regular on its face, shifts the onus on to the plaintiff (assuming that it ever rested on the defendant, which is not my view) and he made some forcible observations: "I do not desire to say anything more about the facts of the case, and I should have desired not to mention them at all, because I think that it is very undesirable in cases of this kind, where the court can of necessity know only part of the facts, that it should go into the merits at all. I would not have done so had it not been necessary to deal with the submissions of counsel for the plaintiff. One of the difficulties of seeking to invoke the jurisdiction of this court in these cases is that, of necessity, the court knows only a fraction of the case. This arises from the attitude taken up by the Home Secretary in these cases, which the Court of Appeal has held is the proper attitude - namely, his refusal to put before the court the material upon which he came to his conclusion in the matters." He gave judgment for the defendants, and I find myself in agreement with the above passage, and, indeed, with most of what he said, in a careful, though extempore, judgment.
The last case cited to us was the second Budd case. Budd had been released from detention and had been rearrested. He again took habeas corpus proceedings, but the Divisional Court, consisting of Viscount Caldecote C.J. and Macnaghten and Stable JJ., the last named dissenting, refused to release him. As that case may come before us on appeal I think it better not to discuss it, beyond saying that the Lord Chief Justice relied on a passage from the judgment of MacKinnon L.J. in the Lees case, and that I disagree with the conclusion of Stable J.
An entirely separate point, and one of public importance, was made on the appellant's behalf, both before us and below, in connection with an appeal by him to the advisory committee pursuant to para. (3.) of the regulation. Para. (5.) puts on the chairman of the committee "a duty to inform the objector of the grounds on which the order had been made against him and to furnish him with such particulars as are, in the opinion of the chairman, sufficient to enable him to present his case." Unfortunately, the notice from the chairman, handed to the appellant to inform him of the grounds on which the order had been made against him, omitted the belief of the appellant's "hostile associations" on which the order had in fact been founded, and substituted as grounds for the order, a belief of the Secretary of State that the appellant had been "recently concerned in acts prejudicial to the public safety or the defence of the realm, and in the preparation and instigation of such acts. " These statements follow the language of the latter part of para. (1.), but the first paragraph of the "particulars" given under para. (5.) related solely to the ground for detention covered by para. (1A), namely, membership of an organization under foreign influence or controlled by persons having associations or sympathies with enemy governments. It was the case that paras. (3.), (4.) and (5.) properly come under the general heading of "hostile associations," but the omission of any reference to hostile associations from the general statement at the head of the notice, coupled with the misrepresentation contained in para. (1.) of the particulars, was at least likely to confuse the appellant and handicap him in his appeal. It was contended that this discrepancy between the notice from the chairman of the advisory committee and the order in fact made by the Home Secretary made the detention illegal ab initio, or, alternatively, from the date of the notice. I do not think it can have either effect. The appellant appeared before the committee, and it is not suggested that he there complained of the discrepancy. He possessed document "B.G.1," originally served on him, and knew that "hostile associations" was the grounds on which it was made, as was found as a fact by the Divisional Court. He also saw that most of the particulars, if not all, fell within that general allegation. As found below, he received the notice five days before he appeared before the committee, and Humphreys J. held on the affidavit evidence, and after hearing the appellant in person, that he was not in fact prejudiced by the mistake. As a matter of law I cannot see anything in the regulation which would justify the conclusion that such a mistake by the advisory committee either invalidates an originally good order or confers a right to release.
A much worse mistake was alleged by the appellant, namely, that he had not been informed of his right to make representations direct to the Secretary of State under the regulation. The evidence was dealt with in the judgment below in detail, and the court held that the allegation was unfounded. It is, therefore, unnecessary to consider what the effect would be of such a default if proved. None the less I attach great importance, and I am sure the Home Secretary does also, to the most careful observance of every precaution provided by the regulation for the protection of any person detained under reg. 18B. The liberty of the subject is only one degree less important than the safety of the Nation. Unfortunately, there have now been several preventive detention cases before the courts in which errors of procedure have been committed, and in one case, certainly, the first Budd case, a discrepancy occurred between the supposed "copy" of the Home Secretary's order served on the person detained and the original order which amounted to more than an error of procedure and led the Divisional Court to release the applicant. The subject's right of habeas corpus, as it is called, has not, as some still wrongly suppose, been abolished. It remains untouched in this war. It remained untouched in the last war, as the House of Lords pointed out in Rex v. Halliday, but the safety of the State in war calls for stringent preventive steps to avoid grave risks. Regulation 18Bis essentially such a provision and it ought to be generally understood that it is not punitive but purely preventive in its object. If a person is unlawfully detained he is still entitled to his release by the King's Bench, but, conversely, it is essential that the executive should have wide discretionary powers to forestall dangers, and in no one of the cases which have come before the courts, so far as I can see, has there been the faintest ground for imagining that the public cannot implicitly trust the King's Minister holding the office of Secretary of State for Home Affairs to do his very best honestly to carry out the onerous duties imposed on him by reg. 18B.
There is one general conclusion to which consideration of the present case had led me. I can see no legal need for the Home Secretary making any affidavit. The onus of proof is not on him. In addition, there is a definite reason why unnecessary affidavits should not be made by him in habeas corpus proceedings under Order LIX. of the Rules of the Supreme Court. The ordinary procedural rules about hearsay statements and the right of the other side to cross-examine are applicable, and both rules make affidavits by him almost futile. If his bona fides were attacked, a different position might arise, but in the ordinary case a letter from the Home Office addressed to the court and identifying the order made should be a sufficient substitute for the gaoler's return to the writ under the old practice. I express no opinion on the question whether it would be more convenient for the gaoler to make an affidavit exhibiting the original order.
In spite of Mr. Williamson's admirable argument, the appeal must be dismissed with costs.