mcgillianaire | What is involved is the liberty of the subject ... (Reply)

"Your Lordships have had your attention called to the evils of the exercise of arbitrary powers of arrest by the executive, and the necessity of subjecting all such powers to judicial control. Your Lordships have been reminded of the great constitutional conflicts in the seventeenth century, which culminated in the famous constitutional charters, the Petition of Right, the Bill of Rights, and the Act of Settlement. These struggles did indeed involve the liberty of the subject and its vindication against arbitrary and unlawful power. They sprang from the Stuart theory that the King was King by Divine Right and that his powers were above the law. Thus a warrant of arrest per speciale mandatum Domini Regis was claimed to be a sufficient justification for detention without trial. By the end of the 17th century, however, the old common law rule of the supremacy of law was restored and substituted for any theory of royal supremacy. All the courts today, and not least this House, are as jealous as they have ever been in upholding the liberty of the subject. That liberty, however, is a liberty confined and controlled by law, whether common law or statute. It is, in Burke's words, a regulated freedom. It is not an abstract or absolute freedom. Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament or a statutory regulation, like reg 18B, which has admittedly the force of a statute, because there is no suggestion that it is outside the Emergency Powers (Defence) Act 1939 under which it was made, is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is as to the precise extent of the powers given. The answer to that question is only to be found by scrutinising the language of the enactment in the light of the surrounding circumstances and the general policy and object of the measure. I have ventured on these elementary and obvious observations because it seems to have been suggested on behalf of the appellant that this House was being asked to countenance arbitrary, despotic or tyrannous conduct. In the constitution of England, however, there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary, and they are limited to the period of the emergency."
~ Lord Wright in Liversidge v Anderson (1941) ~