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Liversidge V Anderson: Lord Maugham's Letter

Volume 121: debated on Wednesday 19 November 1941

The text on this page has been created from Hansard archive content, it may contain typographical errors.

[The question was as follows:

To ask His Majesty's Government whether their attention has been directed to a recent letter appearing in the public Press from a learned Law Lord animadverting upon the observations of one of his colleagues in the case of Liversidge versus Anderson; whether there is any precedent for this undignified procedure; and whether they consider it to be in accordance with the high traditions of the Judiciary and in the public interest that Law Lords should criticize each other through the medium of a newspaper.]

My Lords, the noble Lord's question does not raise any matter for which His Majesty's Government have constitutional responsibility, or deal with anything arising out of the executive functions of government. The Judiciary, whether members of this House or of the Court of Appeal or of the High Court, are of course wholly distinct and separate from the Executive, and in all matters connected with their judicial activities are not subject to the control of the Government in any way. In these circumstances I must reply, with much respect to the noble Lord, that the question he raises is not one to which the Government should give a reply.

My Lords, arising out of that question, perhaps your Lordships will kindly allow me to explain my position in the matter. In the first place, I should like to point out that I am no longer a Lord of Appeal in Ordinary; I resigned that position last July on grounds of health, and I no longer have the honour to serve His Majesty in any capacity. I sit only, as I did on the Liversidge and the Greene Appeals, when requested to do so by the Lord Chancellor, as a Peer who has held high judicial office. Accordingly, in my view, the Lord Chancellor, apart from the constitutional matter which he has so plainly pointed out, has no more right to reprove me in respect of what I did than he would have to reprove the noble Lord who put down this question if the Lord Chancellor came to the conclusion that it was tendentious and unfair. The only way that I can see that the Lord Chancellor could in any way indicate disapproval of my conduct in the matter would be by declining in the future to ask me to sit on any Appeal here or in the Privy Council, and I will only say that if he thinks fit to take that course I can assure him that I shall in no way complain.

My feeling about the matter is this. I shall no: easily forget the kindness that was shown to me by many members of this House when I first appeared here, nor the most generous phrases of congratulation which were addressed to me as to what was described as my patience and courtesy in connection with the Coal Bill, a Bill which was most obnoxious to many of your Lordships in this House. The result is that I do not want, if I may so express it, to spoil my copybook here and I ask your Lordships to listen to me for a few minutes while I explain the circumstances in which my letter was written. In the Liversidge and Greene cases we reserved our judgments. As your Lordships know, in such cases each Lord's speech is printed and circulated, and I was not sitting after the arguments in those Appeals were disposed of and was therefore not coming here day after day. The printed judgments, all of which were written with much care, came in slowly and Lord Atkin's judgment, as it happened, was the last to reach me and it did reach me just at the moment when I was going into the country for a weekend. There were some passages in Lord Atkin's judgment which I wished to discuss with my colleagues, Lord Wright, Lord Macmillan and Lord Romer.

By some mischance the written notice that the judgments would be delivered on Monday, November 3, did not reach me at all. I heard of the fact in the country on the Sunday afternoon by telephone and too late for me to reach here on the Monday, where my judgment could be and was, in fact, read by Lord Macmillan. And it was thus too late to make any protest about what I took to be an offensive remark in reference to the Attorney-General and his eminent junior, Mr. Valentine Holmes, a remark which, as it seemed to me, might cause them pain and perhaps professional injury. It was not likely that the Court—the Court in the House of Lords—would ever be constituted again with Lord Atkin and myself and my other three colleagues, and my instinct was to prevent what I conceived to be an injustice. If one of five Lords sitting here attacks the conduct of Counsel it usually falls to the presiding Peer to protect them. I did not by my letter attempt to criticize my colleague, Lord Atkin, or his statements in other respects, though I confess to my doubts as to the justice of some of his observations. Nor, indeed, did I seek to do anything at all beyond saying that I had heard nothing at the hearing which in my view justified the suggestion that the arguments of Counsel, or some of those arguments, resembled those which State hirelings used to address to removable Judges in the reign of Charles 1.

The noble Lord, Lord Davies, thinks that I have lost dignity. I was not thinking about dignity; for I think that when it is one's duty to protect people who are absent or Counsel who cannot protect themselves, a man should do what he thinks is right, whether persons are likely to attack him for so doing, or his method of doing it, or not. Apart from the single question of fact, I was not criticizing my colleague, Lord Atkin, at all. He was entitled to his legal views as my other colleagues and I are entitled to ours. Lord Atkin and I have sometimes differed before in judgments, but I should like to say that, speaking for myself, I have never differed from him without much hesitation. All I want to explain to your Lordships is that it seemed to me that the unusual course of writing my letter to The Times was the only course open to me after the judgments had been delivered if I wanted to defend Counsel. I have never been one of those lawyers who think they are always right. I may have misunderstood Lord Atkin's meaning. Moreover, "Live and let live is a pretty good maxim, even in times of war.

The sentence is this:
"In this case"—
says Lord Atkin—
" I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles 1."
Of course, it is perfectly clear that no question of the Prerogative of the King or of the power of Parliament or of the Government was in issue on the two Appeals. It was simply a legal question of the true construction of an Order in Council, which could at any time be amended, made under the authority of an Act of Parliament. Lord Atkin's sentence was clearly not written in praise of ounsel, but it may not have been intended to bear the unpleasant signification which I and others thought the words might bear. If Lord Atkin should say or inform me or others that he did not intend to comment adversely on the conduct of Counsel in the matter, I will at once express my regret that I misunderstood him and that I wrote my letter to The Times. I thank your Lordships for your courtesy in listening to that explanation.