Secretary of State for Home Affairs v O'Brien

The facts in this case need no elaborate examination, inasmuch as the only question to be decided by the House is whether or not in the circumstances of the case an appeal is competent at all.

I have no doubt that in a matter like the present your Lordships have no jurisdiction to hear such an appeal. I confine myself, therefore, to such a brief statement of the facts as is necessary to illustrate and render intelligible the motion which I shall hereafter propose.

On the 11th March 1923, the Respondent O'Brien was arrested at the instance of the Home Secretary; was conveyed to Liverpool and thence to Dublin, where he was handed over to the authorities of the Irish Free State, who immediately confined him in Mountjoy Prison.

Your Lordships are not, in the view which I have formed, authorised to examine the arguments in law by which, in the Courts below, the Attorney-General attempted to justify these proceedings. I do not, therefore, even attempt an examination of the true consideration of Section I of the Restoration of Order Act, 1920; indeed, having regard to the view which I understand the majority of your Lordships have formed, the last authoritative word upon that Section has been uttered by the Court of Appeal. This consideration, of course, makes it equally unnecessary to examine the ambit or authority of Regulation 14b. It is merely necessary to take notice of the fact that it was in reliance upon this Regulation that the Home Secretary directed the apprehension and deportation of the Respondent.

Nor are we concerned, if the view which I have formed is well founded, with the various constitutional provisions which brought into being the Irish Free State. These instruments, whether conventional or statutory, are only material in relation to the merits of the controversy; and with those merits I have already made it plain that we have nothing to do. Your Lordships are, however, most deeply concerned with the question whether or not this House has jurisdiction to re-examine, and if necessary to set aside upon the merits of the question, the decision which the Court of Appeal reached and announced on the 9th May 1923. In this connection the following points of time must be distinguished.

On the 10th April 1923 a Divisional Court, consisting of Lord Hewart, L.C.J., Avory J., and Roche J., refused the Respondent's ex parte application for a rule nisi for a Writ of Habeas Corpus to be directed to the Home Secretary.

The Court of Appeal, differing from the Divisional Court, ordered a rule nisi to issue on the 13th April 1923 and on the 9th May made the rule absolute. It could not, however, direct positively the discharge of the Respondent because the Home Secretary declared on affidavit that he had parted with control over his body. It is attempted in the present Appeal to test and to challenge the propriety of the Order made by the Court of Appeal.

When the hearing of the case before your Lordships commenced I thought it proper to suggest that the question of jurisdiction should first be decided. The debate which followed was thereupon limited to this topic. It soon appeared that in the opinion of the House no jurisdiction existed to hear the Appeal. In these circumstances nothing was to be gained by an academic discussion upon the merits of the matter. For, having regard to the view which a majority of your Lordships had formed upon the preliminary question, we should evidently have been debarred from even expressing an opinion upon the merits, however protracted and conscientious our application to so interesting a topic might have been. Your Lordships therefore thought it proper to announce forthwith the conclusion that an appeal was not competent, while postponing a full exposition of the reasons which rendered this conclusion necessary.

I propose shortly to state the grounds which convinced me of the soundness of your Lordships' decision. And I am bold enough to say plainly that had it not been for the view taken by one of your Lordships, I should have thought the matter too plain for argument.

The determining considerations are partly general and partly particular. The first class is deeply involved in the history of the matter. We are dealing with a writ antecedent to statute, and throwing its roots deep into the genius of our Common Law. The Writ with which we are concerned to-day was more fully known as Habeas Corpus ad Subjiciendum. This Writ, however, was one of many. Thus there was a Writ ad Respondendum, ad Satisfaciendum, ad Prosequandum, ad Testificandum, and ad Deliberandum. All these Writs exhibited many features in common: but the most characteristic element of all was their peremptoriness. To-day the substitution of more modern remedies has left the Writ ad Subjiciendum, more shortly known as the Writ of Habeas Corpus, in almost exclusive possession of the field. It is perhaps the most important Writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by Courts of Law as a check upon the illegal usurpation of power by the Executive at the cost of the liege.

In the course of time certain rules and principles have been evolved; and many of these have been declared so frequently and by such high authority as to become elementary. Perhaps the most important for our present purpose is that which lays it down that if the Writ is once directed to issue and discharge is ordered by a competent Court, no appeal lies to any Superior Court.

Correlative with this rule, and markedly indicative in itself of the spirit of our Law, is that other which establishes that he who applies unsuccessfully for the issue of the Writ may appeal from Court to Court until he reaches the highest tribunal in the land.

If I am right in treating these rules as familiar and well settled, some curiosity may be felt as to the grounds which led the present Appellant, advised as he has been by the Law Officers of the Crown, to assume that an appeal lay to this House in the circumstances of the present case. The argument is, of course, founded upon the very wide language of section III. of the Appellate Jurisdiction Act, 1876, which is undoubtedly general enough to cover this or almost any other case. It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approached the matter without the assistance of any authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right. But happily we are in a position to approach the matter with even greater confidence, for in Cox v. Hake, 15 A.C., 506, a very similar matter was debated and decided by this House. The argument in that case depended upon the language of Section XIX. of the Judicature Act, 1873, but this Section was in its statement of competent appeals as sweeping as Section III., of the Appellate Jurisdiction Act, 1876. The guidance and the authority of the decision upon the earlier Act are therefore fully available for our purposes in the present Appeal. It was established and indeed very often repeated in the learned judgments which were delivered in Cox, that if upon the return to the Writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody, and if discharge followed, the legality of such discharge could never again be brought in question. Lord Chancellor Halsbury summarized the matter in the following sentence:—

"It is the right of personal freedom in this country which is in debate, and I, for one, should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed, and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination of that question may only be arrived at by the last Court of Appeal."

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