40 • The invisible palace —part 2 the constitution

on the powers of the executive. Only the courts have the authority to stop any individual or body of persons from exceeding their powers, or making improper use of their powers. This is known as preventing an abuse of power.

There is no doubt that the Prime Minister and his Ministers, who are part of the executive, do have enormous power, and that power is all the greater when the Government has a large majority in the House of Commons. What happens, then, if it is believed that any member of the executive is about to abuse his powers and act unlawfully, or that he has already done so? Here again is a simple example:

• The Home Secretary has executive powers, exercised by his civil servants, to detain any person who enters the country as an illegal immigrant, and deport him back to his own country. What if an immigrant has been detained and is about to be deported, but he claims to be lawfully entitled to remain in the UK? How can he ensure that the Home Office deals with his case properly?

The answer is that the Home Secretary is responsible for the actions of all the civil servants employed by the Home Office; and however powerful he may be, if it is thought that he or anyone in his department has acted unlawfully—in excess (abuse) of his power or without reason—the Home Secretary himself may be taken to court.

The court will then have to decide if he has acted lawfully or not. If the court decides against the Home Secretary, it will make a court order—an instruction to him not to do anything unlawful, or to put right any unlaw­ful thing that he has done. In this case, if the court decides in favour of the Home Office, the immigrant will be deported. If it decides in favour of the immigrant, he will be released from detention, and allowed to remain in the UK.

Few people are aware of this aspect of the courts' work. It may not be well known; but it is of great importance. It concerns deciding disputes between citizens and the State, and these cases are heard in London in a special part of the Queen's Bench Division of the High Court, called the Administrative Court.

It is not unusual for Ministers to be taken to court; neither is it unheard of for Ministers to lose. For instance, from time to time the courts do indeed decide that the Home Secretary has exceeded his powers; and so even the Minister in charge of 'Law and order' is not above the law.

Judges have not always acted boldly to control the executive, but in a famous judgment in 1942, Lord Atkin expressed the need to do so:

THE INVISIBLE PALACE —PART 2 THE CONSTITUTION • 41

Liversidge v Anderson

In that year a case came before the House of Lords. During both world wars the Home Secretary (as part of the Executive) took power under laws called Defence Regulations to detain without trial any 'person of hostile origin or associations', or anyone whose conduct was 'prejudicial to the safety of the country'.

John Perizweig, also known as Robert Liversidge, was arrested and imprisoned on the orders of the Home Secretary (Sir John Anderson). Anderson had him detained under the Defence Regulations, but gave no reasons for this. Liversidge brought an action in the courts claiming that he had been falsely imprisoned and requesting his immediate release.

The House of Lords ruled by a majority of 4-1 that his detention was lawful. Lord Atkin strongly disagreed with his fellow judges. Although this was at the height of the war and a time of great national peril, he was convinced that the detention of Liversidge without any reason being given was unlawful, and condemned it as an abuse of executive power. He also made this blistering attack on his fellow judges, which at the time caused great offence:

I view with apprehension the attitude of judges who... when faced with claims involving the liberty of the subject show themselves more executive minded than the executive... In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment of his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I.

These words have rung down the years as a call to all judges to protect the rights of the individual against any abuse of power by the State. In more recent years the courts have developed a special procedure to enable individuals to challenge decisions by the executive. They can ask the courts to 'review' these decisions, and this procedure of judicial review is the special responsibility of the Administrative Court. More and more of these cases are being heard. They are not merely of interest and importance to the individuals concerned in them, but amount to a check on the power of the Executive, which should also be seen as a vital expression of our constitution in action.

1. THE SOVEREIGN/MONARCH/CROWN

We may think of the Queen as being very important but we do not think of her as being very powerful. We tend to see her as the figurehead of power, and a natural focus of loyalty. To an extent that is true, but the position of the monarch or Crown in our constitution is extremely important. Halsbury describes it as follows: