One of the most memorable lectures I have ever attended was in the magnificent surrounding of the Chief Justice’s Court in the Bombay High Court just before the COVID 19 took hold. With its Victorian awe-inspiring gothic architecture, the court was filled to the rafters with eager leading and junior advocates and also students aplenty. There was an air of anticipation, I had been told by a friend and colleague not to miss this and that was certainly good advice.

The talk was given by Justice Rohinton Fali Nariman, whom I am proud to count as a good friend and fellow music lover. As is very much his style, the address was delivered entirely without notes for over one hour. The title of his talk was the “The Voice of Dissent in the Court of Last Resort,” which thankfully has now been published by Penguin, and I would say should be made compulsory reading for all law students and practitioners. The theme, expounded with much brilliance and learning, was that many critical developments in law have started life through the voice of a dissenting judgment in the Indian Supreme Court. Not content with simply examining the subject chronologically, Justice Nariman did so thematically as well. Many of the most important constitutional questions facing India and several critical issues of substantive law have developed through dissent.

All of this brings me to my Uncle Oscar, or my great uncle as he was, who as far as I know is one of two members of my family to have spent time detained in a British prison, although neither of them were charged with let alone convicted of any crime.

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Born at the turn of the twentieth century in Lackenbach, a small village about 100km Southeast of Vienna in what was then the Hapsburg Empire, Oscar had to face at first the grinding poverty of rural Austria, particularly in the aftermath of the of the First World War, then as a Jewish man experience the everyday exclusion from majority society and then the full force of the Nazi take-over of Austria in March 1938 with its genocidal intent. Oscar, as was the case of my own mother and grandmother had to flee to avoid certain death. They reached Britian in 1939, although my grandfather, Julya, was not permitted to come to Britian and he fled to British Mandatory Palestine as an illegal migrant on a rusty boat that caught fire in the Mediterranean. On arrival of the shores of Tel Aviv, he was captured by the British and imprisoned, albeit fairly briefly.

Oscar when he arrived in Britain was imprisoned as an enemy alien. First in a prison camp on the south coast and then on the Isle of Man.

He was one of more than twenty thousand Jewish refugees detained and imprisoned by the British during World War Two without trial, supposedly constituting a threat to national security under the dreaded Regulation 18B of the 1939 Defence Regulations. This provided that if the Home Secretary had reasonable cause to believe that a person was of hostile origin or of hostile association or been concerned with acts prejudicial to the national security, he could order that person to be detained indefinitely and that such detention was deemed lawful. This was a major departure from habeas corpus.

On 26 May 1940, Mr Liversidge a person of a somewhat colourful but distinctly minor underworld background was detained by Sir John Anderson, the Home Secretary under this regulation in Brixton Prison. Mr Liversidge sought a declaration from the courts that his detention was unlawful as there were no reasonable grounds to believe he fell within any of the stated categories. Each court up to and including the House of Lords found in favour of Sir John Anderson. The key point of the decision being that once the Home Secretary had declared someone to be a person whose detention was needed in the interest of national security you could not go behind that declaration to challenge its reasonableness, provided that it was made in good faith. There was no power or basis of a court to examine whether or not there was any objective reasonable ground for the belief, it was simply a question of whether or not the Secretary of State had declared such a reasonable belief.[2] The case can be explained as a decision reached in war-time Britian when its very survival was in question.

Nevertheless, there was a dissenting voice, perhaps one of the most famous dissenting judgments ever given, that by Lord Atkin. This lone voice cavilled against the notion that a person’s liberty might be deprived on the say so of a Minister without challenge as to the objective reasonableness of the grounds and that there was no basis to construe the regulation as bearing that subjective meaning. The test was always an objective one said Lord Atkin. Objectively reasonable grounds had to exist or the detention was unlawful.

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This would of course have aided Oscar a great deal. He was a modest grocer and importer of exotic foods such as Brazil nuts. Instead, he was detained without cause and given a near suicide mission as his only means of escape, which extraordinarily enough he willingly took and even more remarkably survived. He was told he would be freed if took a job working in a munitions factory in Coventry which was subjected to regular bombing and was then firebombed by the Luftwaffe. This is of course deeply ironic because if he were actually a threat to national security, then why send him to a sensitive war production factory?

Lord Atkin’s dissent has proved to be the most durable judgment from Liversidge v Anderson in the courts of England and Wales, which is now expressed to be a “difficult decision.” In India and elsewhere in the Commonwealth there is still some residual tension between the objective and subjective views expressed in that somewhat infamous case. Nevertheless, where would we be without Lord Atkin’s famous deployment of Humpty Dumpty, when saying that as far as he knew this was the only authority for the proposition that when a word was used, it bore precisely the meaning that only he meant it to bear. This rhetorical flourish has been reproduced hundreds if not thousands of times since in courts over the world.

Lord Atkin was right, reason to believe should be understood as requiring a Minister as having objective reasons to believe. This is needed to prevent overreach and to protect a person’ s life, liberty, and property from state interference.

This is as relevant today as ever. In a world of widespread sanctions against individuals there is a need for checks and balances. There needs to be an objectively reasonable basis for inclusion in accordance with the legislative framework. The net might be cast wide for good reason of national policy, but there still needs to be a proper means of challenge.

This article has examined dissenting judgments, but the point made here has wider application too. In far too many cases, the constant 24-hour loop of world news, creates a dominant narrative with respect to a particular story or news item and it then becomes hard for any dissenting voice to express another view. This can lead to no platforming, or boycotts which arise as much out of following the fashionable majority view rather than any critical analysis. This should be deprecated.

My final remark is one which applies in the world of international arbitration where for a variety of reasons, often to do with enforcement of the award, arbitrators feel constrained not to dissent but to reach a uniform view.

There is a reason behind this; namely the adoption in England and Wales of s69 of the Arbitration Act which permits (unless the parties otherwise agree to rule out such a process) an appeal on a point of law of general importance or where the arbitrators have made a manifest error of law. This is not the time to debate the value of s69 of the Arbitration Act which I endorse, but simply to point out that this procedure does permit a more rigorous analysis of difficult questions of law and from more than one angle.

Long live dissent.

[1] David Joseph KC is a barrister practising at Essex Court Chambers in London. He also sits as an arbitrator. He is also the author of Burgenland, Village Secrets and the First Tremors of the Holocaust (Amberley 2023). The views expressed are his alone.

[2] Liversidge v Anderson [1942] AC 206.