Introductionni-ghralaigh-b-sept-2018-1

On 13 May 2020, the Supreme Court handed down judgment in the case of R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19. The case, on appeal from the judgment of the Court of Appeal of Northern Ireland [2018] NICA 8, concerned the challenge by Gerry Adams, former leader of Sinn Féin, to his convictions for attempted escape from the Maze Prison (also known as Long Kesh) in Belfast in the early 1970s. The issue in the case was whether the order pursuant to which Mr Adams was interned in the Maze was valid, given that it had been made by the Minister of State for Northern Ireland and had not been considered personally by the Secretary of State for Northern Ireland himself. The Supreme Court held that it was not valid, that Mr Adams had therefore not been detained lawfully, and consequently, that he had been wrongly convicted of attempting to escape from lawful custody. The Supreme Court duly quashed Mr Adams’ convictions.

The unanimous judgment was given by Lord Kerr (former Lord Chief Justice of Northern Ireland), with whom Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett agreed.

Facts

Since the partition of Ireland in 1921, the British Government has introduced successive pieces of legislation, authorising the detention without trial of persons in Northern Ireland, commonly referred to as “internment”. Internment was last introduced on 9 August 1971, when British Army officers arrested over 340 people in violent dawn raids across the Province in an operation codenamed “Operation Demetrius”, now widely discredited as having relied on flawed and dated intelligence. Many of those interned were subjected to serious violence, and some to techniques now recognised as torture. By the time internment ended in December 1975, an estimated over 2,100 people had been interned, overwhelmingly from the nationalist / Catholic community. One of those was Gerry Adams, later to become the president of Sinn Féin, who was interned without trial in 1973.

The internment procedure in 1973 operated through the issuing of interim custody orders (“ICOs”), pursuant to article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (“the 1972 Order”), which authorised a person’s arrest and initial detention. An ICO was made in respect of Gerry Adams on 21 July 1973, resulting in his arrest and detention in the Maze. Two unsuccessful attempts to escape from prison, in December 1973 and March 1974, led to Mr Adams being convicted in 1975 of attempting to escape from lawful custody, for which he was sentenced to four and a half years’ imprisonment.

In these proceedings, Mr Adams challenged the validity of the 1973 ICO. He was prompted to do so by the release of official Government papers under “the 30 year rule”, pursuant to which certain Government records become available to the public 30 years after their creation. The papers revealed that the British Government had been aware of a procedural irregularity in relation to Mr Adams’ detention and that of hundreds of other internees. In a legal opinion, written in 1974, concerning Mr Adams’ 1975 prosecution, JBE Hutton QC (then legal adviser to the Attorney General, later Lord Hutton and Lord Chief Justice of Northern Ireland) questioned the premise of the prosecution. The advice suggested that it was a condition precedent to the making of a valid ICO that the Secretary of State should have considered personally whether he believed that the person to be detained was involved in terrorism. However, the ICO concerning Mr Adams had been signed by a Minister of State in the Northern Ireland Office, not by the then Secretary of State for Northern Ireland, Willie Whitelaw, and there was no evidence that the Secretary of State had ever personally considered his case.

Mr Adams argued that his detention on the basis of the 1973 ICO was therefore unlawful, and that his convictions for attempted escape from unlawful detention (his only ever convictions, Troubles-related or otherwise) should be quashed. The Court of Appeal in Northern Ireland dismissed his appeal. Mr Adams appealed to the Supreme Court against the Court of Appeal’s judgment.

The certified question

?The question certified was whether the making of an ICO under Article 4 of the 1972 Order:

  1. required the personal consideration by the Secretary of State of the case of the person subject to the order; or
  2. whether the Carltona principle operated to permit the making of such an Order by a Minister of State.
Judgment

The Supreme Court ruled unanimously that the making of an ICO pursuant to the 1972 Order required the personal consideration by the Secretary of State of the case of the person subject to the Order.

It did so on the basis of the express wording of Article 4(1) of the 1972 Order which provided that the statutory power to make an ICO arose “where it appears to the Secretary of State” that a person was suspected of being involved in terrorism. The wording of that provision was to be contrasted with the language of Article 4(2), which provided that “an interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State”. The Court held that the clear language of the provisions demonstrated a segregation of roles as between the making and the signing of an ICO, with the former being reserved to the Secretary of State exclusively. The use of the possessive “of the Secretary of State” in Article 4(2) further made clear that the ICO was personal to the Secretary of State.

In so finding, the Supreme Court rejected the application to the 1972 Order of the “Carltona principle”, so named after the Court of Appeal judgment in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. That provides (at p.563) that the duties imposed upon a Secretary of State and the powers conferred on a Secretary of State by Statute may be exercised under their authority by responsible officials in the Secretary of State’s department.

The Supreme Court found that a true construction of the 1972 Order demonstrated that it was the intention of Parliament to require the Secretary of State personally to take the “momentous” decision to make an ICO against an individual [38]. It was the Court’s view that such a “crucial decision”, capable of leading to the deprivation of a person’s liberty, without trial, for “potentially a limitless period” [38], should be made by the Secretary of State alone. The Supreme Court rejected the contention that that would have placed an excessive or undue burden on the Secretary of State for Northern Ireland in 1973, when the ICO was made in relation to Mr Adams, having regard inter alia to the fact that the subsequent Secretary of State for Northern Ireland from 1974 to 1975, Merlyn Rees, had made all ICOs personally ([19] and [39]).

In reaching its conclusion, the Supreme Court examined the nature and application of the?Carltona?principle, with regard to the case law relied upon by the Parties. The Court took the view that whether the Carltona principle should be deemed to apply to a particular statutory provision “should be approached as a matter of textual analysis”, having regard to a number of factors, notably:

  1. the framework of the legislation;
  2. the language of pertinent provisions in the legislation; and
  3. the importance of the subject matter, having regard to the gravity of the consequences flowing from the exercise of the power: the more serious the consequences, the more likely it is that Parliament intended the power to be exercised by the Secretary of State personally (see [26]).

Lord Kerr opined that the above textual analysis concerning the Carltona principle should be performed unencumbered by the application of a presumption” [26]. Indeed, the Supreme Court refused to rule at all whether there exists a presumption of general application that the Carltona principle applies to statutory provisions. The Court held that it was

“unnecessary for the purposes of the present appeal to reach a firm conclusion on the question whether it is now established that there is a presumption that Parliament should be taken to have intended that the Carltona principle should apply” [25].

Lord Kerr premised that refusal inter alia on his determination that, on the facts of this particular case, even if a presumption were found to have existed, it would have been displaced by the clear statutory language of Article 4 of the 1972 Order [26].

Discussion

The judgment has significant ramifications beyond Mr Adams’ case. It adds further contention to what was already a controversial use of power by the British Government in Northern Ireland, predominantly against the minority nationalist / Catholic community, widely perceived as having fanned the flames of violence in the Province for years thereafter. It calls into direct question the lawfulness of the internment and convictions of hundreds of individuals interned in Northern Ireland in the 1970s, many of whom have already begun proceedings to challenge the lawfulness of their own detention.

It also has ramifications beyond the context of the Troubles. It leaves open to potential challenge any other “momentous” decisions taken by junior ministers pursuant to different legislative provisions, which might similarly be found retroactively by the Courts to be of no legal effect, for the fact that they were not personally taken by a Secretary of State. That has led to strident criticism of the five eminent Law Lords for purportedly misunderstanding in their judgment the fundamentals of the way the Government works in practice, through the delegation of decisions and duties by Secretaries of State to junior ministers. It has been asserted that the judgment now throws that system into disarray. There have been calls for Parliament to respond to the judgment by placing the Carltona principle on a general statutory footing – and indeed for Parliament to legislate to retroactively validate all 1970s ICOs, to prevent other former internees being able to challenge the lawfulness of their detention.

The strength and vehemence of those critiques is difficult to square with the proposition for which the judgment stands: that where the Government is taking “momentous” decisions to deprive individuals of the most fundamental of rights, such decisions should be subject to enhanced scrutiny and care, and given the most careful consideration possible by those ultimately responsible to Parliament for them. In the times in which we live, and with the benefit of hindsight as to the injustices caused by certain such decisions in the recent and not so distant past, it is surprising that such a proposition should be perceived as controversial.