By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
Normally, when we talk about a constitutionally controversial case, we are concerned about the division of power between the courts and the government or the legislature. Have the courts gone too far, straying into the political arena? Adams is slightly different. Here, the accusation is that Adams changed a long-standing understanding about how the government operates in practice. In doing so, it would make it harder for the government to operate efficiently. Is this true? If so, does this mean that the courts have gone too far?
What is the case about?
Adams concerns a decision of the Supreme Court regarding the detention of Gerry Adams in the 1970s, during the times of violence in N Ireland. An interim custody order had been issued against Gerry Adams and, on the basis of this order, he was detained without trial – interned. He subsequently escaped or tried to escape on a few occasions. He was then charged with offences relating to these attempts to escape custody.
30 years later, evidence came to light that the interim custody order under which Adams was detained may have been issued unlawfully. This was because it had not been made by the Secretary of State. However, it was argued that the Secretary of State should have made the order. If true, then Adams would have been detained unlawfully.
The Government argued that the order was lawful. It did not matter that the order may have been issued by someone other than the Secretary of State because of a principle of law established in Carltona v Commissioner of Works. This states that, when a power is granted to a Minister, this can normally be exercised by anyone in the Minister’s department who is sufficiently responsible. In this case, a power had been granted to the Commissioner of Works to be able to requisition property. The Assistant Secretary had issued an order on behalf of the Minister to requisition a factory. The court concluded that this was a lawful requisition order.
This helps to ensure the efficient administration of government. Ministers have lots of powers and often it would not be possible for them to take every decision. It is more efficient for some decisions to be made by those in their department. The Minister is then accountable to Parliament for the actions of those in his or her department.
What did the court decide?
Lord Kerr, who gave the judgment of the Supreme Court, concluded that the interim custody order was unlawful. Before understanding how he reached this conclusion, we need to understand some possible arguments he could have made that he rejected. This helps us to understand how far – if at all – the Adams decision changes the Carltona principle.
First, Lord Kerr did not argue that an interim custody order was so serious, or had such a large impact on individuals, that it could only be made by a Minister. We can understand how this argument could have been made. The interim custody order detained Gerry Adams without trial due to the fact he was a suspected terrorist – a serious deprivation of liberty, albeit one done in the name of national security.
Second, Lord Kerr did not argue that there was no need to apply Carltona because it was not required to ensure efficient government in this case. It might have been possible to argue that so few interim custody orders that it would have been possible for the Minister to have signed them all himself, meaning that there was no justification for the Minister to delegate this to other responsible members of his department.
So, how did Lord Kerr conclude that the Carltona principle did not apply in Adams? This all depends on how we apply Carltona. One argument is that Carltona is a statutory presumption of interpretation. What we mean by this is that courts will assume that Carltona applies to all statutory provisions granting a power to a Minister unless it is clear from the words in legislation that Parliament did not want Carltona to apply.
Lord Kerr cast doubt on whether the Carltona principle should be regarded as a statutory presumption. Rather than assuming Carltona applies, unless legislation makes it clear that it does not apply, courts should examine legislation carefully to determine whether Carltona applies or not. Do the words in legislation suggest that a power given to a Minister in legislation could only be exercised by that Minister?
This may seem like a small difference in approach. Indeed, when applying this in Adams, Lord Kerr concluded that it would have reached the same conclusion regardless of the approach taken. This is because of the wording of the Detention of Terrorists (Northern Ireland) Order 1972. Article 4(1) of that Order empowered the Secretary of State to make an interim custody order when it appeared to the Secretary of State that a person is suspected of having been concerned in the commission or attempted commission of terrorism, or is involved in the direction, organisation, or training of others to commit acts of terrorism. Article 4(2) stated that the interim custody order made by the Secretary of State had to be signed by a Secretary of State, a Minister of State or the Under Secretary of State.
Lord Kerr argued that this wording meant that the Secretary of State had to make the order. Article 4(2) specifically referred to ‘an interim custody order of the Secretary of State’. Moreover, it provided for a longer list of those who could sign then order than those who could make the order. There would be no need for this distinction if Carltona had applied and the order could have also been made by sufficiently responsible officials in the department.
Lord Kerr reinforced his conclusion by taking account of the serious nature of the interim custody order, which deprived individuals of liberty without charge and merely on the suspicion of the Minister that they were suspected of being involved in terrorist activities. Moreover, he argued that there were not so many interim custody orders that, for reasons of efficiency, the Secretary of State would need to delegate this power to other responsible officials in his ministry.
Was this wrongly decided on the facts?
It is argued that the decision was wrongly decided on the facts. This is because, although there are different words concerning who makes and who signs an interim custody order, it is not clear that this meant that only the Minister could make the order. Those who were empowered to sign the order were already sufficiently important and responsible individuals to take such a serious decision that might impair liberty. If they could sign the order, then surely, they would also be able to make the order?
Second, although there may not be too many interim custody orders, there was always the issue of the need for officials to be present in N Ireland to have the requisite information to confirm suspicions of terrorism. Efficiency would dictate therefore that the Minister may not always be needed to take this decision, particularly when this may require travelling backwards and forwards between Northern Ireland and Westminster to do so.
Third, to conclude that this order was unlawful could have further ramifications – how many others may now also be deemed to have been unlawfully interred and would they be able to bring an action for damages for unlawful imprisonment?
Has this undermined the efficiency of government?
The general statutory presumption of the application of the Carltona principle helps to effective operation of government. It means that powers can be granted to Ministers, but operated by others in the department, so that government can work efficiently. If there is no such general presumption, this means that each power will have to be looked at individually to determine whether it can be made by officials in a governmental department, or only by the Minister. Legislation is enacted on the basis that Carltona will normally apply. Will courts now read legislation differently, opening up the floodgates to a series of legal challenges and undermining government efficiency?
Does it matter if Carltona is regarded as a statutory presumption of interpretation, or if courts take account of the Carltona when interpreting legislation? Lord Kerr, in his judgment, did not seem to think this distinction matter in practice. Courts recognise that Carltona is a well-known principle of English law and that Parliament would have legislated accordingly.
It’s also important to recognise that Adams is a case that is decided on its own f specific facts. Whilst this may have repercussions for the legality of other interim custody orders, other cases applying Carltona will all be decided on the specific wording of the legislation in question. It may be, therefore, that there is very little impact on the efficient operation of Government in practice.
More importantly, there may be a justification for why Carltona should not operate as a general presumption of statutory interpretation. If Carltona is a general statutory presumption, then the default position is that any power granted to a Minister can always be exercised by others in the Ministerial department who is sufficiently senior. But it may not always be the case that a Minister will be held to account by Parliament for the actions of those in his or her department. Also, this may transfer important decisions to officials in ministerial departments.
If there is no general statutory presumption, then drafters of legislation may need to ensure that, particularly when concerned with powers that could deprive individuals of their liberty or harm other rights, it is made clear whether this can be exercised by a sufficiently responsible official as well as a Minister. This can then draw the attention of Parliament to this power when the proposed legislation is debated in Parliament. This may help to ensure that government efficiency is balanced against the need to ensure that there are also effective political checks over those exercising powers that can significantly harm individual rights.