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In praise of constitutional flexibility

It was right to reverse the Supreme Court’s decision on Gerry Adams

The House of Lords has now accepted an amendment to the Northern Ireland Troubles (Legacy and Reconciliation) Bill that will prevent compensation wrongly being paid to those detained under the policy of internment at the height of the Troubles. The amendment reverses the legal effects of the Supreme Court’s judgment in R v Adams [2020] UKSC 19. When the Bill comes into force, Parliament will prevent an injustice and will restore a fundamental principle of the UK constitution.

The question for the Supreme Court in Adams was not whether internment was justified or even whether it was lawful. The Detention of Terrorists (Northern Ireland) Order 1972 clearly authorised detention of persons suspected of involvement in terrorism. Why then did the Supreme Court allow the appeal of former publican and noted Irish Republican Gerry Adams in May 2020 against his conviction in 1975 for attempting to escape from lawful custody?

The Court quashed the interim custody order (“ICO”) made against Adams on the grounds that it was signed by a Minister of State at the Northern Ireland Office — a junior minister — and there was no evidence that it had been made by the Secretary of State himself, then Willie Whitelaw. Without a lawful ICO, Adams had not been lawfully detained, the Court said, and so his attempted escape from Maze Prison was not escape from lawful custody. The Court reasoned that an ICO had to be personally considered and made by the Secretary of State himself, not by a more junior minister.

Before the Supreme Court’s judgment, almost no one had doubted that a junior minister could make an ICO on behalf of the Secretary of State. This conclusion was supported by the Carltona principle, which provides that a power conferred on a Secretary of State by statute may be exercised by junior ministers or officials acting on his behalf. This principle is vital to modern government: Parliament confers thousands of powers and duties on secretaries of state, which would be simply impossible for a single minister personally to discharge. It is no exaggeration to say that without Carltona, the governance of the United Kingdom would become impossible.

Of course, Parliament has the power to require the Secretary of State to consider a matter personally. The structure of the 1972 Order, however, which required an ICO to be signed by a Minister of State, the Secretary of State or an Under Secretary of State, would have made no sense had Parliament intended to require the Secretary of State personally to make an ICO. Indeed, during the passage of the 1972 Order through Parliament, the-then Attorney-General clearly said that the power to make an ICO was exercisable by all those authorised to sign an ICO.

The Court’s judgment threw the force of the Carltona principle into doubt

The Supreme Court’s decision not only quashed Gerry Adams’ criminal conviction (the validity of which not even he had doubted for decades), but it also enabled him to seek damages for false imprisonment and compensation for wrongful conviction. Hundreds of others, whose ICOs had been signed by junior ministers, stood to gain similarly.

Even more worryingly, the Court’s judgment threw the force of the Carltona principle into doubt, calling into question whether it was a presumption of statutory interpretation at all. The judgment thus risked undermining the validity of an unknown, but possibly vast, number of official acts.

If the case for reversing Adams by legislation now seems obvious, the path to the statute book was not straightforward. True, the problems with the decision and the need for remedial legislation were made clear by Professor Ekins and Sir Stephen Laws in a Policy Exchange paper published a fortnight after the judgment was handed down. They pointed out the flaws in the Court’s judgment, as well as its implications for government across the UK and for historical justice in Northern Ireland in particular.

Policy Exchange also published a personal memoir by Lord Howell of Guildford, the last surviving member of the ministerial team at the Northern Ireland Office at the time of the ICO against Gerry Adams. Lord Howell explained how ICOs were made, showing the great strain the security situation in Northern Ireland had imposed on ministerial decision-making, which would have been impossible had the Carltona principle not applied to enable junior ministers to act on the Secretary of State’s behalf.

Crucially, he pointed out that, although no documentation now showed that the Secretary of State had personally considered the ICO that was made in relation to Gerry Adams, it was inconceivable that Whitelaw would not have been consulted and authorised it, given Adams’ public profile.

In 2021, Lord Reed, the president of the Supreme Court (who did not sit in the case), told the Constitution Committee of the House of Lords that Adams sounded “like a wayward judgment”. Still, the Government proved reluctant to introduce legislation, perhaps in view of the political sensitivities about legacy cases and perhaps in view of caution on the part of government lawyers.

In May this year, Lord Godson, Director of Policy Exchange, and Lord Faulks KC, former Justice Minister, tabled an amendment to the Northern Ireland Troubles (Legacy and Reconciliation) Bill to reverse the effects of Adams. When it was first debated at committee stage on 11 May, it received support from peers from across the House.

The amendment — and another Policy Exchange paper published on 23 June — attracted the backing of a very distinguished line up of peers, including Lord Brown of Eaton-under-Heywood, a former Law Lord, whose support for the amendment was one of his last public acts before his death on 7 July. Other supporters included former Cabinet Secretary Lord Butler of Brockwell, former Conservative leader Lord Howard of Lympne KC, former Director of Public Prosecutions Lord Macdonald of River Glaven KC, and the former Labour minister Lord West of Spithead.

The reversal of Adams vindicates Parliament’s vital constitutional role

In the end, the Government, which was at first inclined to resist the amendment, bowed to the mood of the House and brought forward its own amendment, which was adopted with support of peers from all parties. None of the parties — some of which have otherwise been very critical of the Bill — sought to divide the house on the amendment.

What should we take away from this episode? For a start, Policy Exchange should be commended for providing intellectual leadership, pointing out the flaws in the judgment and making clear the public importance of its legislative reversal, which helped to build a cross-party coalition that overcame the Government’s initial reluctance to act. The parliamentarians who took up Ekins and Laws’ arguments and brought this saga to a just conclusion should be congratulated on a good day’s work.

The reversal of Adams vindicates Parliament’s vital constitutional role in changing the law in response to a judgment, particularly when it thinks the judgment misstates the law (and mistakes the intent of the legislator in particular) with damaging consequences. For Parliament to disagree with a court’s reasoning, and to legislate on this basis, is not in the least disrespectful of judicial independence or the separation of powers. One must hope that this precedent will embolden future Parliaments to deliberate freely about when and whether they should correct an erroneous and constitutionally unsound judgment.

Unlike in some jurisdictions where a dubious Supreme Court judgment might take many (many) years to redress, here corrective action was brought to bear relatively quickly. Speaking as a scholar of comparative constitutional law, this kind of constitutional flexibility is key to maintaining the balance of the constitution — something to be carefully guarded and protected in the years ahead.

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