My Lords, I shall speak to Amendment 154A. I apologise for my late arrival to the debate on this important Bill, and for the lateness of this amendment, in my name and that of the noble Lord, Lord Godson.
At first sight, noble Lords may be a little bewildered as to where the amendment is directed. It arises out of a decision of the Supreme Court in a case concerning Gerry Adams. The decision was given on 13 May 2020.The only judgment of the court was given by
Lord Kerr, who described the regime in Northern Ireland, commonly known as internment. As many noble lords will be aware, the way in which interment operated was initially by an interim custody order, or ICO, which was made when the Secretary of State considered that an individual was involved in terrorism. That person was taken into custody and had to be detained there, to be released within 28 days unless the chief constable referred the matter to a commissioner. Detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered.
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An ICO was made in respect of Gerry Adams on 21 July 1973. It was signed by a Minister of State in the Northern Ireland Office; it was then referred to a commissioner on 10 August, who decided that Adams should continue to be detained. He attempted to escape on more than one occasion and was sentenced to terms of imprisonment for each offence.
What was at the centre of the appeal before the Supreme Court was the validity of the ICO made on 21 July 1973. Although the order could be signed by a Secretary of State, a Minister of State or an Under-Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose
“where it appears to the Secretary of State”
that a person was suspected of being involved in terrorism. In the view of the court, there being no evidence that the Secretary of State personally considered whether Adams was involved in terrorism, the question was whether the ICO was validly made.
The Supreme Court decided, in reversing decisions of the lower court, that it had not been validly made, notwithstanding the well-established Carltona principle which had been persuasive in the lower courts. This principle, which dates back at least to 1943, means that a decision entrusted by Parliament to the Secretary of State may generally be taken by a suitably qualified official, while the Secretary of State remains accountable to Parliament. I shall not go into the reasoning of the Supreme Court, but it is enough to say that it rejected the argument that the Carltona principle applied to the ICO and questioned whether a presumption existed as to its application in circumstances like this. The court appeared to be influenced by the momentousness of the decision to intern, and concluded that in all the circumstances it was Parliament’s intention that the power under Article 4(1) of the 1972 order should be exercised by the Secretary of State personally.
The decision was greeted with considerable surprise in a number of quarters—not least, I suspect, in the Civil Service, and by Ministers who had awareness of these provisions. It had significant consequences for many other decisions made by ICOs and placed in doubt what had been well understood and embedded in government practice. Among the critics of the decision was the think tank Policy Exchange, which published a paper on the case three years ago. Its authors were Professor Richard Ekins KC and Sir Stephen Laws. A foreword was written by Sir Geoffrey Cox KC and an
introduction provided by the noble Lord, Lord Butler, who is in his place. All agreed that the decision was wrong and that the Detention of Terrorists (Northern Ireland) Order l972 authorised a Secretary of State, a Minister of State or Under-Secretary of State to authorise temporary detention. Personal consideration by the Secretary of State for Northern Ireland was not required.
A significant concern was expressed that the consequence of the decision was that Adams and perhaps many others would seek compensation for what was essentially a technical matter on the basis that they had been deprived of their liberty unlawfully. As the noble Lord, Lord Butler, put it, the judgment
“could spur litigation that will hamstring effective government and create unnecessary doubt about who in government may lawfully act”.
The noble Baroness, Lady Hoey, who is in her place, asked the Minister in a Written PQ in November 2021 whether there had been any claims resulting from the decision. The Answer, given commendably promptly, was that Adams had not made a claim but there were a number of other claims at an early stage based on the allegation that
“they were unlawfully detained on a similar basis to Mr Adams”.
The Minister may well be able to update the Committee. Newspaper sources suggest that there may be as many as 400 claims and that the sums involved may be substantial.
This amendment seeks to overturn the decision of the Supreme Court. It does not revive any criminal conviction quashed, as with Adams’s attempted escape from prison, but it does prevent any damages being recovered where the only basis for claims is the Adams technicality, if I may call it that. I understand that the Minister and his officials have had only limited time available to them to respond to this amendment. However, I hope it will be welcomed by the Government. It represents an opportunity to put right an erroneous decision and prevent unmeritorious claims being pursued. Just as importantly, it would restore the well-understood and important Carltona principle to its proper place.