R v Adams (Northern Ireland)

A statutory power conferred on the Secretary of State may be exercised by departmental ministers or officials under the Carltona principle unless the legislation, properly construed, requires personal exercise. The statutory framework, the precise language used and the gravity of the consequences may reveal that intention.

Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 separated the making of an interim custody order from its signature. The order had to be made personally by the Secretary of State, although a junior minister could sign it. An order made without the Secretary of State’s personal consideration was invalid. Detention under that order was unlawful, so convictions for attempting to escape from lawful custody could not stand.

An interim custody order was made in respect of the appellant under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972. It was signed by a Minister of State. There was no evidence that the Secretary of State personally considered whether the appellant was suspected of involvement in terrorism. The appellant was subsequently convicted of two attempts to escape from lawful custody.

After a previously undisclosed legal opinion came to light, the appellant obtained an extension of time to appeal. The Northern Ireland Court of Appeal unanimously dismissed his appeal in [2018] NICA 8. The central issue before the Supreme Court was whether article 4 required the Secretary of State’s personal consideration or whether the Carltona principle permitted a Minister of State to make the order.

1. The appeal was allowed unanimously and both convictions were quashed. Lord Kerr, with whom Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett agreed, held that the interim custody order had been made invalidly. The appellant’s detention was therefore unlawful, and the convictions for attempting to escape from lawful custody could not stand.

2. The Carltona principle recognises that statutory functions conferred on ministers are generally exercised under their authority by responsible departmental officials. Parliament may, however, require a function to be exercised personally. Whether it has done so depends on the proper construction of the particular legislation.

3. It was unnecessary finally to decide whether there is a legal presumption that Parliament intends the Carltona principle to apply. Lord Kerr’s provisional view was that the issue should be determined by textual analysis without such a presumption. Relevant considerations include the legislative framework, the language of the pertinent provisions and the gravity of the consequences flowing from the power. Even if a presumption existed, article 4 displaced it unmistakably.

4. Article 4(1) and article 4(2) of the Detention of Terrorists (Northern Ireland) Order 1972 deliberately segregated two functions. Article 4(1) entrusted the making of an interim custody order to the Secretary of State. Article 4(2) separately permitted a Secretary of State, Minister of State or Under Secretary of State to sign the Secretary of State’s order. The words “of the Secretary of State” confirmed that the underlying decision was personal to that office-holder.

5. The gravity of the power supported that construction. It authorised detention without trial, potentially for an indefinite period. The seriousness of the consequences was relevant because it provided insight into Parliament’s intention, although it was not an autonomous or invariably decisive factor. Brightman J’s contrary approach in In re Golden Chemicals Products Ltd was disapproved to that extent.

6. Requiring personal consideration would not have imposed an impossible burden. A succeeding Secretary of State had personally considered all such orders. Authorities concerning statutory schemes with different language or substantial administrative burdens did not determine the construction of article 4.

7. The parliamentary statements relied upon did not satisfy the rule in Pepper v Hart. The legislation was neither ambiguous nor obscure, and the statements lacked the required clarity. They were therefore inadmissible as an aid to construction.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and quashed both convictions: [2020] UKSC 19.
2. Northern Ireland Court of Appeal: Unanimously dismissed the appeal against conviction: [2018] NICA 8. It subsequently refused permission to appeal but certified a point of law of public general importance.
3. Trial proceedings: The appellant was convicted in 1975 of two offences of attempting to escape from lawful custody.