Paul Daly

On two occasions in the 1970s, Gerry Adams, allegedly a leading member of the Irish Republican Army at the time and later a prominent Sinn Féin politician, was convicted of attempting to escape from lawful custody. Adams had been imprisoned under an interim custody order (ICO) as part of the British government’s policy of internment, pursuant to which individuals suspected of involvement in terrorism were detained indefinitely.

Many years later, Adams learned from government documents released under the ’30-year rule’ that there had been doubts at the time about the lawfulness of his detention. He sought to appeal his convictions and was granted permission to do so. The UK Supreme Court decided yesterday, in R v Adams [2020] UKSC 19, that his detention was unlawful, because it was not authorized personally by the Secretary of State for Northern Ireland, and accordingly that the convictions had to be quashed.

In his judgment for a unanimous court, Lord Kerr cast doubt upon the continued applicability of the principle set out in Carltona Ltd v Comrs of Works [1943] 2 All ER 560. I tend to think, however, that the decision in Adams is perfectly consistent with the authorities on Carltona and is unlikely to have far-reaching consequences.

At issue was whether the power to detain suspected terrorists indefinitely could lawfully be exercised by a junior minister rather than by the Secretary of State himself. Lord Kerr took the view that “an open-ended examination” of three factors was required to address this issue, namely, “the framework of the legislation, the language of pertinent provisions in the legislation and the ‘importance of the subject matter’, in other words, the gravity of the consequences flowing from the exercise of the power” (at para. 26).

The relevant legislation — the Detention of Terrorists (Northern Ireland) Order 1972 — drew two notable distinctions. First, it distinguished the making of the order (which was to be done by the Secretary of State) from the signing of the order (which could be done by the Secretary of State or his juniors). Second, the order to be signed was described as “the order of the Secretary of State” (at paras. 31-32). These distinctions reinforced the “clear and precise” language in the Order vesting the order-making power in the Secretary of State (at para. 29): “The segregation of the two functions (the making and the signing of ICOs) cannot have been other than deliberate” (at para. 37). This was enough, for Lord Kerr, to displace any application of the Carltona principle.

There is nothing unusual about this conclusion. It has long been black-letter law that the Carltona principle can be defeated by express or necessarily implicit statutory language (see e.g. CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, at p. 183; Attorney General (Quebec) v Carrières Ste-Thérèse Ltée [1985] 1 SCR 831; Re Patterson, ex parte Taylor (2001) 207 CLR 391). As MacMenamin J explained for the Irish Supreme Court in WT v Minister for Justice [2015] IESC 73:

On this point, Adams breaks no new ground.

Lord Kerr supported his conclusion about the text of the Order by reference to two further considerations. First of all, he noted the “momentous” character of the power vested in the Secretary of State (at para. 38). That “[t]he provision did nothing less than give the Secretary of State the task of deciding whether an individual should remain at liberty or be kept in custody, quite possibly for an indefinite period” militated in favour of concluding that Parliament intended “such a crucial decision” should be taken by the Secretary of State personally (at para. 38).

It is true that it has been doubted that the importance of the interests at stake is a relevant consideration in applying the Carltona principle (see paras. 11-14, discussing In re Golden Chemicals Products Ltd [1976] Ch 300). But liberty interests were at stake in the UK Supreme Court’s most recent discussion of the Carltona principle and seemed there to weigh against its application in the context of prison decision-making (Bourgass v Secretary of State for Justice [2015] UKSC 54). Professor Joseph has written unequivocally that “a minister personally must discharge legislative functions and make important decisions affecting individuals” (Constitutional and Administrative Law in New Zealand, 4th ed. (Thomson Reuters, Wellington, 2014), at p. 981). This aspect of Lord Kerr’s judgment is certainly very important but only, I would say, in that it makes explicit what has previously been implicit, namely, that where a decision will have serious consequences for an individual’s interests, it is more likely that the decision will have to be taken by a minister personally.

The second additional consideration invoked by Lord Kerr was that there was no reason to fear that it would have placed an “impossible burden” on the Secretary of State to require him to take decisions personally (at para. 39). Indeed, the successor of the Secretary of State at the time of the detention of Adams did make internment decisions personally. A concern for effective and efficient public administration has long been a feature of Carltona cases. Indeed, it featured heavily in Carltona itself. Lord Greene MR reasoned in favour of permitting civil servants to take decisions on behalf of Secretaries of State that the functions given to ministers by various statutes are “so multifarious that no minister could ever personally attend to them” (at p. 563). A contrario, where this is not the case — as in Adams — the Carltona principle has much less force.

This ‘good administration’ consideration has also motivated the application of the Carltona principle outside the context of ministerial decision-making, for instance in the police force (see e.g. Director of Public Prosecutions v Haw [2008] 1 WLR 379, at para. 29; Castle v Director of Public Prosecutions [2014] 1 WLR 4279, at para. 28; R (Hamill) v Chelmsford Justices [2015] 1 WLR 1798, at para. 64) and further afield (see e.g. Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340 at 371 (taxation administration); Ex parte Forster; Re University of Sydney (1963) 63 SR (NSW) 723 at 733 (University senate); R v Harrison [1977] 1 SCR 238 (Attorney General); O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 (taxation administration); Attorney-General (Cth) v Foster (1999) 84 FCR 582 (Attorney General). Again, there is nothing new about Lord Kerr’s reliance on a concern for effective and efficient public administration in applying the Carltona principle.

In sum, statutory language, a concern for individual interests and judicial solicitude for effective and efficient have always been important in the context of applying the Carltona principle. The ratio decidendi of Adams is thus decidedly traditionalist.

Lord Kerr did take a swing at Carltona in the following passage:

It is clear, however, that these comments were obiter. Moreover, they are in tension with a common understanding of the Carltona principle. Carltona means that a civil servant in a government department will be treated as the alter ego of the responsible minister. As a matter of law, decisions of civil servants are decisions of the minister. Thus where a statute identifies the minister as the decision-maker, a civil servant may in principle take the decision:

On this understanding, the Carltona principle does not create presumptions but merely recognizes the constitutional reality that ministers act through their civil servants (and, given the exigencies of modern administration, must act through their civil servants). On occasion, statutory language will make it clear that ministers may not properly so act, a conclusion which may be supported by the individual interests at stake (as in Bourgass and Adams). But it is unhelpful in determining what ministers can and cannot do to think of the Carltona principle as a “legal presumption” or to invoke the jurisprudential background against which Parliament has been legislating. Simply put, civil servants are the minister, unless a personal decision of the minister is required.

Adams, then, serves as an interesting application of settled principles and clarifies beyond any doubt that the importance of a ministerial decision for the individual on the receiving end has a bearing on the applicability of the Carltona principle. But despite Lord Kerr’s best efforts, there was no escape from Carltona here.

• Paul Daly is chair in administrative law and governance at the University of Ottawa. His scholarship in the field of public law, particularly administrative law, has been widely cited, including by the Irish Supreme Court. This article first appeared on his blog, Administrative Law Matters.