R v Adams (Northern Ireland)

Facts

In 1973 Adams was detained in Northern Ireland under an interim custody order made under the Detention of Terrorists (Northern Ireland) Order 1972. The order was made in the name of the Secretary of State for Northern Ireland, but it was considered and signed by a Minister of State, not by the Secretary of State. While detained, Adams was later convicted of attempting to escape and of escaping from lawful custody. He argued that, because the order was invalid, his custody was not lawful and the convictions could not stand.

History

The Court of Appeal in Northern Ireland dismissed his appeal against conviction, and the Supreme Court allowed his further appeal.

Issue

Whether the Carltona principle, under which a power conferred on a minister may be exercised by an official or another minister acting for him, allowed an interim custody order to be made by a Minister of State; or whether the 1972 Order required the Secretary of State personally to consider the case.

Held

Appeal allowed and the convictions quashed. On the true construction of the 1972 Order, which allowed a person to be detained without trial, the Secretary of State had to consider the case personally; the Carltona principle did not apply, so the interim custody order was invalid and the custody was not lawful.

Ratio

• The Carltona principle is a presumption about how statutory powers are exercised and does not apply where the legislation, read in its context, requires the minister to take the decision personally.
• A power to detain a person without trial, which makes a severe inroad into liberty, is to be construed as requiring personal consideration by the Secretary of State.

Key reasoning

• Carltona rests on the practical need for ministers to act through the officials in their departments, but it is a rule about the way a power is ordinarily exercised and yields to contrary indications in the statute.
• The gravity of detention without trial, and the structure of the 1972 Order, with its provision for later review, pointed towards a requirement that the Secretary of State give personal consideration to the case.
• Because the order was not validly made, the custody in which Adams was held was not lawful, and the offences of escaping from lawful custody could not be made out.

Where it fits in the module

On the Delegation topic, the FHS discussion starts from Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, under which departmental decisions are treated as ministers own, and from R v Secretary of State for the Home Department, ex p Oladehinde [1991] 1 AC 254, where the House accepted that the principle covers ordinary administrative functions. Adams is the key modern limit: it shows that the rule is a presumption, that the court asks whether the statute and the nature of the power require personal exercise, and that the answer is more likely to be yes where the power affects liberty. Candidates should link it to the rule of law, accountability to Parliament and the debate whether ministerial responsibility justifies delegation.

Criticisms

• The case turns a rule of administrative convenience into one that depends on the weight of the interests affected, and critics say the test of when a power needs personal exercise is uncertain and invites litigation over old decisions.
• Quashing convictions because a minister of state, not the Secretary of State personally, took the decision elevates form over substance, since the order was still considered at ministerial level within the same department.
• Carltona had long been understood to cover ministers acting for one another as well as officials, so the Supreme Court cut back a principle thought settled for ministerial functions.
• Applying the construction of a 1972 Order to a decision of 1973 has retrospective consequences for criminal convictions, and critics argue that finality and the lawfulness of acts done in the context of the Troubles should weigh more heavily.