Secretary of State for Northern Ireland (): In 2020, the Supreme Court
ruled that the detention of - who was interned in July 1973
- was unlawful because the Interim Custody Order was not
personally signed by William Whitelaw, the Secretary of State for
Northern Ireland at the time. The Supreme Court's view was that
the wording of the provision indicated that the Carltona
principle was displaced. The Supreme Court quashed Mr Adams'
convictions for escaping from prison whilst detained under the
1973 order, and he has since applied to the Department of Justice
in Northern Ireland for miscarriage of justice compensation.
The Carltona - based challenge was made over 40 years after the
order for Mr Adams' internment. There had been no suggestion at
the time of enactment or in the intervening period in any other
previous case that the lawfulness of the Interim Custody Orders
were in doubt because they were made and signed by Ministers
rather than the Secretary of State personally. At the time that
these decisions were taken, Ministers believed they were acting
lawfully on the basis of the Carltona doctrine. We consider that,
based on Parliament's intention, they were right to do so.
We consider that it would be unjust and inappropriate in public
interest terms, for those who were detained under these Orders to
be able to make claims based on the fact that it was Ministers
and not the Secretary of State personally who made the Orders.
Importantly, there has never been any argument that there was
anything other than a proper and lawful substantive basis for
making the orders in the Adams case - the grounds for
detention were appropriate and sound under the legislation. There
can thus be no real doubt that the decisions would have been
precisely the same if it had been the Secretary of State taking
the decision on the same material as was before the Ministers.
We consider that, in all the circumstances, the right course is
one of correction, so that the law is treated as having always
been as Ministers then understood it to be. Parliament can
change, and can clarify, the law as it wishes, including to
correct what it perceives to be errors or unintended consequences
flowing from court decisions. It can also ensure that such a
change is to be taken as having always been the case – in short,
applying the correction of the law retrospectively. Parliament
has done so in the past precisely to correct what it considers to
have been an incorrect interpretation of the law by the courts.
Clauses 89 and 90 of the Northern Ireland Troubles Bill are
specifically intended to address the erroneous interpretation
made in Adamsregarding the application of the Carltona
principle. The Carltona principle is a vital principle for
Government; and it is right that it should be protected including
by dealing with what are considered to be incorrect inroads into
it. These clauses put it beyond doubt that the Carltona principle
applied in the context of interim custody orders, by stating that
any order made by a Minister of State or Under Secretary of State
is to be treated as an order of the Secretary of State.
One effect of the clauses the Government is introducing is that
compensation will not be payable in the Adams case and other
similar cases. That is the effect of the provision made in the
new clauses that they are to be treated as always having had
effect – that is designed to ensure a genuine correction of the
law. We consider that that is the right decision for Parliament
to make.
We also consider that it is a course that is compatible with our
obligations under the European Convention on Human Rights - which
we take extremely seriously. For all the reasons I have given – I
have felt able to make a section19(1)(a) HRA compatibility
statement to that effect, and hope that the House agrees that
this is the appropriate course of action to take.
