Austen Morgan: As Gerry Adams awaits compensation for his unlawful detention, a legal conundrum could get in the way

21 Apr

Dr Austen Morgan is a barrister at 33 Bedford Row chambers and was one of the UUP’s lead negotiators for the Belfast Agreement.

Gerry Adams – he of “I was not a member of the IRA” – has done well out of being a terrorist suspect. However, he, and those seeking to augment their IRA pensions, might be stopped in their tracks, if something said recently by Lord Reed of Allermuir, the President of the Supreme Court, leads to an error of law being corrected.

More of that in a moment – but our story begins a long time ago, when Parliament enacted the Detention of Terrorists (Northern Ireland) Order 1972 after direct rule.

Article Four of the Order provided that: “(1) Where it appears to the Secretary of State that a person is suspect of having been concerned in the commission or attempted commission of any act of terrorism…the Secretary of State may make an order…for the temporary detention of that person. (2) An interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State.”

Back in 1972, the case of Carltona v Commissioner of Works [1943] 2 All ER 560 was well established. The Carltona principle was that a secretary of state, entrusted with powers, could delegate these to a junior minister or even an official.

In 1973, an interim custody order was made in respect of Adams. It was made by a junior minister in the Northern Ireland Office, acting on the advice of officials. Adams attempted to escape from the Maze prison later that year, and again in 1974. Charged with these criminal offences, he was sentenced eventually to 4.5 years’ imprisonment.

Everyone in the Northern Ireland Office knew who Adams was: William Whitelaw, the Secretary of State, had secretly met a six-strong IRA delegation in 1972 – including one Gerry Adams – in Cheyne Walk in Chelsea for abortive talks.

During the prosecution of Adams, Brian Hutton QC – later a law lord in the time of Tony Blair – advised the (English) attorney general that a court might take the view that the Secretary of State had to personally consider whether to detain a suspect or not. His equivocal legal opinion of 1974 remained private. Adams did not appeal his convictions in 1975 for attempted escape. Then, in 2005, the Hutton opinion and other documents were released under the 30-year-rule by the national archives in Kew.

Adams duly appealed the 1975 convictions, though he took his time in doing so. He lost in the Northern Ireland court of appeal, in February 2018. But – to considerable surprise – he succeeded in the Supreme Court, in May 2020.

The judgment was given by Lord Kerr, a former lord chief justice of Northern Ireland, who had become a law lord in 2009, and retired early from the Supreme Court in October 2020 (dying in December).

Kerr came to judge controversial Northern Ireland cases (see Finucane in February 2019), with the other justices tending to go along with him. His argument in relation to Adams’ appeal was: the Secretary of State had to make the decision personally, but a junior minister could sign the interim custody order without bothering to read it or related papers!

In March this year, Reed, and the Deputy President of the Supreme Court, Lord Hodge (also a Scot), had their annual evidence session remotely with the constitution committee of the House of Lords, chaired by Baroness Taylor of Bolton. No one remarked that it was St. Patrick’s day.

Reed – probably thinking of Baroness Hale in 2019 in Miller Two – had prepared a reform to announce to the committee: “A third step has been to encourage our justices, when writing judgments, to engage fully with what was decided by the courts below and to acknowledge the contribution that the judges made, because previously there had been a tendency on the part of some justices to write as if they were dealing with a blank sheet of paper, ignoring what had been said by the courts below. That had not been a very well-received practice.”

Lord Howell of Guildford, aged 85 years, was one of the twelve members of the committee. Back in 1972, he was a junior minister in the Northern Ireland Office. He (it is not clear) may have signed Adams’ interim custody order.

Having written on the Adams’ case after the judgment, he chose to pursue the matter with Reed. The latter had not been involved, but he volunteered that Kerr wrote the judgment: “From what you say, it sounds like a wayward judgment, in which case it will be put right in another case.”

Adams is due compensation for his unlawful detention, wrongful convictions and false imprisonment. Other IRA members (including one who helped Adams escape), equally aggrieved that the Secretary of State did not personally detain them, will be crawling through the lawfare tunnels on their next operation.

Reed spoke extra-judicially on March 17 2021, but surely even the Northern Ireland Office will get the message. Will government lawyers now set out to deny Adams a penny?

Will they fight any following cases all the way to the Supreme Court, and ask it to overturn Kerr’s decision?

Last word: Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett (the Lord Chief Justice) all agreed with Kerr in 2020. Lady Black retired recently. The other three remain in post. Clearly, cleaning up this judicial mess will not be easy.

Reed could have suggested the following reform to the constitution committee: back in the 1960s and 1970s, the senior law lord (Lord Reid, different spelling but another Scot) required each judge to produce his (in those days) own judgment. Perhaps such a practice, burdensome though it would be, would prevent four justices silently giving one of their colleagues a clear run on his/her special interest.

Austen Morgan: Is Buckland letting the judges set the pace on reform?

31 Mar

Dr Austen Morgan is a barrister at 33 Bedford Row chambers and was one of the UUP’s lead negotiators for the Belfast Agreement.

On March 18 2021, something unusual happened in Whitehall. It involved Lord Faulks QC, a former Conservative minister; Robert Buckland QC MP, the Lord Chancellor; and the Ministry of Justice (in the former Home Office building) on Petty France.

That day, the Lord Chancellor published The Independent Review of Administrative Law (195 pages), which had been chaired remotely by Lord Faulks. Simultaneously, the Ministry of Justice responded with Judicial Review Reform (56 pages), sending its own additional proposals – especially ouster clauses (excluding the courts) and remedies – out to consultation (with the public to respond by April 29 2021).

Normally, governments cherry pick recommendations made by committees, and take their time. Here, the Government had to fatten up Lord Faulks’s meagre offerings before expiry. What on earth was going on?

Think back to November 2019 – before Covid-19 and the depletion of the nation’s finances – to the Conservatives’ manifesto. There, Boris Johnson had promised a constitution, democracy and rights commission. Bliss it was in that dawn to be alive.

Rights went back to David Cameron in 2006, and his idea (on which I advised) of a UK bill of rights. Democracy was a reference to the 2016 Brexit referendum. And constitution was a new idea, trailed first by Geoffrey Cox QC MP as attorney general, the day after Miller Two in the Supreme Court (September 25 2019) – the prorogation of parliament case which the Government lost badly.

On Christmas eve, I began what became my lockdown book, now provisionally entitled Writing the UK Constitution: a contested project. It is basically a workbook for such a commission, an unprecedented promise in our political history. The contest is between traditional common lawyers, who believe the constitution exists (in their minds), and modernisers including myself, who believe the UK needs to get itself a written constitution. I therefore am an advocate of joined-up constitutional reform, though I accept there can be short- , medium- and long-term goals over two parliaments.

At some point (after Cox was replaced in February 2020), the Government quietly abandoned the idea of a constitution, democracy and rights commission. This was revealed by Paul Goodman in ConservativeHome on July 23 2020. Buckland confirmed as much to a select committee on December 8 2020.

On July 31 2020, the Faulks commission had been announced. Reform of judicial review – through which the courts supervise the legality of executive actions – was a totemic Conservative issue. The Lord Chancellor, however, appointed mainly professional lawyers. There is the explanation for no statutory codification of judicial review, into which safeguards could be built.

If Miller Two was judiciary one, executive nil, the Faulks report (pending the further consultation), makes the score now judiciary two, executive nil.

On December 1 2020, this time the Cabinet Office – there being a job share on the constitution by Buckland and Michael Gove – announced the forthcoming repeal of the Fixed-term Parliaments Act 2011. A draft bill included the non-justiciability of prerogative powers concerning parliament. The Government agreed to pre-legislative scrutiny, including by the House of Lords, where sits the informal lawyers’ and judges’ party on the cross benches. Could this be judiciary three, executive nil?

On December 7 2020, the Ministry of Justice (again) announced a review of the Human Rights Act 1998, another totemic Conservative issue. The chair was to be Sir Peter Gross, a retired court of appeal judge. The members of the review include academic lawyers. One hopes for an agreed UK bill of rights, but it could end up in coming months as: judiciary four, executive nil.

Speaking last week to a university audience, Buckland made a diplomatic stab at articulating the Government’s strategy: “it falls to me to propose reforms which, as far as possible, avoid drawing judges into the political realm and forcing them to adjudicate on moral and philosophical issues.” But what Lord Chancellor, if the judges – led by Baroness Hale – upset the so-called constitutional balance, as they arguably did in Miller Two?

Whitehall has a track record on constitutional reform in the 1990s, 2000s and 2010s, which should have been a warning from history for the current government in its early months.

The first Blair government (1997-2001) did enact: human rights; expulsion of hereditary peers; and devolution (which has turned out very different). Constitutional reform – it is rarely observed – was then replaced with public-sector reform led by number 10. The sacking of Lord Irvine of Lairg QC in 2003 led to the misnamed Constitutional Reform Act 2005, which gave us judicial appointments commissions to be stuffed with quangocrats.

Gordon Brown was – and is – more serious about constitutional reform, but Whitehall balkanized his ambitions in the form of the Constitutional Reform and Governance Act 2010. The Equality Act 2010 – a sectional project of Labour women ministers – was never a proper constitutional project concerning the state.

The coalition of 2010-15 divided over electoral reform and delayed boundary changes, and House of Lords reform (a project which has been staggering since 1918).

I hope, if there is life after recent deaths, that Johnson will return to the commission idea, and work towards the next general election in 2024.

My perspective is not, honestly, particular reforms: presidential (through the monarchy) and prime ministerial powers; a federal UK to save the union; separate legislatures; proportional representation.

My big idea is an expert report for ministers in this parliament, inspired by an Irish document of 1996. The objective would be a written constitution, to be enacted by parliament in the first instance. There are arguments against such an idea, especially the slogan flexibility versus rigidity.

The commission would comprise legal and non-legal constitutionalists. And they would provide reasons for and against particular provisions, and how practical ideas could work one with another. Advisers advise, ministers decide, and the people or peoples – after 2016 – should vote decisively on the rules of the state.