Gerry Adams’ victory in obtaining a Supreme Court ruling against the legality of his detention without trial followed by his escape from the Maze in 1975 has produced serious opposition within the establishment. The ruling rests on a technicality with potentially wide implications, that the interim custody order made against him hadn’t been signed personally by the secretary of state Willie Whitelaw. To a lay person this ruling seems more than slightly bonkers; but its defenders will argue that the observation of strict process provides protection against the abuse of power.
The think tank Policy Exchange campaigns against what it calls “ judicial activism “ encroaching on the powers of Parliament. In a new report it declares that Lord Kerr’s decision was simply wrong on the technical argument and should be corrected as soon as possible by legislation. The same authors condemned the Supreme Court’s historic ruling that the prorogation or suspension of Parliament was unlawful. This view has considerable support within the party and government and there is much talk about clipping the Court’s wings. The Adams ruling is another stick to beat the Court with.
Policy Exchange provides legal and other authority for these opinions. They extend to Adams’ next option, which is to appeal to the European Court of Human Rights for a ruling in favour of compensation. Many Conservatives argue that the right of appeal should be curtailed and if necessary abolished. If pursued by zealots such as the Attorney General Suella Braverman this is has implications for all sorts of human rights issues on both sides of the water including those governed by the Good Friday Agreement.
Another aspect of the Tory campaign against “vexatious” cases against the Army abroad (not applying to Northern Ireland) was reaching conclusion today, when all but one case among thousands against British soldiers during the Iraq war and occupation were dropped.
Policy Exchange’s argument against the Supreme Court ruling has the powerful endorsement not only of the former Attorney General Geoffrey Cox ( he of the booming voice) but of the arch mandarin Robin Butler, the senior surviving cabinet secretary. Butler is damning in his criticism of the Supreme Court’s ruling.
The consequences of the Supreme Court judgment in allowing Gerry Adams’ appeal against his conviction for attempting to escape from lawful custody almost 45 years ago are potentially very damaging… it is quite clear to me that the intention of the legislator in making the Detention of Terrorists (Northern Ireland) Order 1972 was to permit a Secretary of State, Minister of State or an Under Secretary of State to authorise temporary detention. Personal consideration by the Secretary of State for Northern Ireland was not required…. had the legislator intended to require personal consideration by the Secretary of State for Northern Ireland it would surely have done so expressly.
The Supreme Court’s ruling invites Gerry Adams and many others who were detained between 1972 and 1974 to seek damages. In a time of national economic crisis, few can welcome the prospect that the government might now be obliged to pay substantial damages to Mr Adams and to others detained during that period. Just as worrying are the judgment’s political costs. The Supreme Court has given force to those who would say that the British government acted without regard to the law in 1972. Even if the Supreme Court judgment were correct, I am convinced that this is not the case. At the very most this is a technicality
The path of least resistance, especially for a government facing other challenges, might be simply to hope that the Supreme Court’s judgment proves less damaging in practice than is now to be feared. This paper makes clear that neither the government nor Parliament can safely make that assumption. I am persuaded that the judgment needs to be overturned by urgent legislation, as the authors of the paper recommend.
The Supreme Court’s reading of the 1972 Order is mistaken. Properly interpreted, the Order did authorise Ministers of State to exercise the Secretary of State’s power to detain, and Parliament, when approving the Order, was informed by the Attorney General in person that the power to make an ICO was exercisable by all those authorised to sign an Interim Custody Order : a Secretary of State, a Minister of State, or an Undersecretary of State… he principle is fundamental to the workings of government.. This is exemplified by any number of statutory authorisations from, at latest, the nineteenth century.
The Supreme Court’s judgment has major implications. It is obviously a major propaganda victory for Gerry Adams and for others who opposed the actions Her Majesty’s Government took to restore peace and maintain order in Northern Ireland after 30 March 1972. However, more importantly, it puts in doubt possibly hundreds of detentions, as well as related convictions, and exposes the government to the risk – or certainty – of numerous legal proceedings for false imprisonment, to which it will have no defence. It also invites proceedings before the Strasbourg Court, for breach of Article 5 of the European Convention on Human Rights (the right to liberty), alleging that the unlawfulness of the detention is a reason for that Court to revise its important 1978 ruling that the UK’s derogation from the ECHR, including Article 5, was properly made.
… Even if the government must now be taken to have failed in its own Order to make clear what it obviously actually intended, the unlawfulness that resulted was clearly at most the result of a technical error made in good faith, and is very different in kind from the paradigm cases of unlawful arrest or detention.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London