Adams succeeds in UK Supreme Court on Carltona point.

R v Adams [2020] UKSC 19 will be of interest to administrative lawyers here and in neighbouring jurisdictions as a rare case where the Carltona doctrine was held not to apply to an order made by a civil servant (or, in this instance, a minister of state) on behalf of a government minister. The doctrine takes it name from Carltona Ltd v Commissioners of Works [1943] 2 All E.R. 560, a decision of the English Court of Appeal during the Second World War. It involved a challenge to the seizure of a factory, an action which the Commissioners (in effect the Minister of Works and Planning) were permitted to take. However, the decision in that case was taken by a senior civil servant within the Minister’s department. The Court of Appeal (per Lord Greeene MR), in a now famous passage, held that this was quite in order because the “duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case.”

Carltona has been enthusiastically adopted in Ireland, and applied in many cases especially in the area of immigration and asylum law. A trilogy of Supreme Court decisions – Tang v Minister for Justice [1996] 2 ILRM 46, Devanney v Shields [1998] 1 I.R. 230 and WAT v Minister of Justice [2015] 2 ILRM 225 – secured its position as a “common law constitutional principle” (as it was described in Devanney, quoting from an English case). Here, as in England and Wales, it is “capable of being negatived or confined by express statutory provision to the contrary, or by necessary implication” (WAT). The underlying theory is that a minister, as a corporation sole, consists in effect of the department of which he or she has charge. Ministers remain responsible to Parliament for all decisions taken in their names and, for that reason, they are likely to ensure that important decisions are taken by officials of an appropriate level of seniority and experience. Statutes routinely provide that certain decisions must be taken by “the Minister”, but in many instances the sheer volume of those decisions renders it impossible for the minister to make all of them personally. WAT, for example, concerned s. 3 of the Immigration Act 1999 which provided that, subject to non-refoulment, the Minister for Justice and Equality could order the deportation of a non-national from the State. The order in WAT was signed by a senior civil servant, but the Supreme Court found this acceptable because Carltona applied. It noted that in 2011, the year in which the order was made, a total of 1,334 deportation decisions were made. Civil servants in these circumstances are exercising devolved as opposed to delegated functions, as the Supreme Court has held on a few occasions.

Back in 1973, Gerry Adams was interned in Northern Ireland on foot of an interim custody order (ICO) signed by a Minister of State in the Northern Ireland Office. He tried to escape on two occasions. Having been convicted in respect of each attempt, he was sentenced in 1975 to a total of four-and-a-half years’ imprisonment. This case involved a belated challenge to these convictions which he undertook after certain information became available under the “30-year rule” (relating to the public release of government documents). The legislation under which Mr Adams was interned provided that “where it appears to the Secretary of State” that a person was suspected of being involved in terrorism, an ICO could be made. Once made, it could be signed by a Secretary of State, a Minister of State or an Under Secretary of State. In this instance, there was no evidence that the Secretary of State had personally considered if Mr Adams was suspected of being involved in terrorism. At the time, the Secretary of State was Willie Whitelaw who apparently did not take these decisions himself although his successor, Merlyn Rees, apparently did. In 1974, a counsel’s opinion to the Attorney General had indicated that a court would probably hold that it was a condition precedent to the making of a valid ICO that the Secretary of State had considered the matter personally. This opinion became available under the 30-year rule and it happened to be authored by Brian Hutton QC who later became Lord Chief Justice of Northern Ireland and, after that again, a Law Lord (from 1997 to 2004).

Almost half a century later, Mr Hutton (as he then was) was proved right when the UK Supreme Court held that the ICO was invalid, as it had not been made by the Secretary of State. Consequently, Mr Adams, having been unlawfully interned, was wrongly convicted of attempting to escape, and his convictions for those offences were quashed. The judgment, which is remarkably concise, was delivered on 13 May 2020 by Lord Kerr with whom the other four members of the Court agreed. The Supreme Court was unwilling to accept that there is any general presumption that Carltona applies to ministerial decisions absent a clear indication to the contrary. Instead, regard must be had to three factors: the framework of the legislation, the language of the relevant provisions and the importance of the subject matter. It then proceeded to examine the provisions of the Northern Ireland internment legislation (which was in the form of an Order) in this light. Crucial to its decision was the wording of two successive sub-articles in the Order, the first providing that the Secretary of State could make an ICO where it appeared to him that a person was suspected of being involved in terrorism. The second provided: “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.” This, according to the Court, involved a “distinct segregation of roles” (between the making and signing of an ICO). Further, it was clear that the ICO to be signed was that of the Secretary of State. The Court concluded: “If a minister of state made the ICO and then signed it, could he be said to sign the order of the Secretary of State? Surely not.” The Court felt fortified in its conclusion by two additional factors (which have also arisen on other Carltona-type cases). First, it noted the seriousness of the matter at stake. The legislation in question gave the Secretary of State the task of deciding if an individual should be left at liberty or committed to custody, perhaps indefinitely. Secondly, there was no reason to believe that requiring the Secretary of State to make each decision personally would impose an impossible burden upon him.

One cannot help wondering if Devanney v Shields [1998] 1 I.R. 230 might have been decided differently if the Irish Supreme Court had adopted the same approach as its UK counterpart in Adams. Devanney involved a challenge to the legality of the appointment and assignment of a District Court clerk. Such appointments were then governed by s. 46(2) of the Court Officers Act 1926 which provided:

“Subject to the provisions of this section, every district court clerk shall be appointed by the Minister and shall (unless he is a pensionable officer) hold office at the will of and may be removed by the Minister.”

District Court clerks are now appointed by the Courts Service. It was accepted that the District Court clerk in this case had not been appointed by the Minister personally ([1998] 1 I.R. 230 at 252). The documents appointing her and assigning her to specified District Court areas had been signed by civil servants who stated that they were authorised in that behalf by the Minister. In the High Court, McCracken J. held that Carltona did not apply in this case. He said that it was perfectly practical for the Minister to make such a decision personally, given the small number of appointments involved and their considerable importance to the administration of justice. He accepted that preliminary procedures relating, for example, to the interviewing of applicants could be left to others. McCracken J. further said:

I am also influenced by the fact that District Court clerks are not only appointed by the Minister, but hold office at the will of and may be removed by the Minister. If the [State] respondents’ argument is correct, the [District Court clerk] could be removed by the same persons who appointed her, again without any input from or knowledge of the Minister.”

He therefore granted a declaration to the effect that the District Court clerk was not validly appointed by the Minister. It should be stressed that there was never any question raised about the competence or qualifications of the District Court clerk in question who was already an experienced civil servant. The challenge related solely to the appointment procedure.

The Supreme Court disagreed with McCracken J. and allowed the State’s appeal. Hamilton C.J. delivered the main judgment, with concurring judgments from Denham and Keane JJ. Both Hamilton C.J. and Denham J. stressed Carltona’s status as a common law constitutional principle. The Court was satisfied that the doctrine applied here and that the appointment of the District Court clerk was therefore entirely valid. As to the importance of the matter at stake, Hamilton C.J. said that it was no more important than decisions allocated to the Minister for Justice under the Aliens Act 1935 (the issue in Tang where Carltona had also been held to apply).

What is missing from the Supreme Court judgment in Devanney is a close textual analysis of s. 46 of the 1926 Act, especially in light of the question raised by McCracken J. as to whether a civil servant, if authorised to appoint a person as District Court clerk, could also remove that person. The Supreme Court failed to grapple with this question or, indeed, to address it at all. If the UK Supreme Court judgment in Adams is adopted here with the same alacrity as Carltona, it may prompt closer attention to the three interpretive factors outlined in Adams, especially the framework of the legislation and the precise language of the relevant provisions.

Returning finally to Adams itself, the judgment, as noted, was delivered by Lord Kerr who, like Lord Hutton, had once been Lord Chief Justice of Northern Ireland. Lord Kerr is due to retire in a few months time, and this is to be regretted. He never hesitated to strike out in a new direction when he saw the need to do so. For instance, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10 (which dealt with providing assistance to the United States to facilitate the prosecution of a person for crimes some of which were punishable with the death penalty), he said that “a common law principle should now be recognised that it is unlawful to facilitate the provision of material to be used in the trial of a person in a foreign country where there is a risk that, as a result of those proceedings, that person would be at risk of execution.” He failed to secure the backing of a majority of the Court on that point. But the entire Court agreed that, under data protection legislation, it was unlawful for the Secretary of State to have provided the assistance in question (which involved personal information) to foreign law enforcement authorities for use in capital proceedings.

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