Professor Richard Ekins and Sir Stephen Laws have detailed why they think the UK’s most senior court got the decision so wrong as to pose a “serious challenge to the ordinary functioning of government”.
The Supreme Court found that the former Sinn Fein president had not been legally interned in 1973, because his detention had not been signed by the then secretary of state William Whitelaw. Therefore his convictions for trying to escape were not valid, the judges said.
But the two academics, in a paper for the influential London think-tank Policy Exchange, note that the ruling “opens the door for Adams, and for others, to bring” compensation claims.
In a highly unusual development, the pair’s blunt assessment of the Supreme Court ruling has been endorsed by a former head of the civil service in the UK, Lord Butler, and by a former attorney general, Geoffrey Cox QC.
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Lord Butler said the ruling “needs to be overturned by urgent legislation, as the authors of the paper recommend”.
In an article that summarises the paper, republished inside today’s News Letter (print edition, and also in online link below), Dr Ekins, professor of law at Oxford University, says that the Supreme Court ruling, by the former lord chief justice of NI Lord Kerr and four other judges, fails to take account of the ‘Carltona principle’ that allows delegation of an order.
The long-standing precedent means “when Parliament confers power on a secretary of state, the power may be lawfully exercised by those for whom he has responsibility”.
Prof Ekins, in a summary of his Policy Exchange document that was first written for the website Conservativehome.com, writes: “Lord Kerr’s judgment ... cannot be right.”
He continues: “It opens the door for Adams and others to seek compensation for false imprisonment or breach of the ECHR right to liberty. The government may have to pay considerable sums to those detained for suspected involvement in terrorism.
“This is not a good state of affairs. The government should act swiftly, proposing legislation to make clear that ICOs made by a minister of state or under secretary of state were lawful. This would reverse the effect of the Supreme Court’s judgment, but would not remove from Adams any order that he won from the court itself.”
Sir Stephen was formerly the permanent secretary in the Cabinet Office responsible for the Office of the Parliamentary Counsel. The joint paper will be closely read in Whitehall, where Policy Exchange is respected by the government, and where the Supreme Court ruling is said to have caused shockwaves.
The News Letter has covered local outrage at the ruling (see below), with Trevor Ringland saying that it is another example of courts reshaping the legacy of terror, and calling for a police team to examine the role of IRA leaders in violence.
Jeff Dudgeon, who won a Strasbourg ruling against the UK in the 1970s that led to decriminalisation of homosexuality, said the Supreme Court did not pay enough heed to the context of internment, amid near civil war.
• Prof Ekins: A summary of the Policy Exchange paper
• Jeffrey Dudgeon: Supreme Court ruling on Adams didn’t reflect violent context of the time
• Kenny Donaldson: Victims of terrorism are dismayed by the Supreme Court ruling on Adams