Letter: It is time to quash the wayward Supreme Court ruling on Gerry Adams, that has led to him being eligible for damages

(Scroll all the way down for further links that reflect the outrage on the Gerry Adams ruling, both yesterday and in 2020 when the Supreme Court quashed his conviction:)

The decision by Mr Justice Colton in the High Court to quash the Northern Ireland Office (NIO) decision not to provide compensation to Gerry Adams for imprisonment in the 1970s was no surprise. It has its origins in a flawed decision by the Supreme Court in May 2020, that threatens to make the handling of the legacy of the Troubles even more fraught and unfair than it already is. The ruling was critical of the process by which some people such as Mr Adams were interned after 1971, as the Troubles were worsening. It was a poor judgment, written by a former lord chief justice of Northern Ireland, Lord Kerr, which took no account of the circumstances in 1973 when the conflict was at its height.

Lord Kerr found that the then secretary of state, William Whitelaw, 'did not consider' (or more accurately 'did not sign') the Interim Custody Order in question. But this was at a time when a duty minister in Belfast had regularly to stand in for Mr Whitelaw, who was travelling back and forth from London.

The judge said yesterday: “The applicant has been convicted of a criminal offence, his conviction has been reversed in circumstances where a newly discovered fact (the lack of consideration by the Secretary of State) shows beyond reasonable doubt that there has been a miscarriage of justice, that is the applicant is innocent of the crime for which he was convicted.”

We do not know if Mr Whitelaw ‘considered’ the matter or simply let David Howell, a junior NIO minister in Belfast, sign the detention order. However, the background facts were perfectly plain given that Mr Whitelaw had negotiated in Cheyne Walk in Chelsea the previous year with an IRA delegation which included Mr Adams. The issue of a junior minister approving the detention was not “a newly discovered fact” in the case, but simply a late legal interpretation of the process of interning people.

If a miscarriage therefore resulted, it was a technical one and the NIO should pay only nominal damages given the hurt and destruction caused by the IRA whose campaign was endorsed by Sinn Fein. Lord Kerr made a somewhat similar Supreme Court decision in relation to a Pat Finucane inquiry but then did recognise the problem of the passage of time, declaring the state could decide on the type of inquiry “if indeed any is now feasible”. He should have been consistent when it came to reversing 50-year-old decisions where the decision-maker is long gone and the paperwork largely absent.

The Kerr judgment demolished a longstanding doctrine ('Carltona') that junior ministers or officials can substitute for a secretary of state. The government has chosen, despite legislative opportunities, not to correct the position and restate Carltona in law. We must await the promise of the Supreme Court reversing Kerr. Lord Howell of Guildford, as he now is, having maybe signed the Adams detention, pursued the matter with the Supreme Court president, Lord Reed, at a House of Lords hearing in 2021. The latter had not been involved, but he volunteered that Lord 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.”

Wayward it was. It too needs quashed.

Jeffrey Dudgeon, Convenor of the Malone House Group, which challenges the anti security forces imbalance on legacy, and UUP council candidate for Botanic

Victims will be sickened by compensation for Gerry Adams

Editorial: The ruling that Gerry Adams must get damages illustrates the legacy scandal

From 2020 (see within it links to other reaction then): Top judge says law in a mess after his ex colleagues quashed Gerry Adams’ convictions

2020: Adams ruling walked on graves of judges murdered by the IRA, says Trevor Ringland

2020: Doug Beattie – Time has come for an inquiry into Sinn Fein, and their relationships with the IRA

2020: Lord Howell – After the Gerry Adams ruling, Parliament must act to reaffirm its clear, obvious and original intention on internment orders

2020: Oxford professor – The Supreme Court ruling on Gerry Adams poses a very serious challenge to the ordinary functioning of government

2020: Brian John Spencer – If we are to stop the rewriting of history, we need to say what IRA did during internment