Top judge says the law is now in a ‘mess’ after his former colleagues quashed Gerry Adams’ convictions

The government has come under fresh pressure to intervene over the Gerry Adams court ruling, after further devastating criticism of the verdict.

Wednesday, 15th July 2020, 7:30 am
Updated Wednesday, 15th July 2020, 2:21 pm
Lord Kerr, a former lord chief justice of Northern Ireland who was later elevated to the Supreme Court, front left, issued the court's unanimous ruling that quashed the convictions of Gerry Adams. His judgment has been fiercely criticised by a range of prominent public figures, now including the former Supreme Court judge Lord Sumption, back right, who has since retired. The two judges are seen alongside other members of the UK's highest court, including Lady Hale, its president, who has also since retired

Lord Sumption, who served on the Supreme Court until 2018, has issued a devastating assessment of his former judicial colleagues, who quashed Mr Adams’ 1970s convictions.

The retired judge, one of Britain’s most respected legal voices, said that the UK’s highest court has left “the law in a shapeless mess,” and opened the door to “countless” claims for damages.

Lord Sumption was implicitly scathing of Lord Kerr, a former lord chief justice of Northern Ireland who was late elevated to the highest court, and in whose name the Supreme Court ruling was issued.

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An undated picture, thought to be early 1970s, of Gerry Adams (centre) in Belfast, acting as a member of the guard of honour at the funeral of an IRA member. Adams was interned twice, and later convicted for twice attempting to escape. In May 2020, the UK Supreme Court ruled his internment unlawful, and so quashed his convictions for attempted escape. Photo: PA Wire

“The law cannot remain in the state in which Lord Kerr and his colleagues have left it,” Lord Sumption said.

It is the latest denunciation of the judgment in May, in which the Supreme Court said that Mr Adams’ internment in 1973 had not been considered by the then Northern Ireland secretary, William Whitelaw and thus was unlawful.

This meant that the former Sinn Féin president won his appeal to overturn two convictions for attempting to escape the Maze internment camp.

The ruling caused astonishment across the political and legal worlds, because legislation that brought in internment, as terrorist violence in Northern Ireland was escalating in the early 1970s, specifically allowed for detention to be signed by a junior minister.

David Howell with Willie Whitelaw at Stormont Castle in 1973. The Supreme Court overturned the convictions of Gerry Adams because Mr Whitelaw did not sign off his internment and so he was seen to have been unlawfully detained. Lord Howell said of the ruling: "The fundamental failure of the Supreme Court’s judgment is its total misunderstanding of the nature of ministerial and departmental government and methods of operating"

The Supreme Court over-turned a previous unanimous ruling of the Northern Ireland Appeal Court, led by Sir Declan Morgan, rejecting the Adams bid to have his convictions quashed.

After the top court’s ruling in May, dozens of internees are said to be planning to sue over their detention.

Last month a former government minister in Northern Ireland at the time of Mr Adams’ internment flatly contradicted the reasoning of the UK’s highest court in the case (see link below).

Lord Howell, who as David Howell was junior to Mr Whitelaw in 1973, called for an urgent change in the law to make clear the plain intention of Parliament when it legalised internment.

Lord Butler of Brockwell, former cabinet secretary and head of the home civil service. He said the Gerry Adams ruling “needs to be overturned by urgent legislation"

The former head of the civil service Lord Butler and the legal experts Professor Richard Ekins (see link below) and Sir Stephen Laws have called for the same.

The case is controversial because Article 4 of the Detention of Terrorist (Northern Ireland) Order 1972 provided that a custody order must be signed by a secretary of state or junior minister.

Lord Sumption, writing in The Times, has criticised his former Supreme Court colleagues Lord Kerr and four fellow judges, when they reasoned that Article 4 made clear that Parliament intended to require the secretary of state’s personal involvement in each internment order.

Lord Sumption said: “This, thought Lord Kerr of Tonaghmore, who delivered the only judgment, meant that the secretary of state must consider the order, while the signature could be that of any other designated person.

Richard Ekins is head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford. He wrote of the Gerry Adams judgment: "This is an important propaganda victory for critics of the record of Her Majesty’s Government in endeavouring to maintain peace and order in Northern Ireland"

“This is bizarre. It means that the only purpose of allowing so august a person as a minister of state or an undersecretary to sign was to spare the secretary of state the labour of applying his pen to the document once he had considered it.”

This interpretation shattered the Carltona principle, that a minister’s powers can be exercised by his officials.

“The business of government is too vast to be conducted on any other basis, and has been for at least a century and a half,” wrote Lord Sumption.

Noting that only Parliament is a higher authority than the Supreme Court, the lord said that the court’s “decisions should be clear” and that it should “reflect a sound understanding of how the world in general and the government in particular, works”.

Yet in the Gerry Adams verdict “its ambit is unclear and its reasoning unworldly, cursory and obscure. For a court of final appeal, there is no greater sin than this”.

Lord Sumption also dismissed the argument that interning someone was so momentous a step as to require a cabinet minister’s personal involvement each time. “Most governmental decisions are momentous to someone,” he wrote. “Momentousness is not a coherent legal principle.”

Lord Kerr of Tonaghmore, a justice of the Supreme Court of the UK who was formerly lord chief justice of Northern Ireland. Photo: Supreme Court

He said that the impact of the Supreme Court ruling is “bad enough” for future government decisions which cannot all receive the attention of a secretary of state, let alone the “hundreds of thousands” of past decisions by junior ministers that could now be subject to judicial review.

Acknowledging that changing the law to mitigate the impact of the Gerry Adams ruling will not be easy, having human rights implications, he thinks that the judgment is so flawed that “these difficulties will have to be overcome”.

Professor Ekins, who has a chair in constitutional law at the University of Oxford, in May wrote a paper for the think tank Policy Exchange, in which he said: “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 [custody orders] 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.”

• Other reactions to the Supreme Court ruling below

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Alistair Bushe