The Supreme Court held that an interim custody order made for the appellant in 1973 was invalid because the Secretary of State had not personally decided that he was suspected of involvement in terrorism. A Minister of State could sign such an order, but could not make it. The appellant had therefore not been in lawful custody, and his convictions for attempting to escape had to be quashed.
From 1922, legislation authorised detention without trial in Northern Ireland, commonly called internment. It was last introduced on 9 August 1971. An interim custody order was made where the Secretary of State considered that a person was involved in terrorism. The person was taken into custody and had to be released within 28 days unless the Chief Constable referred the case to a commissioner. Detention continued while the commissioner considered it. If satisfied of involvement in terrorism, the commissioner made a detention order; otherwise, release was ordered.
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An interim custody order was made for the appellant on 21 July 1973 and signed by a Minister of State in the Northern Ireland Office. An Assistant Chief Constable referred the case to a commissioner on 10 August 1973, and the commissioner decided that detention should continue. The appellant tried to escape on 24 December 1973. On 20 March 1975 he was convicted of attempting to escape from lawful custody and sentenced to 18 months’ imprisonment. After a further attempt on 27 July 1974, he received a consecutive sentence of three years on 18 April 1975.
How the appeal arose
The appeal concerned the validity of the 1973 order. Although it could be signed by a Secretary of State, a Minister of State or an Under Secretary of State, the power to make it arose only where it appeared to the Secretary of State that the person was suspected of involvement in terrorism. There was no evidence that the Secretary of State had personally considered the appellant’s case. Both sides proceeded on the assumption that he had not.
A legal opinion released under the thirty-year rule drew attention to whether the Secretary of State had to consider the detention personally. This prompted the challenge to the convictions.
On 14 February 2018 the Northern Ireland Court of Appeal, consisting of Morgan LCJ, Sir Ronald Weatherup and Sir Reginald Weir, unanimously dismissed the appeal. It refused permission to appeal further, but certified whether article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 required the Secretary of State’s personal consideration or whether the Carltona principle allowed a Minister of State to make the order.
Could a junior minister decide?
The Carltona principle, drawn from Carltona Ltd v Comrs of Works, is that powers conferred on ministers are normally exercised by responsible officials for whom the minister remains constitutionally responsible. Government business would otherwise be impossible. The Court of Appeal considered that later cases had reinforced the principle and that the seriousness of a decision, although relevant, did not by itself require the minister to act personally.
Lord Kerr, with whom Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett agreed, accepted that the gravity of the consequences is relevant. He considered Brightman J wrong in In re Golden Chemicals Products Ltd to the extent that he treated seriousness as legally irrelevant. Lord Kerr nevertheless regarded other features of this legislation as more important.
In Oladehinde, Carltona applied to notices of intention to deport because the Immigration Act 1971 expressly restricted delegation in some provisions but not in the provision concerned. In Doody, junior ministers could fix tariff periods for life prisoners: the Criminal Justice Act 1967 did not expressly or impliedly require a personal decision, and personal consideration of every case would have been a substantial burden. In 1990 alone, 274 mandatory life-sentence cases were considered.
The evidence did not establish that personal consideration of these orders would have been impracticable. A later Secretary of State had in fact considered each order personally.
Lord Kerr also distinguished Northern Irish cases, including Harper and McCafferty’s Application, in which decisions affecting liberty had been devolved to junior ministers. Those statutes contained nothing from which a restriction could be implied. He did not finally decide whether the law presumes that Parliament intends Carltona to apply unless it says otherwise. His provisional view was that the statute’s structure, language and the gravity of the consequences should be examined without such a presumption. Any presumption would in any event have been displaced here.
The division between making and signing
Article 4(1) provides that, where it appears to the Secretary of State that a person is suspected of having been concerned in the commission or attempted commission of any act of terrorism, or in the direction, organisation or training of persons for the purpose of terrorism, the Secretary of State may make an interim custody order for that person’s temporary detention. Lord Kerr regarded this language as clear: absent Carltona, the Secretary of State alone had to consider the suspicion and could alone make the order.
Article 4(2) separately provides that 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. Lord Kerr treated the separation of making and signing as deliberate. Had Carltona been intended, there was no obvious reason to give the functions discrete treatment. The description of the signed order as the Secretary of State’s order also showed that it was personal to the Secretary of State, rather than an order any authorised signatory could make. A Minister of State who made and then signed an order would not be signing the Secretary of State’s order.
The power was momentous. It determined whether someone remained at liberty or was detained, possibly indefinitely and without trial. Unlike a prisoner whose tariff was fixed in Doody, the detainee had not first been convicted after due process. Lord Kerr treated that gravity as evidence of Parliament’s intention that the Secretary of State make the decision. There was also no reason, when the 1972 Order was enacted, to expect personal consideration to impose an impossible burden.
Parliamentary statements
The appellant sought to rely on statements in Parliament under Pepper v Hart. Such material may be considered only where legislation is ambiguous, obscure or absurd, and a minister or promoter of the Bill has made a clear statement. The Court of Appeal held that those conditions were not met and regarded the statements as contradictory. Lord Kerr agreed that article 4 was neither ambiguous nor obscure, although he read it as requiring personal consideration rather than as applying Carltona. He also held that the statements lacked the required certainty and were inadmissible.
Verdict: The Supreme Court unanimously allowed the appeal. Under the 1972 Order the Secretary of State had to make the detention decision personally. The interim custody order was invalid and both convictions for attempting to escape from lawful custody were quashed.
