Follow us

In R v Adams [2020] UKSC 19 the Supreme Court considered the nature and application of the principle established in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560: where Parliament specifies that a decision is to be taken by a particular Minister, that decision may be taken by an appropriate person on their behalf.

Key points

  • It is possible to challenge decisions on the basis that they have been unlawfully delegated, including where the relevant provision specifies that a decision must be taken by a particular Minister.
  • Whether a statutory power must be exercised by a specified Minister personally should be approached as a matter of statutory interpretation, rather than the application of a presumption in law.
  • Factors relevant to that approach will include the language and framework of the legislation in question, the gravity of the consequences flowing from the exercise of the power and the practicality of the Minister exercising that power personally.

Background

In the 1970s former Sinn Féin President Gerry Adams was twice convicted for attempting to escape from lawful custody. He had been imprisoned under an interim custody order (“ICO”) made in 1973. Under the applicable legislation, the statutory power to make an ICO arose “where it appears to the Secretary of State” that a person was suspected of being involved in terrorism.

Decades later, in 2009, Mr Adams became aware of an opinion given in 1974 by the legal adviser to the Attorney General. That opinion concluded that a court would likely hold it to be a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally. There being no evidence that he had done so, Mr Adams sought to quash his convictions for attempting to escape on the basis that the ICO for his detention had unlawfully been made by a junior Minister.

Mr Adams obtained an extension of time to appeal against his convictions, though his challenge was initially unsuccessful in the Northern Ireland Court of Appeal, which unanimously dismissed the claim. The Court of Appeal nonetheless certified the question of whether the making of an ICO under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (the “1972 Order”) required the personal consideration of the Secretary of State as one of general public importance – a question that fell to the Supreme Court to decide.

Judgment

In a unanimous judgment, delivered by Lord Kerr, the Supreme Court held that the Carltona principle did not apply on the particular facts and that the Secretary of State was required personally to consider the making of an ICO under the 1972 Order. As he had failed to do so, the ICO for Mr Adams’ detention was held to be unlawful and his convictions were quashed.

The court’s decision turned on its assessment of both the nature of the Carltona principle and the factors determining when it applies. The court acknowledged that, though a statutory provision may state that a particular power is to be exercised by a specified Minister, in Carltona the Court of Appeal had found that not every such exercise must – or, in practice, could – be carried out by that Minister personally. Often, civil servants or more junior Ministers can exercise such powers on the specified Minister’s behalf notwithstanding the absence of express wording to that effect in the relevant legislation.

The judgment demonstrates that there is some debate as to whether the Carltona principle amounts to a presumption in law or simply an insight into Parliament’s likely intention in respect of a particular statutory power. However in circumstances where the court held that the clear wording of the 1972 Order meant that it did not apply in this case, the court considered it unnecessary to reach a “firm conclusion” as to the nature of the principle. Nevertheless, it is clear that the court favoured approaching its application as a “matter of textual analysis, unencumbered by the application of a presumption”.

In line with this approach, the court undertook an “open-ended examination” of factors to determine whether the Carltona principle applied, including the framework of the legislation, the language of the relevant provisions and the gravity of the consequences flowing from the exercise of the power. In finding that Parliament had intended for the power to make an ICO under the 1972 Order to be exercised only by the Secretary of State, and not their junior Ministers, particular weight was given to two features of the wording of the Order. First, it distinguished the making of the ICO, to be carried out by the Secretary of State, from the signing of it, which could be done by the Secretary of State or their juniors. Second, it specified that the ICO was an order “of the Secretary of State”, before listing the various other Ministers capable of signing it.

The court supported its decision that the Carltona principle did not apply by reference to the gravity of the consequences flowing from the exercise of the power to make an ICO. It held that the 1972 Order gave “the Secretary of State the task of deciding whether an individual should remain at liberty or be kept in custody, quite possibly for an indefinite period”. The court considered that this factor “[provided] an insight into Parliament’s intention and that the intention was that such a crucial decision should be made by the Secretary of State”.

Finally, the court considered the practicality of the Secretary of State attending to the making of each ICO personally. It found that, at the time the 1972 Order was enacted, this would not have placed an “impossible burden” on the Secretary of State. This was taken as further support for the conclusion that Parliament had intended that the Secretary of State should personally have considered the making of each ICO.

Comment

Whilst the Supreme Court has not ruled conclusively on the nature of the Carltona principle, this decision nonetheless has significant implications for the lawful exercise of statutory power by Ministers. In doubting that there is a presumption that such powers may be exercised by others on a Minister’s behalf, the court has emphasised that the question of whether the Carltona principle applies should be determined by the proper interpretation of the legislation at hand. Going forwards, this decision may encourage those drafting legislation to specify more clearly whether decisions must be made personally by Ministers or whether they may be delegated. However in the meantime it may mean that there is heightened uncertainty – both for Government and for those affected by its decisions – in relation to whether decisions can be lawfully delegated. It will be important that close attention is paid to the underlying legislation, including by reference to the factors set out by the Supreme Court (the language and framework of the legislation in question, the gravity of the consequences flowing from the exercise of the power, and the practicality of the Minister exercising that power personally).

Andrew Lidbetter photo

Andrew Lidbetter

Consultant, London

Andrew Lidbetter
Nusrat Zar photo

Nusrat Zar

Partner, London

Nusrat Zar
Jasveer Randhawa photo

Jasveer Randhawa

Professional Support Consultant, London

Jasveer Randhawa
James Wood photo

James Wood

Partner, London

James Wood

Related categories

Key contacts

Andrew Lidbetter photo

Andrew Lidbetter

Consultant, London

Andrew Lidbetter
Nusrat Zar photo

Nusrat Zar

Partner, London

Nusrat Zar
Jasveer Randhawa photo

Jasveer Randhawa

Professional Support Consultant, London

Jasveer Randhawa
James Wood photo

James Wood

Partner, London

James Wood
Andrew Lidbetter Nusrat Zar Jasveer Randhawa James Wood