My Lords, I support the amendments, but mention has been made of the Supreme Court judgment in R v Adams [2020] UKSC 19, which caused the difficulties that these amendments are designed to address.
On 26 June, on Report, my noble friend Lord Faulks referred to Policy Exchange as having
“consistently and cogently argued that the decision flew in the face of the well-established Carltona doctrine”.
That has been explained as the doctrine that the powers of the Secretary of State may be exercised on their behalf by junior Ministers or officials. My noble friend Lord Butler of Brockwell expressed concern that the Carltona judgment
“has been thrown into doubt by this judgment”,
which he described as “this very extraordinary ruling”. The noble Lord, Lord Howell of Guildford, said that he was
“astonished, frankly, that such a legal error could have been made”.—[Official Report, 26/6/23; cols. 502-6.]
The judgment of the five judges of the Supreme Court was given by the late Lord Kerr of Tonaghmore, a distinguished and much-respected jurist. In his judgment, Lord Kerr recognised the role and importance of the Carltona principle. His reasoning was that the principle did not apply in the Gerry Adams case, because of the specific wording of the relevant statutory provision, which expressly distinguished between the making of the detention order and the signing of the order. The statutory provision said that the order could be signed by the Secretary of State, a Minister of State or an Under-Secretary of State. Lord Kerr’s conclusion was that the distinction expressly drawn in the statutory provision between the making and the signing of the order necessarily meant that only the Secretary of State could make the order.
My point is that it is simply wrong to accuse Lord Kerr of ignoring the Carltona principle or throwing it into doubt. The judgment, whether or not you agree with it—different views are, of course, permissible—was based on an analysis of the express terms of the relevant statutory provision. I am concerned that this House should not unfairly impugn the reputation—the well-deserved, high reputation—of the late Lord Kerr.
If I understood the Minister’s opening remarks correctly, he said that the amendment restores the legal position, as it had been widely understood by Ministers, prior to the Supreme Court judgment. With respect, that is not quite right, because Lord Kerr’s judgment refers to the legal advice that was given to the Attorney-General in July 1974 by JBE Hutton QC, later Lord Hutton of Bresagh. Mr Hutton, as he then was, advised Ministers through the Attorney-General. I quote from paragraph 6 of the judgment of Lord Kerr that
“a court would probably hold that it would be a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally”.
I repeat: I support the amendment, but I hope it is appropriate to put those matters on record.
5 pm