At last, something in the legal world to make champions of law-and-order and justice cheer.
Published: 11 July 2023
Despite the IRA losing the military battle against the security forces, brilliant apologists have been winners at lawfare. Underpinned by legal aid, assisted by the tendency of British judges and ministers to bend over backwards to be seen to be fair, aided by omerta and the fact that only the state kept records, anti-state litigators have been on a winning streak for years.
It’s no wonder that although most killings by security forces were legitimate. By one calculation a British serviceman is now 54 times more likely to be prosecuted for alleged Northern Ireland troubles crimes than a terrorist. But at last there’s been a successful fight-back. As a result of an amendment to the contentious Northern Ireland Troubles (Legacy and Reconciliation Bill), passed last week by the House of Lords, Gerry Adams, hundreds of his followers and various lawyers will not get another opportunity to sue the British government with taxpayers’ money.
The story begins in August 1971, when Adams was interned. It was early in a period of hideous violence. Lost Lives — that magnificent but heart-breaking record of Troubles-related deaths — tells us that in 1971, there were 180 killings, 107 attributed to republicans, 22 to loyalists and 46 to the security forces; in 1972, 497 (281, 121 and 86); in 1973, 263 (137, 90, 32). As always, civilians bore the brunt, and the security forces suffered far more than the paramilitaries.
In August 1971, internment was reintroduced to Northern Ireland under the Special Powers Act 1922, the very-much wanted Adams was captured in March 1972 and interned. The Provisional IRA had him released in June as part of their delegation to abortive secret talks in London with the Secretary of State William Whitelaw. He was re-arrested in July 1973 , interned and then sentenced to imprisonment for trying to escape from lawful custody.
Fast forward to May 2020 when Adams, an indefatigable litigator, had his appeal against his 1975 conviction allowed in the Supreme Court on the grounds that though it had been signed by the Minister of State his detention had not been considered personally by the Secretary of State.
It was a crazy judgement that seems to have happened because the court lazily left it to the Lord Kerr of Tonaghmore —whom I believe was sympathetic to the human rights lobby and anti-state campaigners — on the grounds that he was Irish, and then rubber-stamped his judgement. It totally undermined the Carltona principle that had operated in UK law since 1939 — that powers conferred on a Secretary of State may be exercised by other ministers or officials acting on his or her behalf.
All credit goes to the think tank Policy Exchange, whose director, Dean Godson, author of an acclaimed biography of David Trimble, immediately commissioned an assessment by an Oxford constitutional law professor and a former First Parliamentary Counsel: in this and subsequent papers they demolished Kerr’s argument. Kerr died a few months later. The former Supreme Court justices Lord Sumption and Lord Brown criticised the judgment, the latter saying it had been “clearly wrong” and “widely damaging”.
In the recent words of Lord Butler, who for ten years was the Cabinet Secretary and Head of the Home Civil service, without Carltona, “administration and government would be utterly impossible”.
Lord Caine, a Northern Ireland Office minister, agreed. Two former NIO (the Conservative minister Howell and the Labour secretary of state Murphy) were among the peers who backed the successful amendment proposed by Lord Faulks, a former justice minister, and the now Lord Godson.
K R W Law, which says it has been instructed by 50 former internees, regard it as “a draconian and retrograde step.” John Finucane MP is appalled that it will ”prevent hundreds of people illegally and unlawfully interned from seeking legal redress for wrongful imprisonment”.
Lord Dodds, though, in his speech in the Lords spoke of the relief for many “across all communities and all parties, except Sinn Féin, of course” that Gerry Adams “will not, on a technicality, be able to benefit from the largess of the British taxpayer when so many widows and families” who suffered from terrorism “have struggled with very little compensation or recompense for many, many years”.
Hip, hip hooray!