In the 1970s, Adams was twice convicted of unlawfully escaping from custody. Having been imprisoned under an Interim Custody Order ("ICO"), he was detained indefinitely in relation to suspected involvement in terrorism. In R v Adams  UKSC 19, the Supreme Court held that the detention was not personally authorised by the Secretary of State for Northern Ireland. That being the case, his detention was not lawful and so he could not be convicted of attempting to escape.
The decision of the court raises questions about the Carltona doctrine, a principle that has been at the heart of public law and government administration for decades. The doctrine provides that powers in legislation which must be exercised by a Secretary of State may be exercised on their behalf by an appropriately authorised official. The central question in this case was therefore whether the power to detain Adams had to be exercised by the Secretary of State, or could in fact be exercised by a junior minister.
Lord Kerr, on behalf of a unanimous court, considered that an examination of three criteria was required to answer this question. They are: the framework of the legislation; the language of the relevant provisions of the legislation; and the importance of the subject matter in question.
On the first criteria, the relevant legislation drew an important distinction between the making of the ICO, which had to be done by the Secretary of State, and the signing of the ICO, which could be done by the Secretary of State or his juniors. On the second criteria, the legislation described the ICO as being an "order of the Secretary of State". Finally, the court emphasised the importance of the power vested in the Secretary of State – clearly, decisions around limiting the freedom of an individual, possibly indefinitely, are decisions of momentous significance.
These three criteria meant that the court was comfortable displacing any application of the Carltona principle. Instead, the court considered that Parliament must have intended such an important decision to be taken by the Secretary of State personally. Put the other way, the less serious the consequences of the exercise of the power, the more Parliament is likely to have intended that the decision could be exercised by officials acting in the name of the Secretary of State, in keeping with the Carltona doctrine.
The consequences of the court's three-step criteria will no doubt be under the scrutiny of Whitehall's officials – not least because it may have upended long-standing conventions around the way they operate. Other cases may now look to test whether a statutory regime permits the exercise of powers by anyone other than the Secretary of State according to the criteria set out by the court in Adams. If it is held that a regime does come within that category, the effect will be that a decision is required to be taken by the Secretary of State themselves, with the decisions of officials having no legal effect.
In the modern era, perhaps we should expect Secretaries of State to be capable of and available to make decisions themselves that carry special weight or implications for those involved. But the consequences of this judgment could mean that those Secretaries of State may be subjected to a substantial administrative obligation to personally oversee and decide on a significant volume of decisions.
From a public administration perspective, it may be preferable to allow officials to apply a Ministerial-prescribed decision-making matrix to the factual issue in question. That way, public scrutiny is still available because of the Ministerial oversight, but officials would be empowered to dispassionately apply the law to the issue at hand. Either way, this decision has introduced a new context to the many and varied decisions of government that are made under delegation every day – and at the same time, a new layer of vulnerability to them.
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