Gerry Adams does not deserve compensation
The Government has come under fire for apparently intending to change Northern Ireland legislation in a way that could entitle Gerry Adams to sue for compensation. Lord Hermer, who acted as a barrister for Adams before becoming Attorney General, has not revealed whether he has advised the Government on changing the legislation in a way that could benefit his former client.
In 1973, Adams was detained as a suspected terrorist under an interim custody order under Northern Ireland special powers legislation. He twice attempted to escape, and was convicted for both attempts.
It later emerged from government papers released under the 30-year rule that there might have been a technical flaw in the interim custody order: it had been signed by the minister of state, the second senior minister at the Northern Ireland Office, rather than by the secretary of state himself.
Adams then sought to overturn his convictions and the Supreme Court allowed his appeal in 2020, holding that the order had been invalid because it had not been made by the secretary of state personally.
Some legal commentators argue that the Supreme Court failed to apply the Carltona principle, under which acts carried out by junior ministers or civil servants are legally deemed to be the acts of the minister himself. But its decision meant that both Adams and any other suspected terrorist detained under an order not personally signed by the secretary of state, could potentially bring a claim for damages for unlawful imprisonment.
The Conservative government accepted amendments to its 2023 Northern Ireland Troubles Act, which retrospectively validated such interim custody orders and prevented civil claims for compensation being brought.
However, these provisions were challenged under the Human Rights Act in the courts of Northern Ireland. The NI Court of Appeal upheld the making of a so-called “declaration of incompatibility” against them.
The Government now seems to be abandoning an appeal to the Supreme Court and instead intends to introduce so-called “remedial” legislation under the Human Rights Act which will repeal the relevant sections (46 and 47) of the 2023 Act. On the face of it, that would open the door to Adams and others to pursue their claims to compensation.
Richard Hermer KC (instructed as it happens by a solicitor called Martin Howe – no relation) acted for Adams, defending a civil claim against him by victims of the IRA mainland bombing campaign. It is not clear what part Lord Hermer played within government in advising on decisions about the clauses of the 2023 Troubles Act.
Geoffrey Cox had acted as legal adviser to the government of Mauritius before becoming Attorney General and recused himself from involvement in the UK’s response to Mauritius’s claims to the Chagos Islands. Unless the Attorney General is recruited from monasteries or the post is restricted to lawyers who have only ever acted for the government, such potential conflicts are inevitable and the issue is whether they are properly handled.
If Lord Hermer has advised the government on this matter is he complying with the Bar’s conflict of interest rules? Those rules permit barristers to advise another client who has adverse interests to a past client, provided the matters are unrelated and there is no use of private information.
Here, Lord Hermer may be able to argue that the defence of Adams against claims from IRA bomb victims is legally unrelated to his possible claim against the government for unlawful imprisonment, although there is a common strand of Adams’s alleged or suspected involvement in terrorism that underlies both cases.
But the broader issue is that any minister should ensure that his decisions or advice in office are not tainted, nor perceived to be tainted, by present or past associations or interests.
This consideration is particularly important for the Attorney General who is called upon to exercise delicate judgment in sensitive matters.
Here, Lord Hermer seems on much shakier ground if he has in fact advised the Government. It calls into question the judgment of the Prime Minister in appointing him given the prevalence of sensitive Northern Ireland-related matters which will pass across the Attorney General’s desk.
The Government’s apparent determination to repeal these sections is a serious mistake. Parliament is fully entitled to disregard a declaration of incompatibility.
Allowing suspected terrorists to claim compensation as a result of a technical defect in the detention paperwork should simply not be allowed to happen. Unfortunately this Government has sunk so far into the Labour-created human rights legal morass that it seems incapable of pulling itself – or the country – out of it.
Martin Howe KC practises EU, post-Brexit and public law at 8 New Square