Professor Richard Ekins' research plays pivotal role in Troubles legislation reform

Analysis by Professor Richard Ekins KC (Hon), Professor of Law and Constitutional Government, has played a central role in the development of the UK government's approach to safeguarding the Carltona principle and addressing the legal consequences of the Supreme Court's judgment in the 2020 R v Adams case.

In 2023, Parliament enacted sections 46 and 47 of the Northern Ireland Troubles (Legacy and Reconciliation) Act – provisions that drew directly on Professor Ekins' work and were designed to reverse the effect of R v Adams, which had held that Gerry Adams' detention in the 1970s was unlawful because it had not been personally authorised by the Secretary of State. 

Professor Ekins and Sir Stephen Laws KCB KC (Hon) had argued in May 2020, in a paper for the Policy Exchange think-tank, that the judgment had misinterpreted the relevant legislation, which made provision for detention to be authorised by Ministers of State without the personal involvement of the Secretary of State. 

In February 2024, however, the Northern Ireland High Court declared sections 46 and 47 incompatible with the European Convention on Human Rights. The then government appealed but, following the July 2024 general election, the incoming administration abandoned that appeal. In December 2024, the new government laid a draft remedial order under the Human Rights Act 1998 that proposed repealing sections 46 and 47 entirely.

In response, Professor Ekins and Sir Stephen published a paper in January 2025, entitled Misjudging Parliament's Reversal of the Supreme Court's Judgment in R v Adams. The paper challenged both the High Court's reasoning and the government's decision not to defend the legislation. It warned that repeal of sections 46 and 47, without replacement, would unsettle the fundamental Carltona principle governing ministerial responsibility and could enable Gerry Adams and others to seek compensation for detentions in the 1970s that should properly have been found to have been legally valid. Under the Carltona principle, statutory powers conferred on the Minister in charge of a government department do not have to be exercised by the Minister personally but can be exercised in the Minister's name by others in the department.

The paper prompted extensive media discussion across the UK and Ireland. Professor Ekins appeared on BBC Radio 4's Today programme, and the paper’s arguments were subsequently raised with the responsible Minister on air, discussed in Prime Minister's Questions, and cited repeatedly in debates in both Houses of Parliament. 

Professor Ekins and Sir Stephen later made a formal submission to the Joint Committee on Human Rights, which figured prominently in the committee's report on the draft remedial order. They also published a further paper, Legislating about Gerry Adams and Carltona, explaining why – if the proposed repeal were abandoned – new legislation was not strictly necessary to secure the Carltona principle or to prevent compensation claims, while outlining how Parliament could legislate if it chose to do so.

Following this intervention, the government amended the draft remedial order, adopting the course recommended by Professor Ekins and Sir Stephen and deciding not to repeal sections 46 and 47. The government then introduced the Northern Ireland Troubles Bill, in which clauses 89 and 90 replace sections 46 and 47 but maintain their intended legal effect.

In a written statement on 18 November, the Secretary of State for Northern Ireland set out the rationale for these clauses – an explanation directly shaped by the analysis developed across Professor Ekins' and Sir Stephen's series of four major papers over five years. The January 2025 intervention, supported by 14 peers including Lord Hope of Craighead, the former Deputy President of the Supreme Court, was instrumental in preventing the repeal of the Legacy Act provisions and in securing a legislative solution that upholds the Carltona principle and avoids reopening compensation claims.