Work by Richard Ekins helps lead to amendment of the Northern Ireland Troubles Bill
On 4 July, the House of Lords accepted a government amendment to the Northern Ireland Troubles (Legacy and Reconciliation) Bill, which reverses the legal effects of the Supreme Court’s judgment in R v Adams  UKSC 19. Professor Richard Ekins KC (Hon) has been calling for remedial legislation to this effect for over three years and his work was instrumental in securing the amendment.
On 13 May 2020, the Supreme Court allowed an appeal by Gerry Adams against his 1975 conviction for attempting to escape from lawful custody. The Court quashed the interim custody order that had authorised his initial detention on the grounds that it had been signed by the Minister of State and had not been considered personally by the Secretary of State. With Sir Stephen Laws KCB, KC (Hon), former First Parliamentary Counsel, Professor Ekins published a comprehensive critique of the judgment on 31 May 2020, which was endorsed by Lord Butler of Brockwell KG GCB CVO, former Cabinet Secretary, and Geoffrey Cox QC MP, as he then was, former Attorney General of England and Wales. The paper, which was published by the think-tank Policy Exchange, was widely reported in the media. (Professor Ekins has led Policy Exchange’s Judicial Power Project since its foundation in 2015.)
The Supreme Court’s judgment opened the door to Gerry Adams, and to other persons detained in the 1970s for suspected involvement in terrorism, wrongly to seek damages for false imprisonment and/or to claim compensation for wrongful conviction. The judgment also undermined the Carltona principle, which is the fundamental rule that powers conferred on a Secretary of State may be exercised by other ministers or officials acting on his or her behalf.
In his 2020 paper with Sir Stephen, and in four other papers published between 2020-2022 (as well as a number of short articles), Professor Ekins argued that Parliament should legislate as soon as possible to reverse the judgment and correct the law. Lord Faulks KC, former Justice Minister and former Chair of the Independent Review of Administrative Law, raised Professor Ekins’s work on point in the House of Lords in the Second Reading debate of the Judicial Review and Courts Bill on 7 February 2022.
On 10 May 2023, Lord Godson, Director of Policy Exchange, and Lord Faulks KC tabled an amendment to the Northern Ireland Troubles (Legacy and Reconciliation) Bill to reverse the legal effects of the Supreme Court’s judgment in Adams. Their amendment was debated at Committee Stage on 11 May, with many peers from across the House expressing strong support for it. Lord Faulks KC referred again to the importance of the 2020 paper as did Lord Macdonald of River Glaven KC, former Director of Public Prosecutions.
The government reserved its position at Committee Stage. On 20 June, Lord Brown of Eaton-under-Heywood, former Supreme Court Justice and former Law Lord, published an article in the press arguing that Adams should be reversed by legislation and referring to the 2020 paper, which “so compellingly demolished the Supreme Court’s judgment”. On 23 June, Professor Ekins and Sir Stephen published another Policy Exchange paper making the case for the Faulks/Godson amendment and answering two objections that it anticipated might wrongly be made against it.
The paper was strongly supported in a joint foreword by (1) Lord Brown of Eaton-under-Heywood, former Supreme Court Justice and former Law Lord, (2) Lord Butler of Brockwell, Cabinet Secretary 1988-1998, (3) Lord Carlile of Berriew CBE KC, former Independent Reviewer of Terrorism Legislation, (4) Lord Howard of Lympne CH KC, former Home Secretary and Leader of the Opposition, (5) Lord Howell of Guildford, Minister of State for Northern Ireland 1972-1974, (6) Lord Macdonald of River Glaven KC, former Director of Public Prosecutions, (7) Lord West of Spithead GCB DSC, former Parliamentary Under-Secretary of State for Security and Counter-Terrorism, and (8) Lord Wolfson of Tredegar KC, former Minister of Justice.
In advance of the Bill’s Report Stage on 26 June, the government accepted the principle of the amendment and committed to bringing back its own amendment at third reading. Lord Faulks KC noted:
“The Government understandably wanted time to consider their response to the amendment after it was debated in Committee. Their initial response, while not unsympathetic, was that there were legal impediments in the way of the amendment. I was not convinced by those arguments, despite having the opportunity generously afforded to me by the Minister to meet his officials. Policy Exchange once more, stepped into the fray and published an article that provided a convincing counter to those arguments.”
Lord Murphy of Torfaen, former Secretary of State for Northern Ireland, also expressly referred with approval to the arguments advanced in Professor Ekins and Sir Stephen’s 23 June paper.
At the Bill’s Third Reading, on 4 July, the House of Lords accepted the government’s amendment, which restores the validity of the interim custody orders that the Supreme Court’s judgment wrongly called into question. The amendment will prevent Gerry Adams and others from receiving compensation in reliance on the 2020 judgment and will restore the Carltona principle, which the judgment unsettled. Professor Ekins’s work with Sir Stephen was raised again by Lord Pannick KC and by Baroness O’Loan, who quoted from the 23 June paper and noted how helpful it was in explaining and justifying the amendment.