Austen Morgan: How Labour put the ‘hokey cokey’ into Troubles legacy law

Austen Morgan is a barrister at 33 Bedford Row Chambers. He is the author of ‘Pretence: why the United Kingdom needs a written constitution’

Gerry – “I was not a member of the IRA” – Adams is a lucky man.

Interned in the 1970s as an Irish republican, he escaped twice from prison (being criminally convicted and sentenced). In R v Adams, in May 2020, the supreme court held, in a very-late appeal, that his interim custody order of 21 July 1973 had been signed by the wrong Northern Ireland Office (‘NIO’) minister. Our eponymous hero, and many followers, became entitled to compensation for wrongful conviction and false imprisonment.

The late Lord Kerr, a former lord chief justice of Northern Ireland, had made the wrong minister decision (I submit) perversely, but the other four members of the supreme court (including one still sitting) went along with it. It deserves to be overturned.

In March 2020, the Johnson government – recognising its duties to the ‘operation banner’ veterans and breaking from Dublin – had begun the legislative process which led to the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.

Sections 46 and 47 of the 2023 statute – which had originated with Lords Faulks and Godson – effectively rewrote the law: there could not have been any wrong ministers in the NIO in 1973; Adams and others therefore had no claims for damages.

That was to reckon without a high court judge in Northern Ireland, in a case called Dillon, Mr Justice Colton, judicially reviewing the 2023 statute. On 28 February 2024, he made a declaration of incompatibility under the Human Rights Act 1998. Parliament was denying Gerry Adams his right to compensation. (This decision was upheld by the lady chief justice, Dame Siobhan Keegan, in the court of appeal in Belfast, on 20 September 2024.)

Brandon Lewis, the secretary of state, had appealed Colton J on the Adams’ compensation case, but, following the entry of Sir Keir Starmer into Downing Street, his successor, Hilary Benn, abandoned the human rights appeal on 29 July 2024.

It is most likely that this was on the advice of Lord Hermer, the new attorney general, and a Human Rights Act 1998 enthusiast. (The learned attorney had acted for Gerry Adams in a different (English high court) case, but sections 46 and 47 nowhere referred to the R v Adams supreme court case. Lord Hermer has maintained unconvincingly that there was no conflict of interest.)

The Labour government ineptly tried to get rid of sections 46 and 47 through, what is called, a remedial order (similar to delegated legislation) – all because the attorney general wanted to big up (non effective) judicial declarations of incompatibility in the face of parliamentary sovereignty.

This is in spite of Kemi Badenoch, at prime minister’s questions on 15 January 2025, having secured from Sir Keir Starmer the following: “We are working on a draft remedial order and replacement legislation, and we will look at every conceivable way to prevent these types of cases from claiming damages – it is important to that I say that on the record.”

On 14 October 2025, the government published its Northern Ireland Troubles bill, its so-called repeal and replace measure. The second reading of the bill takes place in the commons tomorrow.

Sections 46 and 47 were removed from the draft remedial order on the same date.  And are now replaced by clauses 89 and 90 in the bill, primary legislation again.

Lawyers, and those who wear anoraks, will be interested in how parliamentary counsel has seen to cut off Gerry Adams’ access to his compensation: again, it is retrospective legislation; but this time the quashing of his convictions is rewritten to not entitle him to statutory compensation.

So, we have here legislative hokey cokey: Hilary Benn (with Lord Hermer whispering the legal advice) wanted sections 46 and 47 removed by a remedial order; now, with the Starmer U-turn, we are having them put back with clauses 89 and 90 in the government’s repeal and replace bill.

There is one problem. Lord Hermer accepted Colton J’s view that the Conservatives had violated Gerry Adams’ human rights. Now, with Hilary Benn making a section 19 statement on the face of the bill, Labour has told parliament that it is not contrary to human rights.

That is why I have written to Lord Alton, the chair of the joint committee on human rights at Westminster, asking him and his colleagues to consider two new questions: first, how can the secretary of state possibly maintain that there is no human rights problem?; and second, what is to stop Colton J, or another Northern Ireland judge, judicially reviewing Labour’s legislation (after enactment) and making another declaration of incompatibility?