John Healey’s letter resigning as Defence Secretary set out a damning indictment of the Government’s inability and unwillingness “to commit the resources that the nation needs to defend the country at this time of rising threats.”
After the Supreme Court’s judgment, the Government cannot credibly maintain that it was the ECHR which forced its hand
Al Carns’s resignation as Armed Forces Minister, only a few hours later, powerfully reinforced this point and opened up a second political front, robustly attacking the Government’s approach to Northern Ireland legacy cases. The attack was fully warranted and a sharp change in approach to legacy cases needs to be introduced now.
The Government came into office committed to repealing the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 – which brought an end to civil claims and inquests arising out of the Troubles and offered conditional immunity to those who engaged with a new Independent Commission for Reconciliation and Information Recovery. The Act was unloved in Northern Ireland, but it at least constituted a serious attempt to bring to an end an unhappy and interminable legal process, reopening events of half a century earlier with little prospect of securing justice.
Hilary Benn, the Secretary of State for Northern Ireland, wrongly conceded that the 2023 Act was incompatible with Article 2 of the ECHR (the right to life), which the Strasbourg Court has misinterpreted to establish a procedural obligation in relation to the investigation of cases in which the state has killed a person or is alleged to have done so.
This obligation was invented in the famous Death on the Rock case in 1995, where the Strasbourg Court found the UK to have breached the right to life of three IRA terrorists shot and killed by the SAS in Gibraltar. In 2024, the Northern Ireland courts ruled that the Legacy Act 2023 breached the Article 2 procedural obligation by preventing prosecutions.
In September 2025, the UK and the Republic of Ireland announced a new framework for legacy cases, pursuant to which the UK would repeal the 2023 Act, replacing it with legislation that would open the door to new investigations and prosecutions. In a Policy Exchange paper published immediately before the announcement, my colleagues and I pointed out that this would inevitably mean a disproportionate focus on cases involving veterans, in view of the asymmetry in record keeping and the decommissioning of terrorist weapons in 1998.
Welcoming the framework at the time, Al Carns MP, then Armed Forces Minister, said that new legislation would put “in place specific and real protections for our veterans and Armed Forces community, to ensure the process can never again be used as a punishment. We will ensure the rights of those who served their nation so honourably will be protected.”
The protections that were announced seemed to fall well short of what was required, and predictably the Irish Government later denied that it had agreed to special protections for veterans at all. When the new Northern Ireland Troubles Bill was introduced, it became clear that the Government had adopted a maximalist policy of investigation and prosecution, presumably reasoning that this was all that Article 2 permitted or that the Irish Government would accept.
In April, Hilary Benn said that the Government would bring forward “substantial amendments” to the Bill which would further safeguard veterans. We now know – thanks to Al Carns’s resignation – that he pushed for major changes to be made to the Bill, changes which were not accepted.
His assessment is brutal:
“The same instinct, that serious problems can be managed rather than faced, runs through the Northern Ireland Legacy Bill. I have worked to fix the Bill from the inside, but it remains unfit for purpose. It risks failing the very veterans it claims to protect. … I set out the changes I believed were necessary, and the lines which I could not in good conscience go beyond. Those lines have not been accepted. I have run out of room to argue this case honourably from inside government. A serving minister cannot ask fellow veterans to trust a process he no longer trusts himself.”
He does not say what changes he proposed. But the approach that he decries – an instinct to try to manage problems rather than to face up to them – has been in plain sight for some time. The Government has taken Article 2 and the approval of the Irish Government to set the terms of what can possibly be done. The Government has not asked itself what is necessary to secure justice for veterans, protecting them from unfair legal process, and then sought to do it.
The irony is that it has never been clear that the Legacy Act 2023 is incompatible with Article 2. The Government foolishly failed to appeal to the Supreme Court on this point. Nonetheless, in May this year, the Supreme Court pointed out that the Strasbourg Court might very well conclude that a conditional amnesty is indeed compatible with Article 2. And even if it might rule otherwise, the Government’s duty is not to do whatever that Court dictates but is instead to maintain the peace in Northern Ireland and to protect veterans and others from continuing injustice.
After the Supreme Court’s recent judgment, the Government cannot credibly maintain that it was the ECHR which forced its hand. It has chosen to reintroduce a policy of vigorous reinvestigation and prosecution of veterans and it needs to take responsibility for that choice. After Al Carns’s blistering resignation letter, it should be clear that this is an indefensible choice, which betrays rather than protects those who served their country in very difficult circumstances.
Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
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