Richard Ekins

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.

In the early afternoon of Thursday 7 May, with the polling booths open and a temporary pause in the political debate, the Supreme Court handed down its judgment in Dillon v Secretary of State for Northern Ireland. The judgment may largely escape public notice, but this was and is a highly significant case. The Supreme Court has repaired a major hole in the constitution, and its judgment should reignite criticism of the government’s choice to repeal the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. The Legacy Act 2023 terminated legal proceedings and inquests arising out of the Northern Ireland Troubles, offering conditional immunity from prosecution to those who engaged with the new Independent Commission for Reconciliation and Information Recovery.

The policy that seems closest to the government’s heart – the surrender of the Chagos Islands to Mauritius – is in real trouble. The treaty with Mauritius, signed in May last year, cannot be ratified unless parliament enacts legislation. But the Diego Garcia Military Base and British Indian Ocean Territory Bill has run out of time in the Lords and, the Times reports, the government does not intend to include legislation for ratification in the King’s Speech next month.  This is a change of plan, not a change of heart. The government has accepted that for the time being the second condition on ratifying the treaty – securing US consent – cannot be satisfied.

The law of public protest is in a sorry state. Lawful protest should take place within clear parameters set by the criminal law, framed in part to protect the rights of others. Instead, “protest” is too often treated as a reason to disapply the ordinary law, wrongly prioritising the liberty of “protestors” over the freedom of members of the public to go about their lawful business. While the last Parliament repeatedly failed to repair this imbalance in the criminal law, Parliament now has another opportunity to address the problem, which it should take.

The Divisional Court has dramatically upheld a legal challenge to the decision of the then-Home Secretary, Yvette Cooper, to proscribe Palestine Action – despite recognising that it is ‘an organisation concerned with terrorism’ which the Home Secretary has statutory power to proscribe. The judgment is not an abuse of judicial power as such – it does not come out of nowhere – but does vividly highlight real problems with judicial review and human rights law. The government is right to appeal but should also propose further legislation to overhaul the proscription regime. The decision to proscribe Palestine Action was made in June 2025, shortly after three Palestine Action activists broke into RAF Brize Norton and damaged two military planes.

In the debate about withdrawing from the European Convention on Human Rights (ECHR) enthusiasts for European human rights law often seem to think they have a trump card. Leaving the ECHR, they say, would put the UK in the company of Belarus and Russia, two other European states that are not member states of the ECHR. Strictly speaking, they are not the only two. Kosovo is not (yet) a member; neither is Kazakhstan, which, incredibly, is eligible to join because 4 per cent of its territory is west of the Ural River. Still, it is the spectre of association with Belarus and Russia that looms large in parliamentary and public deliberation about ECHR membership.

Does the government have the power to strip Alaa Abd El-Fattah of his recently acquired British citizenship? Sources within government reportedly say no. But the relevant legislation is in fact highly permissive. The government cannot avoid taking responsibility for deciding to exercise or not exercise the power to deprive him of his citizenship. The government may decide not to exercise its power here. But it cannot maintain that there is simply no power to act El-Fattah was registered as a British citizen in December 2021, in the course of the campaign against his imprisonment in Egypt. Successive UK governments made efforts to secure his release from prison in Egypt. He was released in September and was allowed to leave Egypt in December.

It is twenty-five years to the day since the Human Rights Act 1998 (HRA) came into force. In that time, human rights law has not become a settled, accepted part of our constitution. To the chagrin and dismay of many lawyers, including no doubt Sir Keir Starmer and Lord Hermer, it remains stubbornly controversial. But the controversy is warranted – this body of law distorts parliamentary democracy, disables good government, and departs from the ideal of the rule of law.

Fresh from agreeing to surrender the Chagos Islands to Mauritius, the government may be about to reach an equally damaging agreement with the Republic of Ireland in relation to legacy cases in Northern Ireland. Recent statements by the Secretary of State for Northern Ireland, Rt Hon Hilary Benn MP, suggest that the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 is to be repealed. That Act’s emphasis on truth and reconciliation, paired with conditional immunity for those who participate, looks set to be replaced by a renewed emphasis on investigations and prosecutions.    On past form, this approach to legacy cases – which centres on inquests, criminal investigations, prosecutions and trials – is likely to prove divisive.

It has become an article of faith in some quarters that the UK's withdrawal from the European Convention on Human Rights (the ECHR) would breach or undermine the Belfast (Good Friday) Agreement. The Prime Minister, Keir Starmer, played this card only last week, in response to the Reform party’s proposals for addressing illegal migration. For her part, the Leader of the Opposition, Kemi Badenoch, said that ECHR withdrawal 'could affect the Good Friday Agreement and needed to be done in a way that would not destabilise the country or the economy'. Even Nigel Farage, the leader of the Reform party, seemed to concede the point, saying that the Belfast Agreement would need to be 'renegotiated', implying that without a new agreement, UK withdrawal from the ECHR would be a breach.

When should a foreign offender be deported? The government’s new policy is that foreign offenders should be deported immediately after conviction, rather than after having served some fraction of a sentence of imprisonment imposed by a court. The measure is framed as ‘radical action’ to strengthen border security and to fix the broken criminal justice system, with the Justice Secretary promising that new legislation will ensure that deportations happen ‘earlier than ever before’. She says that ‘Our message is clear: if you abuse our hospitality and break our laws, we will send you packing’. What the government is proposing is simply to let foreign offenders walk free without punishment This is an Orwellian inversion of the truth.

Lord Hermer KC has done it again. Delivering RUSI’s annual security lecture this week, the Attorney General set out to ‘depolarise’ the debate about international law, before promptly comparing those who are open to withdrawal from the European Convention on Human Rights (ECHR) with Carl Schmitt, the notorious German jurist who joined the Nazi party in 1933. If Lord Hermer’s intention truly was to lower the political temperature, and to help to broaden the base of support for the government’s approach to international law, his speech must be judged a failure. Perhaps his choice of words was simply clumsy, as he has since said, although the text as a whole suggests otherwise.

Is the European Court of Human Rights a foreign court? For the former diplomat Lord Hannay of Chiswick, this 'lamentable, dog-whistle nomenclature is not even accurate, since the court has had many admirable British judges down the years'.  Strictly, the Strasbourg Court may be an international court rather than a foreign court – and it is true and important that the UK always has a judge on the court, many of whom have been impressive jurists. Still, parliamentarians and the public are not wrong to see the Strasbourg Court as a foreign body – an irritant to the body politic – riding roughshod over our tradition of parliamentary democracy and the rule of law.

The Lady Chief Justice, Baroness Carr, has told reporters that she is “deeply troubled” by a recent exchange between the Prime Minister and the Leader of the Opposition during Prime Minister’s Questions – and that she has written to the Lord Chancellor to complain. This is an extraordinary, and extraordinarily ill-advised, intervention in the political process, which the Prime Minister and the Leader of the Opposition should firmly rebuff. There is no evidence that occasional ministerial criticism of judgments imperils judicial independence The parliamentary exchange to which Baroness Carr took exception concerned a recent decision of the Upper Tribunal allowing a Palestinian family in Gaza, who had a relative living in the UK, to enter the country.

The government’s fealty to human rights law is not in doubt. Still, one might have hoped that the human rights lawyers who dominate this government – the Prime Minister, Sir Keir Starmer KC and the Attorney General, Lord Hermer KC – would handle human rights law effectively, distinguishing weak from strong arguments and making a reasonable case for our national interest. The unfolding debacle in relation to cession of the Chagos Islands shows that this is not so.

Our new government’s most closely-held commitment is to the primacy of human rights law. Shortly after taking office, Keir Starmer vowed that under his leadership the UK will 'never' leave the European Convention on Human Rights (ECHR). Last month, the Attorney General, Lord Hermer KC, undertook 'to counter the false choice, offered by some, between parliamentary democracy and fundamental rights.' Fair enough, save that Lord Hermer has confused protection of fundamental rights with judicial application of the Human Rights Act 1998 (HRA).  The HRA invites judges to answer questions that they are ill-suited to answer It is true and important that Parliament enacted the HRA and has not yet repealed it.

Rishi Sunak has promised to respond to the Supreme Court’s judgment that the Rwanda policy is unlawful by agreeing a new treaty with Rwanda and introducing fast-track legislation to parliament. This has been widely ridiculed, as if the proposal were for parliament simply to ignore findings of fact made by the Supreme Court or, worse, for parliament to authorise refugees being sent back to their persecutors. It is extremely unlikely that this is what will be proposed. Much more reasonable proposals are likely – and should be given a fair hearing. The Supreme Court was able to block the Rwanda plan because the government attempted to implement it without securing express parliamentary authorisation.

The death of Lord Brown of Eaton-under-Heywood means that Britain has lost a great jurist – but also, unusually in this era, a formidable parliamentarian as well. He was a modest, unassuming man (few non-lawyers will know his name), yet he made a remarkable contribution to the law and government of this country, embodying the best of the common law constitutional tradition, which requires judges to be independent, not only from the executive, but also from one another.  Simon Brown was appointed to the High Court in 1984, becoming a Lord Justice of Appeal in 1992 and then a Law Lord in 2004. He was one of the last of the old Law Lords, moving across to the new Supreme Court in 2009 and serving there until 2012.

The government’s inability to control our maritime border is a public scandal. Bold action is needed to make crossing the Channel pointless and put the people smugglers out of business. This will be impossible without major legal reform. So it is good news that the government is about to introduce new legislation to Parliament.  The government’s Rwanda plan was well-intentioned. However, it not supported by a legislative mandate and was, predictably, challenged in the courts. In June last year, an attempt to implement the plan was blocked by a last-minute intervention by the European Court of Human Rights. The legal challenge in our courts continues and even if the government in the end prevails, the Strasbourg Court may still say no.