Stormont leaders not thumbing their noses at law on victim payments, court told
Stormont’s leaders are not thumbing their nose at a law requiring them to set up a compensation scheme for victims, a court has heard.
A barrister for First Minister Arlene Foster and deputy First Minister Michelle O’Neill said they would comply with the legislation set by Westminster, but argued there was no specific timeframe in Government regulations for them to nominate a Stormont department to administer the scheme.
The failure by the Executive Office (TEO) to nominate a department, due to the refusal of Ms O’Neill to sign off on the action, has been challenged in the High Court in Belfast.
Addressing the second day of the judicial review, TEO barrister Michael Humphreys QC argued the key issue was whether the length of the delay in designating a department was unlawful.
“My instructions firmly are that the TEO will maintain the rule of law and recognises the obligation to designate a department as being a legal obligation imposed on it,” he said.
“The question for the court is ‘has that obligation been breached by the passage of time?’
“Has there been an impermissible or unreasonable delay in failing to designate?”
Judge Mr Justice McAlinden challenged the argument.
He said a time limit had been set for opening the scheme for applications, May 29 this year, and, in order to do that, a department had to have been designated to establish it.
Justice McAlinden said any “sensible interpretation” of the regulations was that a department had to be designated before the scheme opening at the end of May.
The joint legal challenge was brought by Jennifer McNern, who lost both legs in a Troubles bombing in 1972, and Brian Turley, one of the “hooded men” who were arrested and interrogated by the British Army in 1971.
The payment scheme is in limbo due to a dispute between Sinn Fein and the Government over eligibility criteria that are set to exclude anyone convicted of inflicting serious harm during the Troubles from accessing the support payments.
Sinn Fein claims the scheme would be discriminatory and would potentially exclude thousands of people from the republican community.
In a separate row, the Stormont administration and the UK Government have been at odds over who should pay for the scheme.
An argument in relation to who is entitled to compensation is being used a reason to delay compliance with a statutory duty
Justice McAlinden
Mr Humphreys told the court the fact Mrs Foster and Ms O’Neill had secured £2.5 million of executive funds for scheme set-up costs indicated they intended to proceed with it.
“That is not commensurate with a body which has thumbed its nose at the legislation or which doesn’t believe that the scheme should be implemented,” he added.
The judge, who on Monday accused Ms O’Neill of deliberately subverting the rule of law for political ends, suggested he may need to impose a “coercive” order to force TEO to nominate a department.
He said a simple declaration that TEO was acting unlawfully may not be sufficient to prompt action.
“The court has a genuine concern that because of the manner in which this matter has been dealt with there is a risk that a simple declaratory order in this case, because of the dual nature of the leadership within the Executive Office, a simple declaratory order may not result in a speedy resolution to this particular issue and that a more coercive order is required to ensure an effective remedy is achieved,” he said.
The judge said another option could see him make a declaratory order and then adjourn the case for a short period to see if the judgment prompted action from ministers.
If it did not result in progress, the judge said he could then revisit his findings.
During submissions, Mr Humphreys moved to differentiate between Ms O’Neill’s role as Sinn Féin vice president and her position as deputy First Minister.
He stressed that a letter from Ms O’Neill to Secretary of State Brandon Lewis indicating she would not progress the scheme in its current format was written as Sinn Féin vice president.
He said her stated position in a “political sphere” did not mean TEO would not abide by the law.
Justice McAlinden questioned the effort to separate Ms O’Neill’s two roles, noting that she clearly stated in the letter that she was not going to implement the scheme.
He said court could not “ignore the realities”.
“Ms O’Neill is the deputy First Minister,” he said.
“Ms O’Neill is a prominent member of Sinn Féin, Ms O’Neill is also a member of the Executive Office. The First Minister and deputy First Minister, those two individuals, as long as they hold those posts, are bound to promote the rule of law under the ministerial code, are bound to abide by the rule of law under the ministerial code.
“There cannot be a more such fundamental basic principle of a democratic government as the rule of law. That’s the key here, that’s what has to be addressed.”
Justice McAlinden insisted designating a department was a “simple task”.
“An argument in relation to who is entitled to compensation is being used as a reason to delay compliance with a statutory duty,” he said.
“And in doing so individuals who no one disputes are entitled to claim this pension, such as Ms McNern, who was blown up on March 4 1972, losing both legs, she has to wait and be kept out of her pension because of dispute over who should and should not be entitled.”
He added: “What we are dealing with here is a quite clear and obvious legal requirement which appears to have been disregarded for political ends.
“That is something the court cannot ignore, the court cannot tolerate and the court must declare unequivocally the primacy of the rule of the law – that is what the case is about.”
Justice McAlinden reserved judgment after legal arguments closed on Tuesday afternoon.
The judge said he would deliver his judgment at 10.30am on Friday.
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