17 August 2020

O’Neill subverting rule of law by delaying victim payments – judge

17 August 2020

A judge has accused Stormont’s Deputy First Minister of ignoring the rule of law by delaying a compensation scheme for Troubles victims.

Mr Justice McAlinden said Michelle O’Neill’s stance in not nominating a Stormont department to administer the scheme – a requirement set out in legislation passed at Westminster – is “fundamentally inappropriate”.

He said the case involved an attempt to “subvert the rule of law for political ends”.

The judge said anyone in a ministerial post who was not prepared to comply with the rule of law “shouldn’t be there”.

Taoiseach Micheal Martin visits Northern Ireland (PA Wire)

Mr Justice McAlinden said if a minister had a difficulty complying with legislative requirements they had an option.

“The option is to resign your office,” he added.

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 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.

The judge expressed his “initial view” at the outset of a joint legal challenge brought by Jennifer McNern, who lost both legs in a Troubles bombing, and Brian Turley, one of the “hooded men” who were arrested and interrogated by the British Army in 1971.

They are challenging the Executive Office’s failure to introduce the scheme, which would see victims paid up to £10,000 a year depending on the severity of their injury.

It should have been open to applications at the end of May.

The court heard that DUP First Minister Arlene Foster had confirmed she was prepared to comply with the regulations made by the Government, having initially objected over the funding issue.

Having sought confirmation from Ms McNern’s lawyer that Ms O’Neill was now the only one refusing to comply with the legislation, Mr Justice McAlinden said: “I see it as one element within the Executive Office deliberately choosing to ignore the requirement to comply with the rule of law to express a political advantage.

“That is a fundamentally inappropriate stance to take and it is a stance that this court will have no hesitation in describing in the bluntest terms and in requiring a remedy to be provided in the shortest time frame.”

Having read the arguments put forward by the applicants’ legal teams and the Executive Office, Mr Justice McAlinden said his “initial view” of the issue was unlikely to change as a result of hearing the case in full.

He adjourned the judicial review hearing for a short period on Monday morning and asked the legal parties to discuss whether they wished to proceed.

Jennifer McNern begins Court challenge (PA Wire)

When the court returned, a lawyer representing the Executive Office said attempts were being made to contact ministers to seek instructions on the case.

The hearing then proceeded, after the judge asked court officials to prepare an audio disc of his comments to be prepared for distribution to all parties.

Mr Justice McAlinden said there had been a “significant and unjustifiable delay” in setting up the scheme.

“That delay cannot be allowed to continue,” he added.

He said victims had “suffered for long enough without their suffering being appropriately recognised by our society”.

Northern Ireland Secretary Brandon Lewis is a secondary respondent in the challenge case.

However, the judge said he believed Mr Lewis had done all he could have been expected to do in relation to the scheme.

Ms McNern suffered life-changing injuries in a bomb attack blamed on the IRA at the packed Abercorn Restaurant in Belfast on a busy weekend shopping day in 1972.

The applicant’s barrister Danny Friedman QC told the judge that ministers should not be able to disobey the law.

“The Executive is duty bound to comply with the law, it cannot engage in political disobedience and, as my lord says, that is why the rule of law is so fundamentally at stake in the dispute now before you,” he said.

The judge said ministers did not have the right to “ignore or stymie” clear legislative provisions.

“The message by doing so is a message undermining the rule of law,” he said.

“In a post-conflict society, one thing that every politician should be striving to do is to support the rule of law – not to pick and choose which laws to accept, which laws to adhere to and which laws to ignore.

“Those are fundamental issues for our society and the politicians better get that message, and that message will be delivered by this court.”

Mr Friedman suggested there was a duty on politicians in the region to “grow up”.

‘Hooded men’ torture case

Mr Turley’s barrister Barry McDonald QC said a major point of constitutional importance was at stake in the case, one that affected the governance of Northern Ireland.

He highlighted that the ministerial code of conduct at Stormont required ministers to respect the rule of law.

“What this case demonstrated is that at the very highest level of government, ministers in the devolved administration think that if the law is not to their liking in any particular respect they can choose to ignore or even defy it,” said Mr McDonald.

“In this case, both the First Minister and Deputy First Minister refused to comply with the legal regulations. We know the First Minister on the ground initially that the scheme should be funded by Westminster. And the Deputy First Minister on that ground, as well as on the ground that she didn’t agree with the terms of the scheme.

“We know the First Minister is now prepared to comply but the Deputy First Minister isn’t.”

Mrs Foster did not escape criticism during the hearing, as the judge challenged a suggestion made in the Executive Office’s joint submission that it was entitled not to comply with the regulations while the matter remained an issue of political dispute.

He said both ministers had demonstrated a “fundamental lack of awareness” of the requirement to abide by the law.

On the suggestion that Mrs Foster and Ms O’Neill believe the issue is not a matter for court intervention, Mr McDonald added: “Ministers, in our respectful submission, need to be disabused of that dangerous and wholly unconstitutional notion.”

Ahead of Monday’s hearing, Ms McNern said: “All we ever wanted was to be treated with respect and dignity and not be left as the part of the forgotten legacy of the Troubles.

“When the legislation was passed at Westminster, we thought we had achieved that.

“But the refusal by the Executive Office to implement the legislation is devastating.”

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