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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> McNern, Re Application for Judicial Review  NIQB 57 (21 August 2020)
Cite as:  NIQB 57
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Neutral Citation No:  NIQB 57
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
ICOS No: 2020/39793 &
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY
MRS JENNIFER McNERN
THE EXECUTIVE OFFICE
THE SECRETARY OF STATE FOR NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY
MR BRIAN TURLEY
THE EXECUTIVE OFFICE
THE SECRETARY OF STATE FOR NORTHERN IRELAND
AND IN THE MATTER OF DECISIONS OF THE EXECUTIVE OFFICE
THE SECRETARY OF STATE FOR NORTHERN IRELAND
Mr Danny Friedman QC with Mr David Heraghty (instructed by Higgins Hollywood Deazley Solicitors) for the Applicant Mrs McNern
Mr Barry MacDonald QC SC with Mr Jude Bunting (instructed by Phoenix Law Solicitors) for the Applicant Mr Turley
Mr Michael Humphreys QC with Mr Philip McAteer (instructed by the Departmental Solicitor’s Office) for the Respondent the Executive Office
Dr Tony McGleenan QC with Ms Laura Curran (instructed by the Crown Solicitor’s Office) for the Respondent/Notice Party the Secretary of State for Northern Ireland
 This is an application for judicial review brought by two individuals who claim entitlement to payments under the Victims’ Payments Regulations 2020 (“the 2020 Regulations”), made under sections 10 to 13 of the Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”), an Act of the United Kingdom Parliament. Section 10(1) of the 2019 Act which came into force on 22nd October, 2019, imposed a duty upon the Secretary of State for Northern Ireland:
“by regulations to establish a scheme under the law of Northern Ireland which provides for one or more payments to be made to, or in respect of, a person who has sustained an injury as a result of a Troubles-related incident.”
This is further to the commitment set out in paragraph 28 of the 2014 Stormont House Agreement to find a way to provide a "pension" for those most seriously injured in the Troubles.
 Section 10(2) of the 2019 Act mandated that the first regulations made under sub‑section (1) had to be made before the end of January, 2020 and had to come into force before the end of May, 2020. The explanatory note to the Act states that “in practice this means that the scheme should be in operation by that later date.” Section 10(3) of the Act stipulated that the regulations made by the Secretary of State for Northern Ireland had to make provision as to the eligibility criteria for payments under the scheme and this subsection set out a number of matters that could be dealt with in such criteria including how the injury was sustained and whether or not a person had been convicted of an offence. It is clear from these provisions that the Secretary of State was empowered to make regulations which contained eligibility criteria drafted in such a way so as to exclude from the scheme individuals convicted of an offence connected with the incident in which they sustained their injury.
 The Northern Ireland Executive was not reformed until 10th January, 2020 and in order to comply with his statutory duty, the Secretary of State for Northern Ireland duly made the Victims’ Payments Regulations 2020 on 31st January 2020. The Explanatory Memorandum describes the purpose of the Regulations in the following terms:
“This instrument establishes a Scheme for payments to be made to those permanently disabled as a consequence of injury caused by a Troubles-related incident. The instrument makes provisions for who will be entitled to payments and for how much, for decisions and appeals, and creates a new body to operate the Scheme.”
 Mrs McNern and Mr Turley both challenge what is in effect the deliberate and intentional failure of the Executive Office to comply with its obligation clearly and unequivocally set out in paragraph 2(1) of Schedule 1 to the 2020 Regulations to designate a Northern Ireland Department to exercise the administrative functions of the Victims’ Payments Board established by regulation 3(1). They also allege that the Executive Office’s failure to make any grants to the designated Department under paragraph 9 of Schedule 1 is unlawful. Mr Turley additionally alleges that if the provisions of paragraph 2(1) and paragraph 9(1) of Schedule 1 can be interpreted as not imposing a requirement upon the Executive Office to designate a Department and provide grant funding to that Department within the period between 24th February, 2020 and 29th May, 2020 but instead enable the Executive Office, for political reasons, to delay taking such steps until outstanding political issues can be resolved, then the Secretary of State has failed to comply with his statutory duty imposed upon him by the provisions of the 2019 Act because he has failed to enact regulations which establish an effective and workable scheme under the law of Northern Ireland which provides for payments to be made to or in respect of a person who has sustained an injury as a result of a Troubles-related incident.
 Mr Turley’s case against the Secretary of State is by its nature one which only arises if his case against the Executive Office fails in its entirety or succeeds on the merits but the remedy provided does not ensure the effective operation of the scheme within a relatively short period of time. For the reasons set out in the preceding and subsequent paragraphs of this judgment, I am satisfied that the Regulations made by the Secretary of State do provide an effective, carefully constructed, well thought out and workable scheme and this finding is clearly relevant to the issues that I am required to determine as between the Applicants and the Executive Office. On 19th August, 2020, after the conclusion of the hearing of this matter which took place on 17th and 18th August, 2020, I received correspondence from Mr Turley’s Solicitors requesting that I defer giving judgment on the merits of Mr Turley’s challenge against the Secretary of State until the outcome of the Applicants’ challenges against the Executive Office was made known and time allowed for the impact of any remedy granted to be assessed. This provoked a response from the solicitors for the Secretary of State and a further response from Mr Turley’s Solicitors. Having considered this correspondence, I do not consider that the course of action urged upon me on behalf of Mr Turley is the appropriate course of action to adopt in this case. The challenge brought by the Applicants against the Executive Office does involve an analysis of the Regulations made by the Secretary of State. A finding in favour of the Applicants and against the Executive Office does at least to some extent depend upon a finding as to the efficacy of the Regulations made by the Secretary of State. Therefore, that issue is addressed in this judgment and the determination that I have made at the start of this paragraph will form part of the judgment of this Court.
 The case put before the Court by the Executive Office insofar as I understand it is that the Regulations as made by the Secretary of State for Northern Ireland do require the Executive Office to designate a Department but do not require the Executive Office to designate a specific Department within any particular timeframe. It is also argued on behalf of the Executive Office that the apparently unqualified requirement to designate a Department must be interpreted as being qualified so that the Executive Office is permitted to deliberately delay designating a Department for so long as it takes to bring about the resolution of two political issues which presently exist between the Ministers in the Executive Office and the Secretary of State for Northern Ireland.
 Stated in very brief and general terms, the two political issues referred to in the previous paragraph relate to the ultimate source of funding for the scheme and who should be entitled to a payment under the scheme. Until very recently, both Ministers in the Executive Office appear to have considered that it was appropriate to deliberately delay the designation of a Department in the hope of extracting some form of concession from the Secretary of State that the Westminster Government would provide a substantial part of the funding for this scheme. Mrs Foster, the First Minister, has now changed her stance and is prepared to immediately designate a Department even though the dispute with Westminster over funding has not been resolved. She is committed to finding the necessary money from the Northern Ireland Block Grant, if that proves to be necessary.
 The Deputy First Minister appears to still consider it both appropriate and necessary to deliberately delay the designation of a Department in order to put pressure on the Westminster Government to provide a substantial part of the funding for this scheme. However, this is, seemingly, not the real crunch issue for the Deputy First Minister. Ms O’Neill as Vice President of Sinn Fein is implacably opposed to the current approach to the issue of eligibility to payments under the scheme on the basis that many Republicans with relevant convictions will or may be precluded from receiving payments. This political dispute rages between the Deputy First Minister and the Secretary of State but also involves the First Minister as she has publicly made it known that she is prepared to allow the scheme to come into operation based on the present eligibility criteria.
 The Executive Office can only act if there is agreement between the First and Deputy First Ministers and it is clear that agreement in relation to the eligibility criteria issue and to a lesser extent the funding issue is absent and, as a result, the Executive Office has not acted to designate a Department. The questions for the Court to determine are whether the interpretation of the 2020 Regulations put forward by the Executive Office is the correct interpretation and whether the political disputes described above entitle the Executive Office to delay designating a Department up to the present time.
 I have already stated in paragraph  above that the clear, unqualified and unconditional language of paragraph 2(1) of Schedule 1 can only be interpreted as imposing a duty on the Executive Office to designate a Northern Ireland Department on 24th February, 2020 or as soon as possible thereafter so as to enable the Board to be established and functioning to a limited extent before 29th May, 2020. This, in the context of the overall legislative framework, is the only reasonable and rational interpretation. I do not wish to labour the point but one matter which becomes painfully and abundantly clear when one considers the voluminous evidence provided to the Court by the Respondents in this case is that whenever any relevant Department Official, Northern Ireland Civil Servant or member of the Victims’ Pension Implementation Oversight Group was either requested for or volunteered an opinion on either the mandatory nature of the requirement on the Executive Office to designate a Department or the urgency to do so, the clear and unequivocal answer or opinion that was given was that the Executive Office was duty bound to do so and that the matter was urgent. The First and Deputy First Ministers could not have been in any doubt about those two issues. This is not a case of one, other or both Ministers being under a misapprehension as to the nature and urgency of the duty. This is a case of both and more recently one deliberately refusing to comply with the obligation to designate a Department in the hope of extracting political concessions relating to funding and eligibility.
 Mrs Judith Thompson, the Commissioner for Victims and Survivors helpfully provided a detailed Affidavit to the Court which was affirmed on 14th August, 2020. It is to be recalled that under section 10(10) of the 2019 Act, the Secretary of State for Northern Ireland was under a duty to consider any advice provided by the Commissioner prior to making the 2020 Regulations. Mrs Thompson did provide detailed, thoughtful and constructive advice on a range of issues relating to the scheme, including the issue of eligibility. For present purposes I need only concentrate on the introductory remarks of Mrs Thompson which are set out in paragraph 4 of her advice. She said the following:
“The Commission is pleased to respond to the consultation in recognition of the fact that following the enactment of the Northern Ireland (Executive Formation etc) Act 2019, the UK Government is currently legislating for a dedicated scheme which will have effect by 31 May 2020.”
“…a dedicated scheme which will have effect by 31 May 2020.” This was the clear purpose of the Act and the Regulations. Everyone involved in this process knew that this was the case. To attempt to persuade the Court to now interpret the 2020 Regulations as meaning something different by relying on Regina (R and Others (Minors)) v Children and Family Court Advisory and Support Service  1WLR 811, a case which is clearly not on point, is frankly disingenuous and it is disappointing to see such an approach being adopted and maintained by a Minister in the Executive Office.
 Before this Court, the Executive Office sought to argue that irrespective of when it came under an enforceable duty to designate a Department, the apparently unqualified requirement to designate a Department must be interpreted as being qualified so that the Executive Office is permitted to deliberately delay designating a Department for so long as it takes to bring about the resolution of the two political issues referred to above. The Executive Office does not deny that it is under a duty to designate a Department. On the contrary it is asserted on behalf of the Executive Office that it is determined to implement the scheme and designate a Department as soon as these political issues are resolved. The case being made on behalf of the Executive Office is that the Court is not constitutionally entitled or properly equipped to explore, address and adjudicate upon what are essentially political/policy issues. The Executive Office asserts that it is presently refusing to designate a Department in furtherance of promoting a purely political policy agenda and, therefore, the Court should be very wary of engaging in any form of scrutiny of the reasons put forward by the Executive Office for refusing to designate a Department.
 This argument does not withstand even the most cursory form of scrutiny. It is, in reality, arrant nonsense dressed up in the guise of reasoned legal argument. The Court does not have to resort to reliance on the Padfield  AC 997 line of authority in order to dispose of this argument. I accept that the Court must always be wary of engaging in any form of intensive merits-based review when matters of policy and political decision making are concerned. For the avoidance of doubt the Court is not concerned with the merits of the political arguments at the heart of this case. The Court is only concerned with the legality of the actions of the Executive Office and will only consider the political arguments to the extent that it is necessary to do so to determine the legality of the actions of the Executive Office. That legitimate level of scrutiny by the Court leads to only one conclusion. Far from delaying designating a Department in an effort to ultimately ensure that the policy and objects of the scheme are better delivered by changes to the scheme which the Executive Office or one Minister in it wishes to see occur, what is in reality being done is that the Executive Office is deliberately stymieing the implementation of the scheme in order to pressurise the Secretary of State for Northern Ireland to make a different scheme which will be substantially directly funded by Westminster and which will have very different entitlement rules. The actions of the Executive Office cannot be construed as a lawful decision to delay designation of a Department in order to promote the policy and objects of the legislation but rather an unlawful decision to refuse to designate a Department in an effort to have the lawful scheme promulgated in the 2020 Regulations replaced by a very different scheme. Under no circumstances can such stance be sanctioned or left unaddressed by the Court.
 Put in its starkest terms, the Executive Office seeks to persuade the Court that it is legitimate for the Executive Office to deliberately refuse to comply with a legal requirement set out in a legislative scheme promulgated by the Westminster Parliament in order to force changes to that legislative scheme. This is a truly shocking proposition. It demonstrates either wilful disregard for the rule of law or abject ignorance of what the rule of law means in a democratic society. In case it is the latter, I will attempt to set out what the principle of the rule of law actually means in a democratic society. In order to do so, I quote from a passage of the Tom Sergeant Memorial Lecture given by Lord Neuberger, the former President of the UK Supreme Court, on 15th October, 2013 where he stated:
“At its most basic, the expression connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible: that means as available and as understandable as possible. Secondly, the laws must satisfy certain requirements; they must enforce law and order in an effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way. Thirdly, the laws must be enforceable: unless a right to due process in criminal proceedings, a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist.”
I should add that the rule of law also means that no one, regardless of their rank, position or status, is above the law and all must comply with the law as it applies to them and the law as it applies to an individual or group must be applied in a non‑discriminatory manner.
 In 2011 Sir Declan Morgan, the Lord Chief Justice of Northern Ireland, when giving the Fifth Annual Chancellor’s Lecture at the Ulster University said the following about the rule of law:
“The obligation which the law imposes on the courts is to strike a balance between the rights and freedoms of the individual and the protection of the rights and freedoms of the community. Where they arise these are often difficult balances to strike but the duty of the judiciary is to ensure that the balance is struck in accordance with law without fear or favour, affection or ill will. Every party before the court is entitled to a fair and impartial resolution of the dispute.”
 Adherence to these principles is fundamental to the nurturing and survival of democracy. It is all the more important in a post-conflict society for those in positions of leadership to promote, support and demonstrate assiduous adherence to the principles of the rule of law. Without such leadership, the risk of lapsing back into an openly fractured and lawless society cannot be underestimated. That is the importance of the issues at the heart of this case and that it is why it is vital for this Court to fearlessly and impartially proclaim the importance of the principles of the rule of law.
 For the avoidance of any doubt, I make the following specific findings:
(a) The clear, unqualified and unconditional language of paragraph 2(1) of Schedule 1 to the 2020 Regulations can only be interpreted as imposing a duty on the Executive Office to designate a Northern Ireland Department on 24th February, 2020 or as soon as possible thereafter so as to enable the Board to be established and functioning to a limited extent before 29th May, 2020. It is incumbent upon the Executive Office to forthwith designate a Department under paragraph 2(1) of Schedule 1.
(b) The actions of the Executive Office in deliberately refusing to designate a Department and thus stymieing the implementation of the scheme in order to pressurise the Secretary of State for Northern Ireland to make a different scheme which will be substantially directly funded by Westminster and which will have very different entitlement rules constitutes unlawful action on the part of the Executive Office. The Executive Office has acted unlawfully in deciding to refuse to designate a Department in an effort to have the lawful scheme promulgated in the 2020 Regulations replaced by a different scheme. It is clearly unlawful for the Executive Office to deliberately refuse to comply with a legal requirement set out in a legislative scheme promulgated by the Westminster Parliament in order to force changes to that legislative scheme.
 I now turn to address the second limb of the Applicant’s case which relates to the question of funding and the interpretation of paragraph 9(1) of Schedule 1 to the 2020 Regulations. Unlike paragraph 2(1) of Schedule 1, paragraph 9(1) is couched in permissive as opposed to mandatory terms. However, the Applicants argue that, as this is the only means of funding the scheme contained in the Regulations, this permissive provision must in law give rise to a duty to provide grants to the designated Department in order to have an effective scheme established and functioning. The Applicants seek a declaration that the failure of the Executive Office to make such a grant to the designated Department is unlawful and further seek an Order of Mandamus requiring the Executive Office to make such a grant. The Applicants are at pains to stress that they do not seek an Order requiring the Executive Office to make any specific sum of money available to the designated Department but rather seek an Order that the Executive Office makes such grants to the designated Department as the Executive Office determines for the establishment and functioning of the Board.
 The Court is very mindful of the degree of restraint that has to be exercised by the judiciary when scrutinising funding decisions made by public bodies. The Court acknowledges the strength of the arguments advanced by the Applicants that, as paragraph 9 of Schedule 1 sets out the only provisions for the funding of the scheme and as the scheme clearly needs to be funded to properly operate, the language of paragraph 9 must be interpreted as imposing a duty to provide grant funding to the designated Department, particularly in circumstances where the Executive Office has succeeded in securing £2,500,000 from the Department of Finance in order to facilitate the establishment and initial operation of the Board. However, having carefully considered the competing arguments in this case, and having regard to the valuable legal guidance given by Gillen LJ in the case of Bell  NICA 69 I am not persuaded that it would be appropriate to declare that the failure of the Executive Office to provide a grant of funds to the designated Department constitutes unlawful conduct at this stage. Two factors which I take into account in reaching this decision are the degree of discretion vested in the Executive Office concerning funding and the fact that to date there is no designated Department. If paragraph 9(1) is to be interpreted as imposing a duty to provide grant funding, that duty can only crystallise when designation has taken place. In light of what was stated in Court by Mr Humphreys QC on behalf of the Executive Office, I am hopeful that the determination of illegality by the Court in respect of the failure of the Executive Office to designate a Department will set in motion a chain of events which will result in grant funding being provided to a designated Department within a very short timescale.
 However, in order to ensure that the parties are left in no doubt as to interpretation that the Court places upon paragraph 9(1), I make the following specific finding. In circumstances where the 2020 Regulations do not make specific provision for the funding of the Victims’ Payments scheme other than under paragraph 9 of Schedule 1 to the Regulations, the permissive language contained in paragraph 9(1) may in certain circumstances impose a duty on the Executive Office to provide grant funding to the designated Department. Such a duty could arise immediately upon the designation of a Department by the Executive Office and the circumstances in which such a duty would arise would include the situation where the Executive Office has already succeeded in obtaining funding from the Department of Finance for the establishment and operation of the Victims’ Payments scheme.
 These are the findings of the Court in respect of the challenges brought by the Applicants against the Executive Office. In relation to Mr Turley’s challenge against the Secretary of State; arising out of and consistent with my finding that the Executive Office has acted unlawfully in failing to comply with its clear and unequivocal statutory duty to designate a Department, I dismiss this aspect of Mr Turley’s challenge as I find that the Secretary of State has complied with this statutory duty and has made Regulations to establish a scheme under the law of Northern Ireland which provides for one or more payments to be made to, or in respect of, a person who has sustained an injury as a result of a Troubles-related incident. Their meaning is clear and they can only be interpreted as meaning that the Victims’ Payments Scheme would be ready to come into operation from the end of May, 2020.
 I will adjourn this matter for a period of seven days to allow the parties to consider this judgment. At the adjourned hearing I will deal with the issue of remedies and also costs and the parties may wish to address me on the issue of whether costs should be awarded to be taxed on the standard basis or on an indemnity basis.