JR80's Application
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Judgment Date | 04 November 2019 |
| Neutral Citation | [2019] NICA 58 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 04 November 2019 |
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Neutral Citation No: [2019] NICA 58 Ref: STE11083
Judgment: approved by the Court for handing down Delivered: 04/11/2019
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
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ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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IN THE MATTER OF AN APPLICATION BY JR80 FOR JUDICIAL REVIEW
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Before: Stephens LJ, Treacy LJ and Maguire J
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STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] The major questions in this appeal are constitutional including questions as to
who if anyone has the responsibility for considering and if appropriate
implementing a recommendation to pay compensation to the victims of historical
institutional abuse. If no one then whether the prescribed statutory mechanism of
having an Assembly election should now be implemented. Also whether the present
constitutional arrangements for Northern Ireland are invalid in that decisions are
allowed to be taken by civil servants who are not accountable to the Assembly
[2] The appellant, who we continue to anonymise as JR80, states that he was
physically, psychologically and sexually abused as a child in an institution in
Northern Ireland. The Historical Institutional Abuse Inquiry set up by Northern
Ireland’s devolved Assembly under the Historical Institutional Abuse Act (NI) 2013,
chaired by Sir Anthony Hart, a retired High Court Judge, in its report published on
20 January 2017 found that between 1922 and 1995 many children were abused in
institutions in Northern Ireland. The report contained a number of
recommendations including that the victims of abuse should receive compensation
in the form of a lump sum payment of between £7,500 and £100,000 from a
Government funded compensation scheme to be established by the Northern Ireland
Executive and to be administered by a newly created Historical Institutional Abuse
Redress Board which would determine eligibility (“the recommendation”). The
report urged speedy implementation regardless as to whether the Redress Board
was put on a statutory footing or on an ex gratia basis and suggested that priority
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should be given by the Board to those applicants who were over 70 or in poor health.
However the publication of the report and the recommendation came at a time of
constitutional upheaval in relation to devolved government in Northern Ireland as
on 9 January 2017, some 11 days prior to publication the deputy First Minister
resigned which by operation of section 16B(2) of the Northern Ireland Act 1998 (“the
NIA 1998”) meant that the First Minister also ceased to hold office at that time.
Since that date there has been no First Minister or deputy First Minister. On 2 March
2017 an Assembly election was held. Until that date the Northern Ireland Ministers
other than the First Minister and the deputy First Minister were still in office but
section 16A(2) NIA 1998 provides that the Northern Ireland Ministers should all
cease to hold office on the date of the poll. Since that date there have been no
Northern Ireland Ministers. Also since that date the Assembly has sat on only two
occasions but failed on each occasion to elect a speaker. In effect the devolved
institutions in Northern Ireland have collapsed. There is no Executive. There is no
capacity for any devolved legislation. However the Northern Ireland departments
continue in existence and continue to operate. Despite the collapse of the devolved
institutions the position is that the political parties in Northern Ireland support the
implementation of the recommendation as does the Secretary of State for Northern
Ireland (“the Secretary of State”). However the Office of the First Minister and
deputy First Minister which is now termed the Executive Office states that it can
only undertake preparatory work but has no power to implement the
recommendation. The Secretary of State also states that he has no prerogative power
to bring in an ex gratia compensation scheme. So as yet the recommendation,
despite being universally supported, has not been implemented and no
compensation has been paid to any victim which is to be seen in the context that
many of the victims are elderly, including JR80 and some have died since the end of
2017 which was the date by which Sir Anthony Hart stated the recommendation
should be implemented if the Executive and Assembly acted positively and
energetically.
[3] The applicant, who perceived that the constitutional upheaval in devolved
government in Northern Ireland has led to delay in implementing the
recommendation brought judicial review proceedings seeking amongst other
matters an order requiring either the Secretary of State or the Executive Office to
take the steps necessary to establish a redress mechanism for survivors of historical
institutional abuse. The application was heard by McCloskey J who in an extensive
and comprehensive judgment dismissed it on all grounds under citation [2019]
NIQB 43. The appellant now appeals to this court.
Devolution notice
[4] The devolved institutions in Northern Ireland are constituted under the NIA
1998 as amended which gives legislative control over certain matters (known as
‘transferred matters’) to the Northern Ireland Assembly. Section 4 NIA 1998
provides that transferred matters means any matter which is not “excepted” or
“reserved.” A typical example of an excepted matter is international relations so
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that the conduct of foreign policy is not transferred; that is devolved. It is common
case that the Historical Institutional Abuse Inquiry and the implementation of the
recommendation are transferred matters; that is those matters are devolved to the
Northern Ireland institutions. Section 79 and Schedule 10 provides for notice to be
given when in proceedings issues arise for instance as to whether a matter is or is not
transferred or is or is not within the competence of the Assembly. Those issues are
known as “devolution issues” which by Schedule 10 paragraph 1 NIA 1998 includes
“(d) any question arising under this Act about excepted or reserved matters.” There
were a number of questions in this appeal which fell within the meaning of
devolutions issues such as whether, pursuant to Section 23 NIA 1998 the Secretary of
State for Northern Ireland retains executive and/or prerogative authority in relation
to any transferred matters in Northern Ireland and in particular in relation to the
transferred matter of the implementation of the recommendation. As a consequence
we ordered that notice of the devolution issues be given to amongst others the
Attorney General for Northern Ireland under Order 120 Rule 3 of the Rules of the
Court of Judicature (Northern Ireland) 1980.
Appearances
[5] Mr Macdonald QC, SC and Mr McGowan appeared on behalf of the appellant,
Mr McGleenan QC and Mr McLaughlin appeared on behalf of the Secretary of State,
and Mr McAteer appeared on behalf of the Executive Office. We are grateful to all
counsel for their written and oral submissions. The Attorney General for Northern
Ireland having entered an appearance to the devolution notice provided written
submissions for which we are grateful and also offered to make oral submissions if
requested.
The devolved constitutional arrangements for Northern Ireland
[6] The turbulent historical context in Northern Ireland has given rise to various
constitutional arrangements since 1920 for devolved government.
[7] The Government of Ireland Act 1920 established the different entities of
Northern Ireland and Southern Ireland with both constitutionally remaining part of
the United Kingdom. The 1922 Anglo-Irish Treaty led to the establishment of
Southern Ireland as a separate independent State whilst Northern Ireland remained
part of the United Kingdom with its own devolved institutions. Those provisions
remained in place until the Northern Ireland (Temporary Provisions) Act 1972
introduced “Direct Rule.”
[8] The Sunningdale Agreement led to the Northern Ireland Constitution Act 1973
and the Northern Ireland Assembly Act 1973 under which a devolved power sharing
Assembly was established in Northern Ireland. Those constitutional arrangements
did not succeed which led in turn to the Northern Ireland Act 1974 which again
brought in “Direct Rule” which was envisaged to be temporary but in fact continued
for 24 years.
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