Hughes (Brigid) Application
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 08 March 2018 |
| Neutral Citation | [2018] NIQB 30 |
| Date | 08 March 2018 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2018 |
1
Neutral Citation No: [2018] NIQB 30
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: GIR10573
Delivered: 8/3/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY BRIGID HUGHES
FOR JUDICIAL REVIEW
________
AND IN THE MATTER OF THE ONGOING FAILURE OF THE EXECUTIVE
OFFICE, THE EXECUTIVE COMMITTEE, THE MINISTER OF JUSTICE, AND
THE SECRETARY OF STATE FOR NORTHERN IRELAND TO PROVIDE
ADEQUATE FUNDING FOR LEGACY INQUESTS
________
The Rt Hon Sir Paul Girvan
Introduction
[1] “Lost Lives” by David McKittrick, Seamus Kelters, Brian Feeney, Chris Thornton
and David McVea traces the origins of the Northern Ireland conflict from the firing
of the first shots, through the carnage of the 1970s and beyond. It provides a
sobering and heart rending account of the fatal casualties of the conflict: police and
army victims, Catholics and Protestants, participants in the terrorist campaigns,
workers and children. As pointed out in the Introduction to that monumental work
between the lines there lie much grief and tragedy. In its last edition published in
2004 within its covers the circumstances in which more than 3700 lives were lost are
recounted. The account bears testimony to what happens to a community which
resolves its differences through violence. The authors expressed the hope that
readers would be affected, as they were, by the powerful message of what violence
can do to individuals, families and communities. It deals with deceased victims of
the conflict but, of course, there were large numbers of other individuals deeply
affected by the so called Troubles, injured in body and mind many of whom
continue to suffer even after the cessation of violence. This is quite apart from the
massive and costly destruction of property and livelihoods in the course of a conflict
in which many egregious crimes occurred.
2
[2] The question of how the legacy of the past should be dealt with is a deeply
troubling and divisive one. It raises issues that can only finally be solved by a
political consensus or by a political decision by the relevant authorities to which
effect is given by legislative change. It is a question on which no agreement has been
found notwithstanding the recognition of its importance and significance. The
Belfast Agreement recorded that “The tragedies of the past have left a deep and
profoundly regrettable legacy of suffering. We must never forget those who have
died or been injured and their families. But we can best honour them through a fresh
start, in which we firmly dedicate ourselves to the achievement of reconciliation,
tolerance, and mutual trust, and to the protection and vindication of the human
rights of all.” The road to reconciliation, tolerance and mutual trust has been a rocky
one and the outworking of the Belfast Agreement and the devolution that flowed
from it has been marked by periodic breakdowns of trust leading to legal or de facto
suspension of devolution. Northern Ireland finds itself once again in such a
situation. The Stormont House Agreement (“the SHA”) in 2014 represented an
attempt by the parties to provide for an agreed way forward. In para 21 of that
Agreement the parties agreed that as part of the transition to long term peace and
stability an approach to dealing with the past was necessary with respects to
promoting reconciliation, upholding the rule of law, acknowledging and addressing
the suffering of victims, facilitating the pursuit of justice and information recovery,
and which was human rights compliant and was balanced, proportionate,
transparent, fair and equitable. They agreed to the establishment of an Oral History
Archive, an Historical Investigations Unit overseen by the Policing Board, an
Independent Commission on Information Retrieval and an Implementation and
Reconciliation Group. They also agreed to take steps to ensure victims and survivors
had access to high quality services. In the autumn of 2015 talks took place dealing
with the implementation of the Stormont House agreement. These resulted in the so
called Fresh Start Agreement. The parties purported to reaffirm their commitment to
the full and fair implementation of the SHA provisions on the past. It was recorded
that while a large measure of agreement had been found on the detail of many of the
issues addressed by the SHA and that indeed progress had been made on most
aspects of the past they had been unable to agree a way forward on some of the key
issues. There remained a need to resolve the outstanding issues and the UK and Irish
Governments would reflect on the options for a process to enable this.
[3] In other conflict situations different ways have been adopted to deal with past
conflict and division. For example, after the Restoration in 1660 following the
traumas of the Civil War both the English and Irish Parliaments enacted Statutes of
Indemnity and Oblivion which provided a pardon in relation to all but the gravest
offences committed during the Civil War. It provided that the Interregnum should
be legally forgotten. It did not pardon the regicides some of whom were executed.
Similar legislation emerged in various American states after the War of
Independence to deal with the actions of former Loyalists. In Spain following the
end of the Franco regime a so called pacto de olvido emerged. This pact of forgetting
was an attempt to put the past behind Spain. It led to the Spanish Amnesty Act
3
drawing a veil over alleged crimes of the former regime. This approach has been
criticised by inter alia the United Nations which urged Spain to repeal the amnesty
as under international law amnesties cannot apply to crimes against humanity. In
other situations the UN has applied a different approach accepting some amnesties
as important steps in restoring peace and strengthening government. Following the
end of Apartheid in South Africa a truth and reconciliation commission was
established to allow an exploration of the past in a way intended in the long term to
reduce tensions and division. That system had its supporters and critics. Finding the
right approach in relation to dealing with the past and with past violence raises
highly complex political and legal questions and requires considerable sensitivity on
the part of those charged with trying to find a way forward.
[4] In the course of what is commonly called the Peace Process political decisions
leading to statutory changes in the law have occurred in this field. Thus, for
example, a Commission for Victims and Survivors was established in 2006. By way
of further example a process of reduction of sentences was introduced by the
Sentences (Northern Ireland) Act 1998 in relation to many terrorist crimes as part of
a package of measures to assist in underpinning the Peace Process. However, subject
to the specific changes introduced to deal with aspects of the past conflict and until
further changes are agreed in the political process and given legislative effect,
existing principles of law must be applied when dealing with existing disputes in
cases raising issues from the past frequently described as “legacy issues.” This
application is a case in point. No counsel took issue with the proposition.
The application
[5] At the heart of this judicial review application the applicant challenges the
ongoing failure of the Executive Office (“the EO”), the Executive Committee, the
Department of Justice for Northern Ireland (“the DoJ”), the Minister of Justice (“the
MoJ”) and the Secretary of State for Northern Ireland (“the Secretary of State”) to put
in place adequate funding to prevent further delays in relation to what have come to
be called legacy inquests relating to deaths during the years of violence. The applicant
contends that this ongoing failure is unlawful for the reasons set out in the amended
Order 53 statement. She contends that the effect of the failure to provide resources
has been to cause inexcusable delay to the listing and completion of numerous
inquests, including the inquest into the death of the applicant’s husband. It is part of
her case that the former First Minister (“the FFM”) unlawfully prevented the tabling
and discussion of a paper put forward by the MoJ which attempted to advance the
securing of additional funding for the coronial system to assist it in progressing the
legacy inquests and reducing systemic delays in the progressing of those inquests.
[6] Mr Macdonald QC SC and Mr Bunting appeared for the Applicant.
Dr McGleenan QC appeared with Mr McLaughlin and Mr Fletcher for the Secretary
of State for Northern Ireland (“the SOS”). Mr Coll QC appeared with Mr McAteer
for the Executive Office, the Executive Committee and the Department of Justice
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