The Children's Law Centre's Application
| Jurisdiction | Northern Ireland |
| Judge | Humphreys J |
| Judgment Date | 31 January 2024 |
| Neutral Citation | [2024] NIKB 4 |
| Date | 31 January 2024 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2024] NIKB 4
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: HUM12404
Delivered: 31/01/2024
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY THE CHILDREN’S LAW CENTRE
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
___________
Fiona Doherty KC and Christopher McCrudden (instructed by the Children’s Law Centre)
for the Applicant
Tony McGleenan KC and Philip McAteer (instructed by the Crown Solicitor’s Office) for
the Secretary of State for Northern Ireland and the Northern Ireland Office
Tony McGleenan KC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the Department of Finance
Donal Sayers KC and Bobbie-Leigh Herdman (instructed by the Equality Commission)
for the Equality Commission for Northern Ireland
___________
HUMPHREYS J
Introduction
[1] The applicant in this case is the Children’s Law Centre, a charity and company
limited by guarantee which seeks to protect the rights of children in Northern Ireland
and in doing so provides legal advice and advocacy services. It does so in accordance
with the principles set out in the United Nations Convention on the Rights of the Child
(‘UNCRC’).
[2] In this application for leave to apply for judicial review, it seeks to challenge
the legality of the process which led to the enactment of the Northern Ireland Budget
(No. 2) Act 2023 (‘the 2023 Act’), an Act of the Westminster Parliament which received
Royal Assent on 18 September 2023.
[3] The applicant eschews any challenge to the legislation itself but rather seeks to
impugn the failure to conduct a cumulative equality impact assessment (‘CEIA’) into
the overall impact the budgetary provisions would have on children and young
people.
2
[4] The cornerstone of this challenge is section 75 of the Northern Ireland Act 1998
(‘the NIA’) which obliges public authorities to have due regard to the need to promote
equality of opportunity, including between persons of different age, in carrying out
their functions. In particular, it is contended that this ‘due regard’ duty encompasses
an obligation to carry out a CEIA when formulating budgetary proposals.
[5] The proposed respondents are the Secretary of State for Northern Ireland
(‘SoSNI’), the Northern Ireland Office (‘NIO’), the Department of Finance (‘DoF’),
collectively ‘the state parties’, and the Equality Commission for Northern Ireland
(‘ECNI’).
The Budget
[6] Section 64 of the NIA lays down the procedure for the approval of budget
proposals by the Northern Ireland Assembly. Each financial year, the Minister of
Finance is obliged to lay a draft budget before the Assembly, defined as a “programme
of expenditure proposals for that year which has been approved by the Executive
Committee”. The Assembly may then, with cross-community support, approve the
draft budget with or without modifications.
[7] Northern Ireland has been without a functioning Executive or Assembly since
the resignation of the First Minister on 3 February 2022. It is for this reason that SoSNI
issued a Written Ministerial Statement (‘WMS’) on 27 April 2023, announcing that he
would be setting the budget for Northern Ireland for 2023-24. The WMS set out the
resource and capital allocations for each Northern Ireland department and formed the
basis of the legislation which became the 2023 Act.
[8] This budget has been the subject of criticism from the UN Committee on the
Rights of the Child in its Concluding Observations on the combined sixth and seventh
periodic reports of the UK, published in June 2023. It recommends withdrawal of the
Northern Ireland budget and adoption of a child rights-based approach into
budgeting processes.
[9] The applicant’s evidence is that this budget involves a series of spending cuts
across children’s services, and specific examples are given of the impact of such cuts
in a series of affidavits filed on the applicant’s behalf.
[10] However, it is not the content of the budget that the applicant seeks to impugn.
Rather the challenge is to the failure by the state parties to produce a CEIA prior to
SoSNI’s approval of the budget and the failure by ECNI to proffer accurate and
consistent advice to the state parties in this regard.
[11] On 2 May 2023 Ms Kelly, director of the applicant, wrote to SoSNI, expressing
profound concern at the decisions outlined in the WMS which were said to have been
made without taking account of statutory equality and human rights duties, to the
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