Arlene Foster may be called to court to defend blocking the funding of legacy inquests – a key issue between the DUP and Sinn Fein

With exquisite timing for the renewed political talks, a case of judicial review  in the High Court has resumed which alleges that “former First Minister Arlene Foster unlawfully blocked Executive discussion of a funding plan aimed at clearing a backlog of legacy inquests for purely political reasons.” The charge has lain at her door for almost two years and she may yet be called to court to defend it.   In an earlier session the judge dismissed Mrs Foster’s bid to be removed as a respondent in proceedings brought by the widow of the innocent civilian shot dead along with the eight IRA men  by the SAS at Loughgall police station in May 1987.

The issue couldn’t be hotter. The judge’s comments so far have not been favourable  to Mrs Foster.

He did however, narrow the challenge against her to allegations she unlawfully blocked proposals before they reached the Executive committee.

As first minister was she in effect entitled to deny the chief justice’s   repeated requests to release part of the £150 million specially assigned by Westminster for the purpose of dealing with the  Troubles legacy?

Her basic reasons – although not tied to this particular decision which as I recall was not accompanied by an explanation – are nevertheless clear enough. She is a believer with many others in the concept of “ one- sided justice”. – an idea which the law does not recognise and is fundamentally political. As she put it almost two years ago in an article which supported the similar views of the then secretary of state Theresa Villiers – both of them lawyers.

We have witnessed over the last decade a deliberate and malignant attempt by republicans to re-shape the understanding of the events of the Troubles for future generations.

We have three basic principles on the past. There must be no amnesty for wrongdoers. There must be no rewriting of the past and there must always be help for victims to get justice.

Republicans wish to distance themselves from some of the most horrific terrorist atrocities. They don’t want to be reminded of their evil deeds. We must ensure that attempts to move the blame for these events on to others are not successful.

…    you could also be forgiven for believing that every atrocity carried out by PIRA is now the fault of the state.

Sinn Fein has demanded full disclosure of issues which might even impact on issues of national security. Full disclosure is demanded in the knowledge that terrorist groups will never provide any such disclosure of their own activities.

A one-sided approach to the past will not work. Whilst terrorists want to pore over documents relating to the actions of police officers and soldiers, the victims of republican terrorists are forced to rely on the goodwill of people who won’t even admit they were in the IRA, to tell the truth about the terrorism inflicted upon them.

The men and women who served during the darkest days of the Troubles whether in the army or the police: people like my dad, are so vastly superior to those who skulked around in ditches and behind hedges.

It should go without saying, but we have to keep saying it because truth and memory are under assault.

I will resist any attempt to malign their memory or impugn their integrity. I will not allow a rewriting of the past. The Northern Ireland Troubles were a battle between right and wrong. Between those (of whatever hue or stripe) that would use armed force to further their ends and those who stood in their way.

The men and women of the Army and the police were fighting for the right. We must never forget that.

In the last session of the case, Attorney General John Larkin criticised any attempt to call Mrs Foster to court “ in a personal capacity.”  Both the first and deputy first minster had a veto on what came before the Executive he said. But  Lord Justice Girvan questioned the legal entitlement for any such right to block.

“If that’s the law it seems there’s a complete flaw in the constitutional arrangements,” he said.

“This case may be the case that ventilates the issue and brings it out into the open.”

During the debate Sir Paul Girvan questioned the legal entitlement for any such right to block.

“If that’s the law it seems there’s a complete flaw in the constitutional arrangements,” he said.

“This case may be the case that ventilates the issue and brings it out into the open.”

In November the judge ruled that Mrs Foster remained a respondent for allegedly stopping the issue going before the Stormont Executive and confirmed her application was being dismissed.


Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London