Worth noting the comments of Mr Justice McAlinden in Belfast High Court today, having read the arguments put forward in an application for a judicial review of the NI Executive Office’s failure to introduce the victims payments scheme. Or, rather, Sinn Féin’s refusal to implement the scheme… From the BBC report
“I see it as one element within the Executive Office deliberately choosing to ignore the requirement to comply with the rule of law to express a political advantage,” Mr Justice McAlinden told Belfast High Court.
“That is a fundamentally inappropriate stance to take and it is a stance that this court will have no hesitation in describing in the bluntest terms and in requiring a remedy to be provided in the shortest timeframe.”
He said having read the arguments put forward by Ms McNern’s legal team and the Executive Office, his “initial view” of the issue was unlikely to change as a result of hearing the case in full.
Mr Justice McAlinden adjourned the judicial review hearing for a short period on Monday morning and asked the legal parties to discuss whether they wished to proceed.
Mr Justice McAlinden said he would hear the case in full, if the legal parties adopted “entrenched positions” and wished to proceed.
“What I see here is there has been significant and unjustifiable delay, that delay cannot be allowed to continue and this scheme, which is a scheme enacted by the Westminster parliament by primary legislation, followed up by regulations, this scheme is overdue and it needs to be brought forward and brought into operation as soon as possible for the benefit of those individuals, like Ms McNern and many others, who quite clearly have suffered for long enough without their suffering being appropriately recognised by our society.” [added emphasis throughout]
[How blunt could he be? – Ed] Might I suggest a ‘breach of the Ministerial Code’ bluntness…
1.4. Under the Belfast Agreement and under sections 16, 18 and 19 of the Act, it is a condition of appointment that Ministers of the Northern Ireland Assembly, including the First Minister and the deputy First Minister and junior Ministers, affirm the terms of the following Pledge of Office.
(a) to discharge in good faith all the duties of office; [added emphasis]
(ce) to support the rule of law unequivocally in word and deed and to support all efforts to uphold it;
Adds And from the PA report in the Irish News
The judge said ministers did not have the right to “ignore or stymie” clear legislative provisions.
“The message by doing so is a message undermining the rule of law,” he said.
“In a post-conflict society one thing that every politician should be striving to do is to support the rule of law – not to pick and choose which laws to accept, which laws to adhere to and which laws to ignore.
“Those are fundamental issues for our society and the politicians better get that message, and that message will be delivered by this court.”
Mr Friedman suggested there was a duty on politicians in the north to “grow up”.
The judge replied: “It is a case of politicians in this jurisdiction maturing, maturing into the role that they have sought for years, which is to be politicians.
“It is a role which carries with it a requirement for compromise and a requirement to give and take, but it also carries with it a requirement to respect and promote the rule of law.
“This is not an example of respecting and promoting the rule of law.
“This is a patent example of an attempt to subvert the rule of law for political ends.”
Further from another PA report in the Irish Times
Mr Turley’s barrister Barry McDonald QC said a major point of constitutional importance was at stake in the case, one that affected the governance of Northern Ireland.
He highlighted that the ministerial code of conduct at Stormont required ministers to respect the rule of law.
“What this case demonstrated is that at the very highest level of government, ministers in the devolved administration think that if the law is not to their liking in any particular respect they can choose to ignore or even defy it,” said Mr McDonald.
“In this case, both the First Minister and Deputy First Minister refused to comply with the legal regulations. We know the First Minister on the ground initially that the scheme should be funded by Westminster. And the Deputy First Minister on that ground, as well as on the ground that she didn’t agree with the terms of the scheme.
“We know the First Minister is now prepared to comply but the Deputy First Minister isn’t.”
Mrs Foster did not escape criticism during the hearing, as the judge challenged a suggestion made in the Executive Office’s joint submission that it was entitled not to comply with the regulations while the matter remained an issue of political dispute.
He said both ministers had demonstrated a “fundamental lack of awareness” of the requirement to abide by the law.
On the suggestion that Mrs Foster and Ms O’Neill believe the issue is not a matter for court intervention, Mr McDonald added: “Ministers, in our respectful submission, need to be disabused of that dangerous and wholly unconstitutional notion.”
“An argument in relation to who is entitled to compensation is being used as a reason to delay compliance with a statutory duty,” Mr Justice McAlinden said.
“In doing so individuals who no-one disputes are entitled to claim these pensions, such as Ms McNern who was blown up on March 4, 1972, losing both legs, she has to wait and be kept out of her pension because of a political dispute over who should and should not be entitled to these pensions.
“I cannot think of any other circumstances which would cry out more clearly for a declaration from the court of unlawful behaviour than this scenario.”
The Deputy First Minister made it clear in correspondence to the Secretary of State that she will not designate a department to run the scheme because of concerns about the eligibility criteria, he pointed out.
“What we are dealing with here is a quite clear and obvious legal requirement, which appears to have been disregarded for political ends,” Mr Justice McAlinden said.
“That seems to be the fundamental striking at the principle of the rule of law, and that’s something the court cannot ignore and the court cannot tolerate.
“The court must declare unequivocally the primacy of the rule of law.”
Michael Humphreys QC, for the Executive Office, contended Ms O’Neill had acted in her capacity as vice president of Sinn Féin.
But Mr Justice McAlinden said her position within the Stormont administration, and the obligations to comply with the law, cannot be ignored.
The system was supposed to be in place nearly three months ago, he stressed.
“The only sensible interpretation of what is happening here is that there’s been a deliberate decision to try and stymie this scheme because there’s a fundamental disagreement (over) who can and cannot apply for pensions,” the judge said.
“You cannot mess about and delay taking that step because of a disagreement in terms of who is entitled to apply for compensation.”