High Court of Justice in Northern Ireland Queen's Bench Division Decisions

                 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

                                 QUEEN'S BENCH DIVISION (CROWN SIDE)

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                IN THE MATTER OF AN APPLICATION BY SHARON LAVERY

                                                     FOR JUDICIAL REVIEW

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KERR J

Introduction

            This is an application by Sharon Lavery, the widow of Paul Lavery, deceased, into whose death an inquest is to be held, for judicial review of the failure of the Lord Chancellor to exercise his powers under Article 1(3) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 to bring into force paragraph 5 of Part 1 of Schedule 1 to the Order.  The latter provision permits legal aid to be granted for proceedings before a coroner but by virtue of Article 1(3) it shall only come into operation on such day as the Secretary of State shall direct.  Since 1982 the power under Article 1(3) has been vested in the Lord Chancellor by virtue of the Legal Aid, Transfer of Functions (Legal Aid and Maintenance Orders) (Northern Ireland) 1982 [SI 1982/59].

The statutory framework

            Article 1(3) of the 1981 Order provides:-

                        "¼. paragraph 5 of Part 1 of Schedule 1 shall come into operation on such day as the [Lord Chancellor] may by order appoint."

Part 1 of Schedule 1 lists the proceedings for which legal aid may be granted.  Paragraph 5 of Part 1 of Schedule 1 states, "Proceedings before a coroner".

            Before 1988, the statutory position in England and Wales was the same as in this jurisdiction, by virtue of section 43 and paragraph 4 of Part 1 of Schedule 1 to the Legal Aid Act 1974.  That power was never exercised and was omitted from the Legal Aid Act 1988.  The power to amend Schedule 2 to the 1988 Act by Regulations has not been exercised so as to bring coroners' inquests within the category of proceedings for which legal aid may be granted.

The reasons for not exercising the power under Article 1(3) in respect of paragraph 5 of Part 1 of Schedule 1

            In an affidavit sworn on behalf of the Lord Chancellor, Laurene McAlpine, the Head of Policy and Legislation Division in the Northern Ireland Court Service explained that in early 1992 the Government considered representations made in the Helsinki Watch Report on Human Rights in Northern Ireland which had recommended that legal aid should be available at coroners' inquests to the families of victims killed by members of the security forces.  The Government rejected this recommendation on the ground that the nature of an inquest did not make it appropriate.

            In the same year the Government considered a similar recommendation made by the Standing Advisory Commission on Human Rights.  The Commission had suggested that legal aid should be available in complex and/or serious cases.  The Lord Chancellor considered that it would be difficult to devise a satisfactory definition of `complex and/or serious cases' which would be workable in practice.  He also took into account the existing demands on the legal aid budget and the fact that legal aid was not available for inquests in England and Wales.  He was also mindful of the inquisitorial nature of inquests among other factors.  The report of the Committee on the Administration of Justice on `Inquests and disputed killings in Northern Ireland' provided a further in 1992 to consider whether to exercise the power but it was decided that it was not appropriate largely for the reasons already referred to above.  The topic was considered again by the Lord Chancellor's department in 1994, 1996 and 1997 with the same result.

            On 19 February 1998 the Lord Chancellor announced in the House of Lords that he had instructed the Northern Ireland Service to undertake a review into arrangements for the administration and provision of legal aid in Northern Ireland and to consider, in the Northern Ireland context, the proposed legal aid reforms in England and Wales.  One of the possibilities being considered is whether legal aid should be extended to coroners' inquests.

            On the basis of this history it is asserted that it has never been decided that legal aid should be permanently withheld from proceedings in coroners' courts.

The judicial review challenge

            It is claimed by the applicant that it was the clear intention of Parliament that legal aid should be available for coroners' courts.  The respondent has frustrated that intention by failing to act on the power given him by Parliament.  Instead of considering when to extend legal aid to inquests the Lord Chancellor has been preoccupied by whether to do so, according to the applicant.

            It was suggested that the approach of the Lord Chancellor has been akin to that of the Home Secretary in R v Secretary of State for the Home Department ex parte Fire Brigades Union and others (1995) 2 All ER 244.  In that case the Home Secretary had decided to introduce a new tariff scheme to compensate victims of violent crime.  The scheme was proposed at a time when sections 108 to 117 of and Schedules 6 and 7 to the Criminal Justice Act 1988 were still in force.  These provisions had codified a pre-existing non statutory scheme.  Under section 171(1) of the Act sections 108 to 117 and Schedules 6 and 7 were to come into force on a day to be appointed by the Home Secretary.  It was held that he was under no legally enforceable duty to bring these provisions into force but that he was required to keep the question of whether they should be brought into force under review and it was an abuse of power for him to exercise the prerogative power in a manner inconsistent with that duty.

            In this case, counsel for the applicant argued, as in the Fire Brigades case, the minister had decided that he was not going to exercise the power to bring the provisions into force.  He was contemplating an entirely different scheme.  The question which he ought to have posed for himself was,' when shall I introduce these measures'; instead, he has approached the question on the basis, `shall I introduce them or some entirely different scheme?'

The Lord Chancellor's approach

            I am satisfied that the Lord Chancellor has not set his face against the exercise of his powers under Article 1(3) of the 1981 Order.  From the averments contained in Ms McAlpine's affidavit, it is clear that the possibility of bringing paragraph 5 of Part 1 of Schedule 1 to the Order into operation has been considered at regular intervals.  The willingness in the past to consider the possibility of introducing the provision together with the current evaluation of whether legal aid should be available for coroners' inquests belie the claim that the Lord Chancellor has decided never to invoke his powers under Article 1(3).

            Unlike the position in the Fire Brigades case, therefore, the Lord Chancellor has not acted in a manner inconsistent with his powers under the 1981 Order.  The extension of legal aid to coroners' inquests by the exercise of those powers remains an option.  As the House of Lords held, however, he cannot be compelled to exercise those powers.  So long as he keeps under review the question whether he should exercise them he is not amenable to judicial review.  I have no reason to doubt the assertion that the possibility of the exercise of the powers remains alive.

            The application for judicial review must be dismissed, therefore.   

                 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

                                 QUEEN'S BENCH DIVISION (CROWN SIDE)

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                IN THE MATTER OF AN APPLICATION BY SHARON LAVERY

                                                     FOR JUDICIAL REVIEW

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                                                                JUDGMENT

                                                                         OF

                                                                     KERR J

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