Neutral Citation No:  NIQB 30
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
The Rt Hon Sir Paul Girvan
The background to the inquest into the death of Anthony Hughes
The problem of the lack of resources
(a) On 6th November 2014, Nils Muiznieks, the Council of Europe Commissioner for Human Rights, addressed the issue of "resource constraints" in relation to legacy inquests and said:
"It is clear that budgetary cuts should not be used as an excuse to hamper the work of those working for justice. Westminster cannot say 'well, we will let the Northern Irish Assembly deal with this, this is under their jurisdiction'. The UK Government cannot wash its hands of the investigations, including funding of the investigations. These are the most serious human rights violations. Until now there has been virtual impunity for the state actors involved and I think the Government has a responsibility to uphold its obligations under the European Convention to fund investigations and to get the results. The issue of impunity is a very, very serious one and the UK Government has a responsibility to uphold the rule of law. This is not just an issue of dealing with the past. It has to do with upholding the law in general"
(b) On 17th August 2015, in its "Concluding observations on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland" (CCPR/C/GBR/CO/7), the United Nations Human Rights Committee called upon the United Kingdom to "ensure that the Legacy Investigation Unit and the Coroner's court in Northern Ireland are adequately resourced and are well-positioned to effectively review outstanding legacy cases."
(c) In its comments regarding the implementation of the judgment in the Applicant's case, the Council of Europe Committee of Ministers stated on 7 June 2016:
"Regardless of the complexities in the domestic processes concerning funding, it must be strongly underlined that any further delay by the United Kingdom authorities in the provision of the necessary resources and the establishment of the Legacy Inquest Unit will lead to further delay in the conclusion of the examination of these cases by the coroners' courts. As underlined by the Lord Chief Justice, the failure to deal with these cases "has cast a long shadow over the entire justice system". The expertise and authority he commands and the steps taken by him have created a unique possibility for his office to take effective action. It is therefore critical, as the Lord Chief Justice has himself urged, that the United Kingdom authorities do "not to miss this window of opportunity" but instead take all necessary measures to ensure that the legacy system is properly resourced and staffed to enable effective investigations to be concluded."
Following a meeting between 6th and 8th December 2016, the Council of Europe Committee of Ministers commented that it
"… regretted that the necessary resources have not been provided to enable the Legacy Inquest Unit to be established and for effective legacy inquests to be concluded within a reasonable time; strongly urged the authorities to take, as a matter of urgency, all necessary measures to ensure both that the legacy inquest system can be properly reformed, resourced and staffed as proposed by the Lord Chief Justice of Northern Ireland and that the Coroners' Service receives the full co-operation of the relevant statutory agencies to enable effective investigations to be concluded."
Dealing with the issue of resources
(a) Question 5 – In deciding to direct a fresh inquest what test or tests did the Attorney General or Advocate General apply?
(b) Question 6 – What purpose did the Attorney General or Advocate General consider would be achieved by a fresh inquest?
(c) Question 7 – In directing any fresh inquest did the Attorney General or Advocate General carry out any investigation into the following questions:
(a) The estimated duration of such inquest.
(b) The estimated start date of such inquest.
(c) The estimated cost to public funds of such inquest.
(d) Whether fresh evidence had come to light which called for investigations in the course of a fresh inquest.
(e) If any fresh evidence had come to the attention of the Attorney General or the Advocate General in relation to any death whether such evidence had been referred to the PSNI for investigation and whether consideration of the question of establishing a fresh inquest was postponed pending such police investigation.
(d) Question 9 – Against the background of unresolved political questions as to what measures should be taken to deal with the past in Northern Ireland did the Attorney General or the Advocate General before directing fresh inquests consult and/or take the views of the First Minister or Deputy First Minister and/or Executive Committee on any aspect of the issues relating to legacy inquests.
(e) Question 10 – Are the Attorney General and the Advocate General considering directing any additional inquests and if so how many?
(f) Question 11 – How did the Attorney General and the Advocate General identify the cases in which inquests were directed.
The Departmental Solicitor acting for the Executive Office and the Department of Justice did not or could not answer those questions which were considered to be matters for the Attorney General and the Advocate General.
"We would agree with the Attorney General that there are cases where the requirement to hold inquests is not compelled by Article 2 and an inquest can be re-opened for a range of reasons not mandated by the Convention. The reason why Article 2 is in the mix, as it were, and in play in this case is that a consequence of commencing a new inquest or the direction of a new inquest will engage what we describe as the McCaughey trigger arising from the decision of the Supreme Court in McCaughey which means that for those older cases, these pre-2000 cases, before the Human Rights Act came into force, the fact of commencing a new inquest serves to trigger the Article 2 obligation, that it brings it back into play again. … Article 2, I'm afraid, is back in the mix again which is why we have then to adhere as public authorities to these obligations."
The relief sought
(a) an order of certiorari to quash decisions of the FFM, the DoJ and the EO made since January 2016 preventing the Executive Committee from considering and arranging the provision of additional funding within a reasonable time in accordance with proposals made by the LCJ initially announced on 12 February 2016;
(b) an order of mandamus to compel the EO, Executive Committee (if in existence at the time of any order) the DoJ and the Secretary of State and the relevant ministers to arrange the provision of additional funding to ensure the hearing of legacy inquests within a reasonable time in accordance with the LCJ's proposal and specifically to ensure the establishment of a Legacy Inquest Unit; and/or
(c) alternatively, an order of mandamus to compel the EO, the Executive Committee (if any at the time of the order), the First Minister (if any at the time of the order), the MoJ (if any at the time of the order), the DoJ and the Secretary of State for Northern Ireland to reconsider their respective duties regarding the provision of additional funding to the Coroners Service for legacy inquests in accordance with the judgment of the court forthwith.
The applicant's case against the FFM
The FFM's response
The evidence relating to the FFM's impugned decision
"The NIO view that the financial aspects of the proposals seemed insufficiently robust was consistent with my concern that the proposal was advanced in haste. I considered, as I stated publicly at the time, that wider discussion is required to secure a proper basis for progress on legacy issues. That was fair, balanced and in the interests of all. It seemed to me that it would be inappropriate to advance one aspect of the outstanding legacy issues, with uncertain impact and the limited resources that would be available for all legacy issues, in isolation from others. Furthermore, no consensus on the issue was available at Executive Committee level: my understanding of the relevant political calculation was that the proposal would not attract sufficient support if pressed to a vote in the Executive Committee. The then Deputy First Minister did not discuss the matter with me."
She considered it would be inappropriate to place the proposal on the Executive Committee agenda at that time and similarly it would be inappropriate to deal with the matter by way of the urgent decision mechanism. She said that she did not form the view that Article 2 required either that the MoJ's paper be tabled or approved by the urgent mechanism. She denied any discriminatory effect or intention and recognised that the applicant's late husband was an innocent victim. She denied any breach of the Ministerial Code. She stated in paragraph 16 that the recent reporting of her meeting with the Commissioner for Victims and Survivors and a delegation from the Victims and Survivors Forum provided an accurate reflection of her position.
"Arlene Foster said that she had said previously, that they wanted to see things moved together as a matter of balance but that if there was movement on other legacy institutions she would absolutely accept [and] expect that there would be funding for legacy inquests.
The point where she would differ from many members of the forum would be that the two things should be tied together – I think within that room people would have wanted to see legacy inquests move forward as a matter of right."
"Though I have by reason of the passage of time no specific recollection of this matter I assume that the reason the Minister's papers was not placed on the Executive Committee agenda during the limited period remaining of the Assembly mandate was because it would not command the requisite majority in the Executive Committee, the DUP being disinclined to support the advancement of only one aspect of the legacy issues. Para 2.12 requires that consensus be sought. At this time consensus on this issue did not appear to be present."
He stated in paragraph 14 that he formed the view that the proposal from the MoJ should not be supported because there was considerable uncertainty about the cost implications of the proposal; funding should be viewed in the round. In the absence of an overall agreement Her Majesty's Government would not release the money. The MoJ's letter was more of an act of "virtue signalling" than an attempt to resolve the underlying issue. If the issue had been an appropriate priority for the DoJ the Department could have prioritised funding from within its own budget. Mr Bullick averred that he had no specific recollection of a conversation with the FFM but he would be surprised if she had not shared his understanding and analysis. He referred to a telephone call to the NIO which indicated that there was no real prospect of funding being provided due to lack of robustness in the financial projections.
Discussion of the case against the FFM
The issue of the rationality of the decision in respect of the MoJ's paper
The Ministerial Code issues
The discrimination claim
The claim in respect of breach of Convention rights
Conclusions on the case against the FFM
(1) erroneously took into account the absence of an overall agreed package to deal with legacy issues as being relevant to the question whether additional funding should be sought to enable the Coroners Service to carry out inquests compliant with Article 2 Rule 3 and the common law so that inquests could be carried out within a reasonable time, and
(2) erroneously left out of account that there was an obligation on the state authorities to ensure that the Coroners Service could effectively comply with Article 2, Rule 3 and common law in carrying out inquests within a reasonable time irrespective of whether an overall package was agreed to deal with all legacy issues.
I will hear counsel on the appropriate wording of the declaratory relief.
The case against the Executive Office, the Minister of Justice, the Department of Justice and the Executive Committee
The role of the Secretary of State
"An order of mandamus to compel the Executive Office, the Executive Committee (if in existence at the time of the order), the First Minister (if in existence at the time of any order), the Minister of Justice for Northern Ireland (if in existence at the time of the order), the Department of Justice for Northern Ireland and the Secretary of State for Northern Ireland to reconsider their respective duties regarding the provision of additional funding to the Coroners' Service for legacy inquests in accordance with the judgment of the court forthwith."
Not without some justification Mr Macdonald argued that a mere declaration as to the applicant's rights on the matter would not of itself lead to a correction of the situation. He pointed to the repeated failures by the UK authorities to effectively comply with the criticisms made by Strasbourg decisions in respect of the inadequate inquests and investigations arising out of the Troubles. I am minded to issue a declaration in theses alternative terms but I will hear counsel further on the issue of the appropriate remedies in the light of the terms of this judgment in a remedies hearing to be arranged.
(1) The applicant has established that there is systemic delay in the coronial system in respect of the determination of the legacy inquests including those directed by the Attorney General (which in fact represent the majority of legacy inquests) and the legacy inquest directed by the Advocate General in respect of the death of, among others, the applicant's husband.
(2) The legacy inquests are required to be conducted in a manner compliant with Article 2 procedural rights obligation and within a reasonable timeframe under Article 2, Rule 3 and common law.
(3) The current systemic delay is impacting on the applicant as the widow of the deceased in respect of the inquest directed by the Advocate General. Her Article 2 rights are not being vindicated and the delay engages her rights under Articles 2 and 8.
(4) The systemic delay is caused or significantly contributed to by a lack of adequate resources which are needed to speed up the process of carrying out the legacy inquests.
(5) Various public authorities in Northern Ireland have a role to play in ensuring the taking of effective steps to reduce the delays and to advance the timely carrying out of the inquests. These include the Department of Justice, the EO, the MoJ, the First Minister and the Deputy First Minister (when appointed) and the Ministers sitting on the Executive Committee when appointed.
(6) In her decision not to permit the MoJ's paper to go before the Executive Committee the FFM was in error in concluding that it was legally proper to defer consideration of the question of seeking additional funding to deal with the systemic delays in relation to the legacy inquest until an overall package was agreed in respect of the outstanding legacy issues. She was in error in concluding that it was legally proper to defer consideration of the funding issue because in the absence of an overall package the provision of additional funds to deal with the systemic delays in the legacy inquests would favour victims who were not innocent as against innocent victims of the Troubles.
(7) The Secretary of State and central government have recognised the need to provide additional funding for legacy issues and have earmarked the sum of £150m for the purpose. It was recognised that part of that funding would need to be used in relation to dealing with the problems arising from the legacy inquests.
(8) The approach of the FFM and the Secretary of State has been infected by the legally erroneous view that dealing with the question of the provision of additional funds to deal with the systemic problems in respect of legacy inquests should await the outcome of an overall package in respect of all legacy issues. Their approach has been infected by the erroneous legal view that there is a permissible linkage between the issues.
(9) This linkage and the present approach disregard the present and on-going breaches of Article 2, Rule 3 and common law in respect of the legacy inquests which require to be addressed and dealt with irrespective of whether an overall package can be agreed.
(10) Whether or not the devolved institutions recommence operations and new ministers are appointed, the on-going problem of breaches of Article 2, Rule 3 and common law in respect of the legacy inquests requires to be addressed.
(11) While the Secretary of State for Northern Ireland does not have executive functions in relation to the Northern Ireland departments during the absence of a devolved administration, she is responsible for an oversight of the functioning of government in Northern Ireland and is answerable to Parliament in respect of the discharge of that function.
(12) The relevant parties must reconsider the question of the provision of additional funding in light of the fact that finding a resolution of the funding issue cannot be postponed until an outcome to a political agreement on other legacy issues.
(13) The relevant decision-makers who will be involved in decision making in relation to whether additional funds should be provided, in what amount and at what time must take account of the contents of this judgment.