Funding for Legacy Inquests – a good day in the courts at last


Families of the nine men killed by the SAS at Loughgall attended at court yesterday to hear the decision of Sir Paul Girvan in their case. The judicial review was brought by Bridget Hughes, widow of Anthony Hughes, a civilian man who arrived on the scene of the attack and was shot by the SAS. Eight IRA volunteers lost their lives during the attack, namely Jim Lynagh, Padraig McKearney, Gerard O’Callaghan, Tony Gormley, Eugene Kelly, Patrick Kelly, Seamus Donnelly and Declan Arthurs.

The Advocate General decided the families had a right to a fresh inquest in September 2015, as no Article 2 complaint investigation has ever been carried out in relation to the nine deaths. Sir Paul Girvan made clear today that both Article 2 of the ECHR and the common law require inquests are conducted with reasonable expedition and efficiency. Thus far, the State has failed to meet its international and domestic legal obligations on this case. The Judge attributed the delay in dealing with this case and other outstanding inquests to a lack of resources and no efficient system to run them.

The crux of the case is who holds responsibility to fund inquests related to the conflict and who is blocking the release of the necessary funds. RFJ have followed the proceedings closely, as the decision impacts on the 94 families currently awaiting inquests being held. More detail about the legal arguments put forward previously by the families and the state bodies who are the respondents in this case can be found in our previous posts about this case.

In the ruling yesterday, Sir Paul Girvan was clear that whilst the Executive Office (formerly OFMdFM), the Executive, the British Ministry of Justice and the local Department of Justice all have a role to play in delivering a properly functioning coronial system, ultimate responsibility lies with the UK Government. He pointed to the Strasbourg findings against the UK Government, and that a failure to remedy the current situation places the UK Government in ongoing breach of the families’ rights under the law.

The Judge addressed the respective roles of the parties, but tackled the reality that at present, in the absence of a working devolved administration, Secretary of State Karen Bradley needs to act and clear the way for the funds to be released. It is not possible for the UK government to cherry pick the issues they are willing to act on, as in his opinion:

“[T]he sovereign government and the Secretary of State have a power and duty to ensure the lawful proper governance of Northern Ireland and are as accountable to Parliament for that as they are on questions such as whether direct rule should be reintroduced or whether changes need to be made in the constitutional arrangements for the government of Northern Ireland.”

By blocking the discussion of money for legacy inquests, Arlene Foster permitted the UK Government to continue to circumvent their legal obligations. On this issue, our view is that the NIO is the working hand in the DUP glove. The manoeuvrings of both the DUP and NIO were outlined in court, via affidavidts from Mrs Foster, her SPAD Richard Bullick and NIO Director Colin Perry. Mr Perry had a number of telephone conversations with Mr Bullick, to tell him the NIO felt the paper had weaknesses, lacked detail, and it would be difficult to get approval for funding from the Treasury. Mrs Foster confirmed Mr Bullick had feed these concerns on to her and told her the NIO’s view was that the finances behind the paper didn’t stack up. Mr Bullick stated in his affidavit he had no recollection of the matter.

Tellingly, Judge Girvan commented that Mrs Foster ‘did not make any conscientious effort to seek agreement as to what should be done’ adding that those in joint office have a joint responsibility to discuss and try and agree matters. The Judge was clear that the late Martin McGuinness had agreed to the funding proposal plan going on the agenda and being treated as an urgent matter. The correct procedure was followed, and his decision was properly recorded. As was the drafting and production of the paper by the then Justice Minister David Ford working in conjunction with the office of the Lord Chief Justice.

In concluding that Arlene Foster had unlawfully prevented the tabling and discussion of the legacy inquest funding plan, the Judge looked at the factors she had taken into account in making the decision. Mrs Foster gave no consideration to the rights of families in relation to Article 2 and the state legal obligations to deal with inquests in a timely fashion. Instead, she concentrated on what she wanted to achieve politically, linking the resolution of outstanding inquests to the establishment of other legacy mechanisms. This linkage was legally wrong, and the Judge stated that resolution of the inquest funding issue cannot be postponed until there is political agreement on other legacy issues.

Arlene Fosters view, as expressed throughout the 2016 electoral campaign was that dealing with the inquests alone would create ‘an imbalance’ as most outstanding cases relate to direct state killings by British Soldiers. Although the Judge failed to find that the Loughgall families had been subject to discrimination based on their religious or political opinion, he commented that Mrs Fosters decision “if anything, favoured members of the security forces involved in the killings”. Its startling to think the DUP are happy to obstruct the legal rights of bereaved victims from all political and religious persuasions to make sure the actions of the security forces aren’t examined.

LJ Girvan did outline a potential way forward within the judgement, stating that it is legally possible for the DoJ to take steps to present a funding proposal in relation to legacy inquests as “the absence of ministers in these departments does not mean that the departments are in the meantime discharged from their Convention law obligations as public authorities.” To address what he described as “the systematic failure in the coronial system to deal with legacy inquests”, he made clear that the civil servants would need to take into account the previous ministerial approaches, the terms of the judgement and the wider political circumstances, although he emphasised that the political circumstances do not remove the obligations on the parties to  reduce delay in the coronial system. If a paper was forthcoming, the NIO would also have to take account of the judgement and their Article 2 legal obligations in forming a decision.

All parties are back at court on the 16th March at 2:00pm to address what they intend to do to give effect to the judgement.

By Mary McCallan



Link to UTV News report from the court including interviews with the applicant, Mrs. Bridget Hughes and RFJ’s Mark Thompson.