Hughes, Re Judicial Review

Factual and Procedural Background

This judicial review application concerns the failure of various Northern Ireland executive bodies and officials to provide adequate funding to address delays in legacy inquests related to deaths during the Troubles. The applicant challenges the Executive Office, Executive Committee, Department of Justice for Northern Ireland, Minister of Justice, and Secretary of State for Northern Ireland for failing to secure sufficient resources to avoid inexcusable delays in legacy inquests, including the inquest into the death of the applicant's husband. The applicant also challenges the former First Minister's decision to prevent a funding proposal from the Minister of Justice from being tabled and discussed by the Executive Committee.

The applicant's husband died in 1987 in an incident involving security forces and IRA members. Despite his death occurring over 30 years ago, no Article 2 compliant investigation has been completed. Previous inquests were delayed and found inadequate by the European Court of Human Rights, which ruled that the UK had breached Article 2 due to shortcomings including lack of independence, public scrutiny, disclosure, and delay. A fresh inquest was ordered in 2015 but has not yet commenced.

The delays in legacy inquests have been attributed primarily to lack of funding and resources. The Lord Chief Justice has repeatedly highlighted the inadequate resourcing of the Coroners Service and proposed a dedicated Legacy Inquest Unit, but funding has not been provided. International human rights bodies, including the Council of Europe and United Nations, have urged the UK government to adequately resource the legacy inquests.

The Stormont House Agreement and subsequent Fresh Start Agreement acknowledged the need for addressing legacy issues and allocated £150 million for legacy matters, including inquests, but this funding has not been drawn down. The Minister of Justice prepared a paper seeking additional funding, which had support from some ministers but was blocked by the former First Minister from being placed on the Executive Committee agenda. The applicant contends this blockage was unlawful and discriminatory.

The case raises complex issues concerning the legal obligations of devolved and central government bodies to ensure timely inquests, the role of the Secretary of State in the absence of a functioning devolved administration, and the legality of the former First Minister’s decision-making.

Legal Issues Presented

1. Whether the failure of the Executive Office, Executive Committee, Department of Justice, Minister of Justice, and Secretary of State to provide adequate funding for legacy inquests constitutes unlawful delay and breaches of Article 2 procedural obligations under the European Convention on Human Rights.
2. Whether the former First Minister’s decision to prevent the Minister of Justice’s funding proposal from being considered by the Executive Committee was unlawful, including whether it involved taking irrelevant considerations into account or discriminatory conduct contrary to the Northern Ireland Act 1998 and the Ministerial Code.
3. The extent of the Secretary of State’s powers and responsibilities to provide funding and ensure compliance with human rights obligations in the absence of a functioning devolved administration.
4. The justiciability of the former First Minister’s decision and the appropriate remedies for any unlawful conduct or breaches of Convention rights.

Arguments of the Parties

Applicant's Arguments

• The state authorities owe a duty to ensure timely conduct of legacy inquests and must provide necessary resources to fulfill this duty.
• The former First Minister unlawfully prevented the Minister of Justice’s funding proposal from being considered, taking irrelevant considerations into account and breaching the Ministerial Code.
• The failure to provide funding has caused inexcusable delays violating Articles 2, 8, and 14 of the European Convention on Human Rights.
• The Secretary of State has the power and responsibility, especially in absence of devolved government, to ensure funding is provided to address the delays.
• The refusal to consider funding was discriminatory against the applicant on grounds of religious belief and political opinion.
• The applicant seeks orders quashing the unlawful decisions, mandamus to compel funding provision, declarations of breaches, and damages.

Former First Minister's Arguments

• The decision not to include the funding proposal on the Executive Committee agenda was due to lack of agreement between the former First Minister and Deputy First Minister.
• The proposal was advanced hastily, lacked robust financial analysis, and was a political move unlikely to gain support.
• The former First Minister did not consider Article 2 obligated her to table the proposal and denied any discriminatory intent or breach of the Ministerial Code.
• She contended that failure to act (not tabling the paper) is not an act and cannot constitute a breach of Convention rights.
• The timing and prioritization of legacy issues was a political judgment subject to light touch judicial review.

Secretary of State's Arguments

• Responsibility for compliance with Article 2 obligations lies with devolved authorities alone.
• The Secretary of State has no power to unilaterally allocate funds or direct how Northern Ireland departments spend money.
• Section 26 of the Northern Ireland Act 1998 does not empower the Secretary of State to secure additional funding for legacy inquests.
• Allocation of resources is a matter for devolved administration and political discretion, not judicial direction.
• The absence of ministers does not confer executive powers on the Secretary of State over devolved matters.

Other Respondents' Arguments

• The Executive Office, Executive Committee, and Department of Justice emphasized the need to identify individual public authorities liable for breaches and stressed the devolved administration’s responsibility for compliance.
• They argued that the lack of a functioning Executive Committee complicates the decision-making process but does not absolve the devolved departments of their obligations.
• Senior civil servants can function in absence of ministers but are limited in policy-making powers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kelly and others v United Kingdom (App. No. 30054/96)	Article 2 procedural obligation requires effective investigation into deaths involving state agents.	Confirmed shortcomings in previous investigations and established the need for Article 2 compliant inquests.
Re McCaughey [2012] 1 AC 725	Article 2 imposes freestanding procedural obligations on investigations into deaths, even pre-dating Human Rights Act 1998, if procedural steps occur after 2000.	Confirmed that legacy inquests must comply with Article 2 procedural requirements.
HM Advocate v R [2004] 1 AC 462	Distinction between acts and failures to act in relation to Convention rights.	Used to argue failure to put paper on agenda is not an act violating Convention rights.
Belfast City Council v Misbehavin Limited [2007] UKHL 19	Focus on whether claimant is victim of breach of Convention rights, not whether decision-maker properly considered Convention obligations.	Applied to assess whether applicant was victim of any breach by former First Minister.
R v Secretary of State for the Home Department Ex Parte Bina Regendra Patel [1995] Imm AR 223	Delay in judicial review applications may be excused if serious legal defect found.	Considered in relation to delay in joining the former First Minister as respondent.
Ex parte Middleton [2004] 2 AC 182	Inquests should be assumed to discharge State’s procedural Article 2 obligations absent criminal proceedings.	Supported the obligation for timely and effective inquests in legacy cases.
Re De Brun [2001] NIQB 3	Ministerial Code breaches may be political judgments outside justiciability.	Distinguished political judgments from legal breaches of Ministerial Code.
Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240	Court’s reluctance to interfere with executive decisions on public expenditure.	Applied to limit court’s role in directing funding decisions for legacy inquests.
R v Secretary of State for the Environment Ex Parte Hammersmith and Fulham LBC [1991] 1 AC 521	Judicial review of expenditure decisions is limited due to democratic accountability concerns.	Supported deference to executive discretion on funding allocations.
Pro-Life Alliance [2003] UKHL 23	Court’s limited role in reviewing complex policy decisions involving public expenditure.	Reinforced principle of judicial restraint in funding matters.
Bancoult (No. 2) [2008] UKHL 60	Polycentric character of official decision-making limits courts’ practical competence in assessing merits.	Used to emphasize limits of judicial intervention in political and funding decisions.
Re Solinas [2009] NIQB 43	The Executive Committee has no executive power; executive power lies with ministers and departments.	Clarified the locus of executive power relevant to this case.

Court's Reasoning and Analysis

The court recognized the systemic and persistent delays in legacy inquests, attributing these delays principally to inadequate funding and resources. It accepted that the state has a legal obligation under Article 2 of the European Convention on Human Rights, Rule 3 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963, and common law to ensure timely and effective investigations into deaths involving state agents.

The court found that the former First Minister made an unlawful decision by refusing to allow the Minister of Justice’s funding proposal to be placed on the Executive Committee agenda, erroneously linking the funding issue to the need for an overall political agreement on legacy matters. This linkage was legally flawed because it delayed consideration of funding necessary to comply with procedural obligations.

In assessing the Ministerial Code claims, the court distinguished between political judgments, which are generally non-justiciable, and breaches of the Ministerial Code proper, which impose a statutory duty on ministers. The court found procedural flaws in the former First Minister’s decision-making, including failure to conscientiously seek agreement with the Deputy First Minister and lack of openness and reasons.

The discrimination claim under section 24 of the Northern Ireland Act 1998 was rejected because the decision did not amount to direct or indirect discrimination against the applicant on grounds of religious belief or political opinion.

Regarding the Secretary of State’s role, the court agreed that in a functioning devolved administration, responsibility for funding and compliance with Article 2 lies primarily with devolved authorities. However, the current absence of a devolved administration creates a governance vacuum, complicating the exercise of executive powers. The court noted that the Secretary of State does not have executive powers over devolved matters but retains a duty of oversight and accountability to Parliament.

The court acknowledged the complex constitutional and political context, including the need for political consensus to resolve legacy issues, but emphasized that legal obligations to conduct timely inquests cannot be indefinitely postponed awaiting political agreement. The court recognized the limits of judicial intervention in public expenditure decisions but stressed that the relevant authorities must reconsider funding provision in light of the legal obligations and this judgment.

Holding and Implications

The court’s final decision includes the following core rulings:

• The former First Minister’s decision to exclude the Minister of Justice’s funding proposal from the Executive Committee agenda was unlawful because she took into account irrelevant considerations and failed to properly consider the state’s obligations under Article 2, Rule 3, and common law.
• The systemic delays in legacy inquests caused by lack of funding violate procedural obligations under Article 2 and common law, impacting the applicant’s rights as the widow of a deceased.
• The Secretary of State and other public authorities must reconsider the provision of additional funding for legacy inquests without linking it to an overall political agreement on legacy issues.
• The absence of a functioning devolved administration creates a governance vacuum complicating funding decisions, but does not absolve public authorities from their legal obligations.

The court will hear further submissions on the appropriate declaratory and mandamus relief. No new precedent was set beyond the application and clarification of existing law concerning Article 2 procedural obligations, ministerial duties under the Ministerial Code, and the constitutional framework of devolved government in Northern Ireland.