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Turley, Re Application for Judicial Review
Factual and Procedural Background
This appeal concerns the funding of a scheme established by the Victims Payments Regulations 2020, which provides for pensions to persons injured in Troubles-related incidents. At first instance, the trial judge found that the Executive Office acted unlawfully by refusing to designate a Northern Ireland Department to enable the scheme’s progression; this finding was not appealed. The central issue before the Court of Appeal was whether the Executive Office’s failure to provide grant funding to the designated Department also constituted unlawful conduct.
The background includes the Stormont House Agreement (SHA) of 23 December 2014, a political agreement proposing a pension scheme for severely physically injured victims in Northern Ireland. Implementation was delayed due to political disagreements and the suspension of the Northern Ireland Executive in early 2017. The Secretary of State (SoS) for Northern Ireland later requested updated advice on the pension scheme, which was provided in 2019, extending eligibility to include psychological injury.
The Northern Ireland (Executive Formation etc) Act 2019 required the SoS to establish a scheme by regulations providing payments to persons injured in Troubles-related incidents, with deadlines for regulations and commencement. The SoS conducted a public consultation and published a response in early 2020. Devolution was restored in January 2020.
A funding dispute arose between the Northern Ireland Executive and the SoS. The Executive contended that the SoS’s extension of eligibility increased costs that the SoS should fund, citing the Statement of Funding Policy. The SoS and Northern Ireland Office (NIO) maintained that victim payments were a devolved matter to be funded by the Executive. The Executive Office provided some initial administrative funding but no provision was made in subsequent budgets for ongoing victims payments funding.
The Regulations set out the scheme’s operation, including entitlement criteria, the role of the Board in determining eligibility and payments, and the administrative functions designated to a Northern Ireland Department (the Department of Justice). Funding provisions allow the Executive Office to make grants to the designated Department to cover administrative costs and payments, but the language is permissive rather than mandatory.
Legal Issues Presented
- Whether the Executive Office has a legal duty under the Victims Payments Regulations 2020 to provide grant funding to the designated Northern Ireland Department to enable the scheme to operate effectively.
- Whether the Executive Office’s failure to provide such funding constitutes unlawful conduct.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Department of Justice v Bell and the Ombudsman [2017] NICA 69 | Established that a statutory provision requiring a department to pay sums it "appears appropriate" to pay confers a wide discretion on the department, limiting judicial interference in funding decisions. | The court found this precedent involved a different statutory context and was not directly applicable to interpreting the Executive Office’s funding obligations under the 2020 Regulations. |
| R v Secretary Of State for the Environment, Transport and the Regions ex p Spath Holme Ltd [2001] 2 AC 349 | Guidance on statutory interpretation: the court must ascertain the objective intention of Parliament from the language used in context. | Applied to interpret the funding provisions in the Regulations, focusing on the legislature’s intention and statutory purpose. |
| R (on the application of Quintaville) v Secretary Of State for Health [2003] UKHL 13 | Emphasizes that statutory provisions should be interpreted in context to give effect to Parliament’s purpose rather than a narrow literal reading. | Used to support reading the Regulations holistically and purposively, to ensure the scheme’s effective operation. |
Court's Reasoning and Analysis
The Court began by considering the statutory purpose of the Regulations, which was to establish a scheme for victims payments payable to persons injured in Troubles-related incidents. The Regulations impose duties on the Board to determine eligibility and payment amounts and to make payments promptly.
Schedule 1 of the Regulations addresses funding and administration. The designated Department must pay remuneration to Board members and may reimburse expenses, reflecting a mix of mandatory and discretionary obligations. Paragraph 9 allows the Executive Office to make grants to the designated Department for administrative costs and victims payments, using permissive language ("may make grants... as the Executive Office determines").
The Court noted that while the language is permissive, it contemplates a determination by the Executive Office after assessing costs and liabilities. The Executive Office must authenticate or estimate these costs prudently. The Board, by contrast, must pay all sums it receives in connection with its functions to the Executive Office, which is mandatory.
The Court reasoned that it would defeat the Regulations’ purpose if funding victims payments were purely discretionary for the Executive Office, as this would frustrate the Board’s obligation to make payments promptly. Thus, a legal duty arises on the Executive Office to fund victims payments and lump sums once it has made the necessary accounting and budgeting assessments.
The trial judge had declined to declare unlawful conduct by the Executive Office in failing to provide funding, influenced by the discretion recognized in Bell. However, the Court distinguished Bell as involving a different statutory scheme and found that the permissive language in Paragraph 9(1)(b) does not preclude a duty to pay.
The Court concluded that a duty to provide grant funding arises immediately upon designation of a Department and where funding is required to enable the scheme to operate, especially if initial funding has already been obtained from the Department of Finance.
Holding and Implications
The Court declared that there is a legal duty on the Executive Office to fund victims payments and lump sums under the 2020 Regulations so that the Board can make payments in accordance with the statutory scheme.
The Court expressed no view on the broader funding dispute between the Northern Ireland Executive and the Northern Ireland Office. The appeal was adjourned to allow the parties time to reach an agreed solution. If no agreement is reached, the case will be relisted with the Department of Finance as an additional party.
The decision directly affects the parties by clarifying that the Executive Office cannot refuse funding without breaching its legal duty, but it does not establish a wider precedent beyond the statutory context of these Regulations.
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