Arrant nonsense dressed up as reasoned legal argument

Sometimes, judges have to spell it out to ministers

Northern Ireland’s deputy first minister, Michelle O’Neill, has agreed to comply with a ruling from the High Court in Belfast. Mr Justice McAlinden ordered the minister to give effect to a compensation scheme for victims of the Troubles in Northern Ireland. O’Neill said that left her with no alternative to designating a government department that would run the scheme.  The first minister, Arlene Foster — who’s O’Neill’s colleague in the power-sharing executive — had previously agreed to do so.

None of that should come as a surprise. But what clearly shocked the judge was the executive’s claim, put forward at a hearing earlier this week, that this was not a matter for the court:

The case being made on behalf of the Executive Office is that the court is not constitutionally entitled or properly equipped to explore, address and adjudicate upon what are essentially political/policy issues. The Executive Office asserts that it is presently refusing to designate a department in furtherance of promoting a purely political policy agenda and, therefore, the court should be very wary of engaging in any form of scrutiny of the reasons put forward by the Executive Office for refusing to designate a department. This argument does not withstand even the most cursory form of scrutiny. It is, in reality, arrant nonsense dressed up in the guise of reasoned legal argument. 

Sinn Féin, O’Neill’s party, claims the scheme would be discriminatory — potentially excluding thousands of republicans with past convictions. The scheme was approved by the Westminster parliament earlier this year while the Stormont government was not functioning and there is a separate disagreement over who should pay for it.

But McAlinden said today that the court was not concerned with political arguments:

The court is only concerned with the legality of the actions of the Executive Office and will only consider the political arguments to the extent that it is necessary to do so to determine the legality of the actions of the Executive Office. That legitimate level of scrutiny by the court leads to only one conclusion. Far from delaying designating a department in an effort to ultimately ensure that the policy and objects of the scheme are better delivered by changes to the scheme which the Executive Office or one minister in it wishes to see occur, what is in reality being done is that the Executive Office is deliberately stymieing the implementation of the scheme in order to pressurise the Secretary of State for Northern Ireland to make a different scheme which will be substantially directly funded by Westminster and which will have very different entitlement rules. The actions of the Executive Office cannot be construed as a lawful decision to delay designation of a department in order to promote the policy and objects of the legislation but rather an unlawful decision to refuse to designate a department in an effort to have the lawful scheme promulgated in the 2020 regulations replaced by a very different scheme.  Under no circumstances can such stance be sanctioned or left unaddressed by the court.

Put in its starkest terms, the Executive Office seeks to persuade the court that it is legitimate for the Executive Office to deliberately refuse to comply with a legal requirement set out in a legislative scheme promulgated by the Westminster parliament in order to force changes to that legislative scheme. This is a truly shocking proposition. It demonstrates either wilful disregard for the rule of law or abject ignorance of what the rule of law means in a democratic society.

After explaining the principles associated with the rule of law, the judge continued:

Adherence to these principles is fundamental to the nurturing and survival of democracy.  It is all the more important in a post-conflict society for those in positions of leadership to promote, support and demonstrate assiduous adherence to the principles of the rule of law. Without such leadership, the risk of lapsing back into an openly fractured and lawless society cannot be underestimated. That is the importance of the issues at the heart of this case and that it is why it is vital for this court to fearlessly and impartially proclaim the importance of the principles of the rule of law.

Having made his position utterly clear, McAlinden adjourned the hearing for seven days. O’Neill, who had known exactly what to expect, issued an immediate statement:

I remain convinced that this scheme will be exclusionary, discriminatory and divisive. Its policy intent was and remains to create a hierarchy of victims, and reinforce the British state narrative around the conflict.

As joint head of government I remain committed to delivering a scheme which is based on equality and open to everyone who was seriously physically and psychologically injured during the conflict.

In light of the court ruling, therefore, I am left with no alternative other than to designate a department. However, that designation will require the executive to work together to secure the additional funds from Westminster for the cost of the scheme and get further clarity on eligibility and applications.

So a crisis that might have threatened the continuation of the devolved government in Northern Ireland has been averted — for now, at least. But you don’t often see judges in the United Kingdom having to explain to government ministers their responsibilities under the rule of law. That’s why this fearless ruling is so important.