Belfast Telegraph

Arlene Foster will not pay damages over blocking legacy inquest funding plan

By Alan Erwin

Former First Minister Arlene Foster should not be directed to pay damages over a ruling that she unlawfully blocked a plan to fund legacy inquests, the High Court heard on Friday.

Attorney General John Larkin QC argued that the case against the Democratic Unionist Party leader should also end now without any order for costs against her.

But lawyers for the widow of an innocent civilian shot dead along with eight IRA men countered that Mrs Forster is liable as the "main culprit" for stopping Northern Ireland Executive discussion of an initiative to examine Troubles-related killings.

They also urged a judge to formally compel the British Government and the devolved administration to reconsider releasing financial resources needed to clear a backlog of inquests.

Last week Sir Paul Girvan held that Mrs Foster wrongly took into account the absence of an overall agreed package to deal with outstanding issues from Northern Ireland's violent past.

He said her decision to refuse to put a funding paper on the Executive basis was unlawful and procedurally flawed.

Stormont departments and the Secretary of State were told to look again at whether to provide the extra cash for hearings into nearly 100 deaths without waiting for any political agreement.

The verdict came in a challenge mounted by Brigid Hughes, whose husband Anthony died after being unwittingly caught up in the SAS ambush of an IRA unit at Loughgall, Co Armagh in May 1987.

She issued judicial review proceedings against the Secretary of State, the Stormont Executive and Mrs Foster personally due to her alleged responsibility for the logjam.

Following Mrs Hughes' victory lawyers returned to court to deal with costs and whether any further declarations or orders should be made.

Resisting the bid to have Mrs Foster exposed to any pay-out, Mr Larkin stressed that claims of discrimination and breach of the European Convention rights against her had failed.

"The damages claim against the former First Minister simply isn't (made out)," the Attorney General contended.

"There's no basis for it to continue, so she shouldn't be exposed to any continuation of this litigation - the proceedings against her should finish today (Friday)."

No order for costs should be made against her either, he submitted.

Mr Larkin insisted she was only joined to the case at a late stage, and the claim against her was limited to a brief period of time.

But Barry Macdonald QC, for Mrs Hughes, replied: "The former First Minister was really the main culprit in all this.

"She blocked consideration of the proposal, she promoted the notion that it was permissible and lawful to withhold funding for legacy inquests pending a resolution of overall legacy issues. Costs are appropriate against her."

Counsel representing the Northern Ireland Office, the Department for Justice and the Executive Office also argued against making an order compelling action.

However, Sir Paul suggested there was a need to issue directions with "proper teeth" to ensure no drift in any obligations.

Referring to the applicant's case, he said: "Unless you have a more intrusive order you will end up with a perpetuation of nothing happening - in a context where there's a lack of transparency of how decisions are reached because it might embarrass somebody."

He will give a final ruling on costs and any orders next week.

More than 50 legacy inquests remain outstanding, with potentially 72 more cases on the Attorney General's desk for consideration.

Each of them could cost over £1m to run, the court heard.

Although the Stormont House Agreement includes a £150 million package to deal with all legacy issues, the Government has said financial resources will not be released until political consensus is reached on dealing with the past.

Northern Ireland's Lord Chief Justice, Sir Declan Morgan, had advanced a plan for having all cases dealt with within five years.

In 2016 a paper was drawn up by the DoJ to bid for funds based on Sir Declan's blueprint.

Lawyers for Mrs Hughes went to court alleging Mrs Foster stopped it from being discussed by her Executive colleagues for political reasons.

It was claimed that she would not allow a process which would "rewrite the past" because most of the inquests concerned state killings.

However, the Attorney General insisted she behaved impeccably in preventing an "undercooked" paper going forward at that stage.

She had been focused on balancing the limited £150 million budget for dealing with all outstanding legacy issues, the court heard.

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