About this case:

• Citation:
  [2018] NIQB 65
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice McCloskey

The Secretary of State submitted that a draft bill to be introduced in Parliament in October would render ‘the proceedings academic’. Emphasising that the applicant, a victim of historical abuse, should be given priority if the case is relisted, Mr Justice Bernard McCloskey granted the Secretary of State an adjournment pending the introduction of the draft bill.

Application for Judicial Review

The applicant, JR80, was subjected to sexual, physical, and psychological abuse at a named institution in Northern Ireland. In the application for judicial review, the primary remedies sought by JR80 included:

• An order of mandamus directing the Secretary of State for Northern Ireland to take the steps necessary to establish a redress mechanism for survivors of historical institutional abuse.
• An order of mandamus compelling the Secretary of State to propose an early date for the poll for the election of the next Assembly.
• An order of mandamus directing the Executive Office (EO) to take the steps necessary to establish a redress scheme.

JR80 averred that he did not participate in the Northern Ireland Historical Institutional Abuse Inquiry (HIA), but that he would qualify for compensation in accordance with the HIA report’s recommendations. While the HIA report urged that the recommendations should be speedily implemented and first payments should have been made by the end of 2017, none of the recommendations have been activated.

JR80 argued that the Secretary of State and/or the EO are both legally empowered and legally obliged to take one or more of the steps identified in the mandatory orders claimed.

Mr Justice McCloskey explained that the challenge raised issues of construction of the Northern Ireland Act 1998, in particular sections 23 and 63, and questions of constitutional law, including the availability of prerogative powers in a context where the Northern Ireland Executive and Northern Ireland Assembly are suspended and the implementation of the HIA recommendations entails action belonging to the realm of a devolved (or, more technically, transferred) matter.

Adjournment

In the present application, the Secretary of State applied to adjourn the substantive hearing of JR80’s legal challenge, until the draft bill is introduced in Parliament in October, which will enable the NI Civil Service to make decisions with legal clarity, while there is no functioning executive in Northern Ireland. Given that the Court would be invited to make a ruling on a statutory provision which is subject to a revision in parliament, the Secretary of state submitting that a Court ruling on the matter would be unsatisfactory from the perspective of all parties.

In an ex tempore judgment considering the application to adjourn the hearing, Mr Justice McCloskey explained that leave was granted by the High Court for JR80’s judicial review proceedings in the context of an ‘indefinite moratorium’ on the executive and legislature of Northern Ireland – creating a constitutional imbalance, and distorting the ‘conventional role of the High Court in judicial review litigation’.

Stating that JR80’s application would be accorded priority if it is necessary to relist post-October, Mr Justice McCloskey acceded to the Secretary of State’s application to vacate the substantive hearing date on the following terms:

1. The costs thrown away by the adjournment of the substantive hearing will be borne by the Secretary of State.
2. The Secretary of State’s legal representatives will provide an updating report to JR80 and the Court by 22 October 2018 or sooner if appropriate.
3. The parties will agree and notify to the Judicial Review Office a relisting date, which will be not later than November 2018 and will be provisional in nature, by 16.00 tomorrow
4. The Court will review this case on 25 October 2018.
5. The Secretary of State’s skeleton argument will be deferred until further direction of the Court given the anticipated imminent material developments.
6. Further case management directions will be provided as and when appropriate.
7. There shall be liberty to apply.

• by Seosamh Gráinséir for Irish Legal News