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The Historical Institutional Abuse Inquiry

On 20 January 2017, the Report of the Historical Institutional Abuse Inquiry (HIAI) was published. The Report, which examined the period between 1922 and 1995, found that many children were abused in institutions in Northern Ireland.

The Report recommended that victims of abuse should receive compensation in the form of a lump sum payment and that the Northern Ireland Executive should create a publicly funded compensation scheme to administer this and determine eligibility – the Historical Institutional Abuse Redress Board (HIA Redress Board).

The Report also stated: “Many have urged that a redress scheme be set up as a matter of urgency, not least because many applicants to the Inquiry were elderly or in poor health, and may not live to receive compensation if it takes a long time to set up a redress scheme. Whether the HIA Redress Board is put on a statutory or on an ex gratia basis, we urge the speedy implementation of our Recommendations.”

Furthermore, the Report recommended that the HIA Redress Board should give priority to “applicants who are over 70 or in poor health”.

The collapse of Stormont on 9 January 2017 has meant that there is no capacity for any devolved legislation. Therefore, the HIAI recommendation of financial compensation (despite being universally supported by the political parties) has not been implemented, and no compensation has been paid.

Judicial review proceedings

As a result of the delay in implementing the recommendation in the absence of devolved government in Northern Ireland, JR80 brought judicial review proceedings seeking inter alia an order requiring the Secretary of State for Northern Ireland or the Executive Office to take the steps necessary to establish a redress mechanism.

JR80 averred that he was physically, psychologically and sexually abused as a child at a named institution in Northern Ireland, and asserted that he would qualify for compensation under the terms of the HIA Report’s recommendations.

In the High Court in April 2019, JR80’s application was dismissed on all grounds.

Court of Appeal

It was agreed that the redress scheme in the Historical Institutional Abuse (NI) Bill – which is on the timetable for the House of Commons today – requires legislation and cannot be introduced on an ex gratia basis. However, JR80 said the Bill could be lost with the forthcoming general election and contended that there should be an alternative redress scheme on an ex gratia basis which would not require legislation except to authorise the disbursements.

The Court explained that the prerogative powers to make ex gratia payments are a matter of common law, and can only be exercised through and on the advice of Ministers of the Crown who are responsible to the UK Parliament. However, the exercise of the prerogative powers may be devolved by statute, and in Northern Ireland’s devolved model of government, those Ministers who exercise the prerogative in relation to transferred matters are responsible to the Assembly.

It was agreed that the HIAI and the implementation of the recommendation are transferred matters and devolved to the Northern Ireland institutions; Northern Ireland Ministers have prerogative power to make ex gratia payments from public funds, and the making of such payments is lawful unless it is curtailed or abrogated by statute.

The Executive Office can set up an ex gratia redress scheme

The Court considered whether any NI Department was capable of exercising the prerogative power in relation to the HIAI recommendation in the absence of NI Ministers since 2017. 

In Buick’s Application [2018] NICA 26, the NI Court of Appeal held that a “crosscutting, significant and controversial” decision was one which could not be dealt with by Departments in the absence of NI Ministers.

Following Buick, Parliament introduced the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, which provides at Section 3(1):

“The absence of Northern Ireland Ministers does not prevent a senior officer of a Northern Ireland department from exercising a function of the department during the period for forming an Executive if the officer is satisfied that it is in the public interest to exercise the function during that period”.

The Court of Appeal considered this to mean that the exercise of the prerogative power in relation to the HIAI recommendation is a function of the Executive Office and that the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 permits the Executive Office to exercise the prerogative in relation to the HIAI recommendation – e.g. by establishing an ex gratia redress scheme.

Concluding that the Executive Office can exercise the prerogative to set up an ex gratia redress scheme, the Court said that the Secretary of State should consider giving a direction to the Executive Office under Section 26 of the Northern Ireland Act 1998.

The Court also concluded that Secretary of State has no residual prerogative and executive powers with respect to transferred matters, and no prerogative power to set up an ex gratia redress scheme. The Court declined to make an order directing the Secretary of State or the Executive Office to take steps necessary to establish a redress mechanism.