Former First Minister Arlene Foster could face a personal legal challenge for allegedly blocking Executive discussion of a funding plan to clear a backlog of inquests dealing with Northern Ireland’s troubled past.
In an extraordinary move, a judge has been asked to add the Democratic Unionist Party leader to respondents in proceedings brought by the widow of an innocent civilian shot dead along with eight IRA men.
The development led to Brigid Hughes’ case being adjourned at the High Court in Belfast on Wednesday.
Her solicitor, Darragh Mackin of KRW Law, said later: “Given the nature of the allegations which include that of discrimination... we felt it appropriate to make the application to join Arlene Foster MLA in her personal capacity.”
Mrs Hughes is seeking to judicially review the administrations at Stormont and Westminster for failing to release the financial resources necessary to hold the legacy inquests.
Her husband, Anthony, died after being unwittingly caught up in the SAS ambush of an IRA unit at Loughgall, Co Armagh in May 1987.
Mrs Hughes’ legal team claim the continued denial of funding is thwarting a five-year strategy devised by Northern Ireland’s most senior judge.
Lord Chief Justice Sir Declan Morgan has called for urgent action to fund his blueprint for having all cases dealt with within five years.
With the cost of the plan estimated at around £10m, the government has said resources will not be released until political consensus is reaching on dealing with the past.
Only one out of 44 outstanding legacy inquests is currently due for listing next year, the court heard.
Opening proceedings, Barry Macdonald QC claimed there was a continuing failure at Stormont and Westminister to allocate money already set aside at part of the Stormont House Agreement.
“Governmental authorities all deny they have any responsibility for the failure to put the necessary funding in place, (but) they don’t suggest anyone else is responsible,” he said.
“As far as legacy inquests are concerned, the situation is that the coroners’ court system in Northern Ireland has effectively collapsed and no-one in government is accepting responsibility for that state of affairs.”
The Department of Justice and the Secretary of State are under a legal obligation to ensure proper examinations into the deaths, it was claimed.
Referring to Sir Declan’s plan for dealing with the backlog, Mr Macdonald alleged: “The problem is that for political reasons the then First Minister (Mrs Foster) blocked discussion of that proposal by the Executive Committee.
“And the Secretary of State has, for political reasons, refused to release the money in the absence of a request from the Executive and in the absence of what is clearly a comprehensive settlement of all legacy issues.”
It was alleged that a press report where Mrs Foster referred to a perceived skewing towards inquests into state killings pointed to a discriminatory approach.
A reference to innocent victims and killings by paramilitary groups indicated a reliance on political opinion about different categories of cases, it was contended.
But as the hearing developed, judge Sir Paul Girvan questioned why the former First Minister was not a respondent due to the nature of the allegations being made against her.
Returning after a recess, Mr Macdonald confirmed he wanted her involved in a personal capacity - a highly unusual move in judicial review proceedings normally centred on departmental and ministerial decisions.
He said: “The application is to join former First Minister Arlene Foster MLA.”
Adjourning the hearing until November, Sir Paul said he would deal with the request in chambers.
Transcripts of all submissions already made will be made available to her legal representatives if the application is granted.