THE Court of Appeal in the North has fixed dates to hear the legal challenge by two North Belfast relatives of victims of the Troubles to contoversial British government legacy proposals.
Patricia Burns is the daughter of Thomas Burns, who was shot by the British army in July 1972 outside the Glen Park Social Club in North Belfast.
The shooting is not disputed by the Ministry of Defence. Thomas was an ex-serviceman, having served in the British Navy for ten years, returning home to live in Belfast with his wife and four young children.
Ms Burns has an ongoing civil claim against the Ministry of Defence and the Chief Constable of the PSNI. She has also applied for a fresh inquest into her father’s killing, relying upon new evidence provided by ex-soldiers to the now defunct Historical Enquiries Team.
The Attorney General for Northern Ireland refused a fresh inquest despite accepting that the original inquest verdict was wrong in fact and in law. That decision by the Attorney General is also currently the subject of a judicial review challenge.
Also pursuing legal action is Daniel McCready, whose brother Jim McCann was one of six people killed within hours of each other in February 1973 during gun attacks in the New Lodge by the British Army and loyalists.
In February, a fresh inquest was granted by the Attorney General.
Both previously applied to the High Court in Belfast for a judicial review of the proposals published by the Secretary of State in July 2021. Those proposals indicate that the Government at Westminster seeks to close all current avenues of legacy investigations, civil claims, inquests, and criminal prosecutions.
The judicial review application by Ms Burns and Mr McCready was dismissed by the High Court in Belfast in December 2021 on the basis that the challenge was premature pending the publication of the legislation.
The Bill, which was due to be introduced as draft legislation in December 2021, was postponed by the government until 2022 with no future date yet published for the introduction.
The Northern Ireland Court of Appeal has confirmed this week that it will review application for leave to appeal on January 28 and will hear the application for leave to appeal on April 4.
Both Ms Burns and Mr McCready will ask the appeal court, after determination of the issue of leave to appeal, to take the unusual step of providing an advisory judgement on the constitutionality and lawfulness of the July 2021 proposals in domestic and international law.
Both applicants seek this advisory judgement prior to the publication of any such Bill to ensure that the parliamentary debate following the introduction of the Bill will be properly informed.
The applicants seek declarations from the High Court that the purpose of the legacy proposals is unconstitutional, unlawful, in contravention of the Ireland/Northern Ireland Protocol and the British Government’s international obligations under Articles 2 and 3 of the European Convention of Human Rights. They also seek a declaration from the court that the proposals represent interference with the independent functioning of the judiciary in Northern Ireland.
They seek declarations from the High Court that any legislative provision which purports to introduce an amnesty protecting all those suspected of an offence during the conflict from criminal investigation and prosecution would be so fundamentally unconstitutional that it could not lawfully be enacted by Parliament or given effect by the courts and would be in contravention of domestic and international law.
They also seek declaration from the court that any legislative provision which purports to prohibit further civil claims or inquests, or any other court proceedings, or to take steps to terminate such proceedings which are pending before the courts, on the basis that they relate to incidents during the conflict, would be such a fundamentally unconstitutional interference in the role and function of the judiciary that it could not lawfully be enacted by Parliament or given effect by the Courts.
Patricia Burns said: “I have said before and I repeat that we have to take this challenge to these proposals regarding legacy cases because we have every faith that our courts in Northern Ireland will protect the rule of law.”
Daniel McCready added: “We can only hope that our Court of Appeal in Northern Ireland will not let us be treated as second class citizens.”
Nichola Harte of Harte Coyle Collins, Solicitors & Advocates said: “We are confident that the Court of Appeal in Northern Ireland will welcome the opportunity to provide an advisory judgement on the lawfulness and constitutionality of these proposals and their purpose.”
