Ordering Secretary of State Hilary Benn to set up a public inquiry into the murder of GAA official Sean Brown was legally and constitutionally wrong, the Court of Appeal has heard.
Counsel for the UK Government claimed the judicial direction should not have been made amid attempts to establish that a new truth recovery body is capable of carrying out human rights-compliant investigations into Troubles-era killings.
In December, Mr Justice Humphreys compelled the secretary of state to establish a public inquiry after finding the government remains in breach of a human rights duty to probe the full extent of state collusion in Mr Brown’s murder.
The victim, a 61-year-old father of six, was abducted by a Loyalist Volunteer Force gang as he locked the gates at Bellaghy Wolfe Tones GAA Club in Co Derry.
He was bundled into the boot of his car, taken to Randalstown, Co Antrim and shot dead.
No-one has ever been convicted.
It emerged last year at an inquest that state agents were among more than 25 people linked by intelligence to the killing.
At that stage, the coroner halted proceedings due to the extent of confidential material excluded or withheld on national security grounds.
He wrote to the previous Conservative government requesting the establishment of a public inquiry.
In September, Mr Benn confirmed that those calls had been rejected.
He instead recommended that the bereaved family should engage with the Independent Commission for Reconciliation and Information Recovery (ICRIR), a new body set up under the Northern Ireland Troubles Legacy Act.
The Court of Appeal has already ruled that parts of the legislation breaches human rights law, with the government having too much power to prohibit the commission from sharing sensitive information and uncertainty about effective participation for next of kin.
Even though the Labour government has pledged to repeal the act, it intends to retain the ICRIR and is seeking to appeal the findings made against it at the Supreme Court.
Mr Brown’s widow Bridie (87), mounted a successful High Court judicial review against the decision not to set up a public inquiry into her husband’s death.
Mr Justice Humpreys identified a “clear and unambiguous obligation” to establish such a statutory probe.
He held there was no viable alternative to a public inquiry required to satisfy the state’s investigative duty under Article 2 of the European Convention on Human Rights.
The government is challenging his ruling on the grounds that it raises wider issues of constitutional significance beyond the case.
As the appeal got underway, Tony McGleenan KC said: “The court ought not to have progressed this case on this point while there was live appellate litigation. That is the will of parliament.
“There is a constitutional error in not recognising… we have an appellate process which we are entitled to exhaust and must be exhausted before you make any remedial order.”
At one stage it was put to him by the panel of three appeal judges that the law has to be applied as it currently stands.
Lord Justice Treacy also highlighted Mrs Brown’s advancing years, adding that “the clock is ticking”.
Counsel acknowledged her situation and expressed regret that further litigation was necessary adding “it was an error for the judge to address the case in the way he did”.
Counsel representing Mrs Brown responded that the decision to order a public inquiry was unimpeachable.
Desmond Fahy KC described the killing as “an indelible stain on the body politic of this state”.
He said the fact that, 28 years later, the truth remained “resolutely hidden” from Mrs Brown “should be a source of profound shame and embarrassment”.
The judges were told she was attending court for the 57th time in her legal battle.
Mr Fahy maintained that Mr Justice Humphreys’ verdict and order made in favour of the elderly widow were legally sound.
“In refusing to convene a public inquiry, (the secretary of state) is presiding over a state of illegality,” he added.
“The considered submission of Mrs Brown is that the decision of the lower court is unimpeachable.”
During earlier submissions on behalf of the government, Mr McGleenan contended that the financial bill for an ICRIR process would be just a fraction of any public inquiry while achieving the same outcome.
With the costs of statutory inquiries estimated at £20m, he told the court: “The ICRIR can deliver something comparable, and probably as quickly.”
Lady Chief Justice Dame Siobhan Keegan interpreted those submissions as saying the two options were the same.
“That was the position of the government,” Mr McGleenan agreed.
It was put to him that it is an exceptional case, based on Mrs Brown’s age and the delay in meeting legal requirements to properly probe her husband’s murder.
“Article 2 has been violated for almost three decades and it is continuing,” Lord Justice Treacy observed.
The judge went on to ask: “Who benefits from the delay that’s taken place since 1997? Who benefits from the delay in providing material to the coroner extremely late in the day?
“It’s not the family. The state benefits from the delay, it might be thought.”