Victims of the Troubles are being denied pensions amid an apparent deliberate attempt to "stymie" the scheme for political reasons, the High Court in Belfast has heard.
Mr Justice McAlinden warned that delays blamed on Sinn Féin Deputy First Minister Michelle O’Neill for not designating a department to oversee compensation payments will not be tolerated.
His final verdict in legal challenges by two victims to the continued failure to introduce the scheme will be delivered on Friday.
Jennifier McNern lost both legs in an IRA bomb attack on the Abercorn Restaurant in Belfast city centre in March 1972. She is seeking to judicially review Northern Ireland’s Executive Office over the continued impasse.
Proceedings have also been brought by Brian Turley, one of the so-called 'Hooded Men' detained and subjected to special interrogation methods by the British military in the early 1970s.
Even though legislation was passed for the pension scheme which should have opened for applications in May, it remains in limbo due to a dispute over eligibility for payments.
Under new guidance anyone convicted of causing serious harm during the Troubles would be ruled out.
Sinn Féin claims the British government policy is discriminatory and could unfairly exclude thousands of people within the republican communities.
During the two-day hearing, the judge repeatedly indicated that Ms O’Neill, Sinn Féin’s most senior representative in the Executive, is ignoring the rule of law by her stance.
“An argument in relation to who is entitled to compensation is being used as a reason to delay compliance with a statutory duty,” Mr Justice McAlinden said.
“In doing so individuals who no-one disputes are entitled to claim these pensions, such as Ms McNern who was blown up on March 4, 1972, losing both legs, she has to wait and be kept out of her pension because of a political dispute over who should and should not be entitled to these pensions.
“I cannot think of any other circumstances which would cry out more clearly for a declaration from the court of unlawful behaviour than this scenario.”
The Deputy First Minister made it clear in correspondence to the Secretary of State that she will not designate a department to run the scheme because of concerns about the eligibility criteria, he pointed out.
“What we are dealing with here is a quite clear and obvious legal requirement, which appears to have been disregarded for political ends,” Mr Justice McAlinden said.
“That seems to be the fundamental striking at the principle of the rule of law, and that’s something the court cannot ignore and the court cannot tolerate.
“The court must declare unequivocally the primacy of the rule of law.”
Michael Humphreys QC, for the Executive Office, contended Ms O’Neill had acted in her capacity as vice president of Sinn Féin.
But Mr Justice McAlinden said her position within the Stormont administration, and the obligations to comply with the law, cannot be ignored.
The system was supposed to be in place nearly three months ago, he stressed.
“The only sensible interpretation of what is happening here is that there’s been a deliberate decision to try and stymie this scheme because there’s a fundamental disagreement (over) who can and cannot apply for pensions,” the judge said.
“You cannot mess about and delay taking that step because of a disagreement in terms of who is entitled to apply for compensation.”
Despite efforts made by officials to comply with the law, he said the only remaining barrier is the refusal to assign the scheme to a department.
Rejecting any suggestion of an unlawful delay, Mr Humphreys told the court there was no specific date in the relevant regulations.
The barrister also highlighted progress made in securing £2.5m of funding for IT systems and administrative work. “That is not (consistent) with a body that has thumbed it’s nose at the legislation or doesn’t believe a scheme should be implemented,” he added.
Following closing submissions, Mr Justice McAlinden he will give his judgement on Friday.