Seriously injured victims cannot wait for a judicial review

Luke Moffett, Irish News, 6 June 2020

Thousands of victims were seriously injured and disabled during the conflict in Northern Ireland. Queen’s University academic Luke Moffett – an expert in reparations and victims’ rights – has worked closely with the WAVE Injured Group who have campaigned for a Troubles pension since 2013.

THE establishment of the regulations for the injured victims’ payment scheme in January 2020 was a coup for redressing their long-term suffering.

The passing of the Victims’ Payments Regulation 2020 through Westminster followed a consultation by the Northern Ireland Office in the autumn. Under the regulations the scheme was to open in May to anyone who suffered a serious injury that resulted in permanent disablement as a result of a Troubles-related incident between 1966-2010 in the UK or on more limited grounds if in the EU.

The likely cost of the scheme is to be around £115 million for the first five years, reflecting the back payments and lump sums to victims who choose this, with subsequent years being around £5 million as the numbers of victims reduce.

The hold up however in the Executive Office. As required by the law, it failed to designate a department on February 24 to be responsible for the establishment of the scheme and its staff.

This was to allow the scheme to come into operation on May 29,when victims could apply, and enable application forms to be developed and contracts set up for service providers.

A key bone of contention is whether those who victimised others and were victimised themselves would be eligible under the scheme.

The messy reality of our conflict meant that many people do not fit into neat categories of victim or perpetrator.

Many people know family members who were killed or seriously injured and then got involved in paramilitary groups to protect their community or were convicted and later upon release attacked in their own home. This is not to justify their actions, but to appreciate that there was a breakdown in law and order and trust in the state.

However the law on the victim payments is clear: only those who are injured and convicted in a Troubles-related injury that caused this injury are excluded, (injured by their own hand).

Other individuals who have convictions over two-and-a-half years, are injured and meet the requirements of being permanently disabled are entitled to apply.

They will be assessed by a different panel in the scheme, who will take into account a range of factors including the seriousness of their injury, time since their convictions and any convictions after the Good Friday Agreement.

In our own submission to the NIO consultation we recommended that these members should be selected based on their qualities and experience that are likely to command the respect and confidence of victims, public authorities and others, and are able and willing to exercise their functions in an independent, impartial and sensitive manner.

The president of the scheme can also in ‘exceptional circumstances’ where there is ‘material evidence’ decide that a payment is inappropriate to an injured person with convictions.

There are understandable concerns around what issues will be considered by material evidence. However this only involved legally determined issues on two grounds of an individual has a civil judgment against them (such as the Omagh bomb) or recent terrorist convictions. Few, if any, entitled individuals will fall into these categories.

Some have suggested that material evidence will involve the use of intelligence. However, this is not mentioned in the scheme or the guidance for the Board.

It would also likely to be not human rights compliant for determining compensation, given the case law already decided at the European Court of Human Rights on this issue. On a more practical level, it would be difficult to release sensitive intelligence to a panel made up of a judge appointed lawyer, doctor and layperson.

There is palatable concern that the panel will be a repeated judgment and discrimination of ex-prisoners that they would have to account for the past, after already having served their time.

However, the review panel is to ensure confidence in the system and will be guided by factors that take into account their hardship and harm. No one deserves to suffer such violence and should have access to an effective remedy through this pension to acknowledge and relieve some of the consequences of their harm.

While some have suggested that the pension issue was passed by Westminster it should be their responsibility, this overlooks the importance of local ownership in taking leadership in in dealing with the past. This is not a debate about the conflict and who won.

The victims payment scheme touches on how we see each other and challenges how we can see certain people who suffered and were continually marginalised from recognition of their harm.

Many of injured ex-prisoners never received any compensation and yet were left dependent on family members who became full time carers. These are not simply numbers or some faceless group, they are seriously disabled human beings that live amongst us and continue to carry the burden of the past.

The pension scheme offers a common ground, where the DUP wanted to include only innocent victims and to redefine the 2006 Victims and Survivors NI Order in the same light.

However the 2006 Order definition of a victim is only for the work of the Commission of Victims and Survivors and Victims and Survivors Service.

Other countries around the world, such as Colombia, Nepal and South Africa, prioritise those who have suffered the most as eligible for compensation, not all victims. As the victim payment law states, it is about acknowledging the harm suffered by those injured during the Troubles and to promote reconciliation.

Seriously injured victims cannot wait for a judicial review to force the Executive to comply with the law. We need leadership that reaches across our divide and for once deals with the past together.