Christopher Stanley

The Northern Ireland Office, following a public consultation in 2019, has published its Northern Ireland Troubles-related incident victims payments scheme. The scheme will be administered under The Victims’ Payments Regulations 2020.

KRW LAW LLP responded to the public consultation and represents many relatives of victims and survivors of the Conflict.

Many of those we represent may be eligible for payments under the scheme and whilst we broadly endorse the political will to implement a scheme of payments for those injured during the conflict – something to acknowledge harm – there are reservations about the scope of the scheme and the criteria for eligibility.

We are acutely aware that there have been compensation schemes proposed before. The Consultative Group on the Past (CPG) led by Eames-Bradley was effectively ‘sunk’ by one of its many proposals regarding a one-off ‘recognition payment’ of £12,000 because it suggested that there was a moral equivalence between the paramilitary victim and the innocent victim.

To date ‘victims and survivors’ are defined in legislation in the Victims and Survivors (Northern Ireland) Order 2006 as those who:

• have been bereaved as a result of a Conflict/Troubles-related incident;
• have been injured as a result of a Conflict/Troubles-related incident (physically or psychologically);
• provide care for others who have been injured in this way.

The 2020 scheme returns to the toxic issue of the hierarchy of victims of conflict by Regulation 6 ‘Convictions’. This would mean that that those convicted of a Troubles-related incident would not be entitled to a payment.

Further, the Board that will administer the scheme is given the discretion not to make a payment where the conviction would make a payment inappropriate or where the President of the Board considers that the exceptional circumstances of the case, having regard to material evidence, make entitlement to victims’ payments inappropriate.

Material evidence is not defined by the Regulations but it does mean that anyone convicted of taking part in an attack which caused them to be injured – for example bombers who were caught up in their own explosion – would not qualify for a payment.

The President of Board will be a judge appointed by the Lord Chief Justice (Schedule 1 Regulation 4). Whilst there is an a review process available to claimants under Regulation 43 to challenge Board determinations, it is unclear whether decisions will have an onward challenge by way of judicial review and how such a challenge would be funded.

The entitlement to payment under Regulation 5 is also problematic as the definition is that the injury results in permanent disablement and is the assessed degree of relevant disablement amounts to not less than 14 per cent. Not only does this 14 per cent bring into question the process of assessment, whether by face-to-face or paper application, but psychiatric and psychological damage may be latent and difficult to assess in such objective-standard terms.

A Troubles-related incident involves an act of violence or force carried out in Ireland, the UK or anywhere in Europe for a reason related to the constitutional status of Northern Ireland or to political or sectarian hostility between people there (see section 10 (11) of the Regulations (the Northern Ireland (Executive Formation etc.) Act 2019). The time frame is set between 1st January 1966 but before 12th April 2010.

The issue of the eligible victim is compounded by Regulation 7 which states that the the injury is only considered to be caused by a Troubles-related incident if it is suffered by that person if they were:

• present at the Troubles-related incident;
• present in the immediate aftermath of a Troubles-related incident in which a loved one died or suffered an injury;
• responding, in the course of employment, to a Troubles-related incident, in which the person reasonably believed a loved one had died or suffered significant injury.

“Immediate aftermath” includes any time when a loved one is in the same condition as they would have been at the scene of the incident. The key distinction is that you cannot claim if you only heard about an incident; it is necessary to have been physically present. However, if you hear about an incident and then attend as a result you would qualify – you become an excluded secondary victim.

This is an important distinction as it will exclude all those who heard about an incident – a pub bombing for example – but only later realised that their loved one had been killed. It might exclude those who later identified the body of their loved one. It would also exclude who were led to believe their love one died as a result of one cause of incident, such as an explosion, but later – often years later – the true cause of the incident comes to light. This might mean that person is re-traumatised or their family become traumatised, what is known as transgenerational trauma.

For example, Eileen O’Halloran is awaiting judgment in application made in Belfast to have her psychiatric damage as a secondary victim recognised in the law of tort and therefore secure her right to damages. The PSNI and MOD applied to have her application struck out, but a judge said the law in this area was not yet settled. The payment scheme would exclude Mrs O’Halloran. Eileen O’Halloran learned her husband Martin had been seriously injured in a loyalist bomb attack in 1975 while she was in hospital.

Further, the scheme makes no provision for carers, including long-term carers, of those injured during the conflict, many of whom may have spent years looking after those with physical and psychological damage.

KRW reiterates its endorsement of the spirit of the scheme, but we cannot endorse the letter of the scheme as presently presented. As with many other aspects of the out-workings of the legacy in the conflict in Northern Ireland, there needs to be cross-community consensus and cross-party political will to introduce and administer a scheme if the principles set out in Regulation 4 are to achieved.

• Christopher Stanley is a litigation consultant at KRW LAW LLP.