Response to CAJ Claim at NI Affairs Committee

15 October 2019

Dear Mr Hoare,

Re: Consultation on implementation of the Stormont House Agreement – Supplementary Written Evidence to Northern Ireland Affairs Committee by the Committee on the Administration of Justice

I am writing to you following the supplementary written evidence to the Northern Ireland Affairs Committee submitted by the Committee on the Administration of Justice in response to my previous letter sent to you, dated 12 September 2019.

The Committee on the Administration of Justice has expressed its support for the existing ‘interpretation’ of victim and survivor contained in Article 3 of the Victims and Survivors (Northern Ireland) Order 2006 and its opposition to the definition of victim of terrorism proposed by the Ulster Human Rights Watch.

Article 3 of the Victims and Survivors (Northern Ireland) Order 2006 under the title ‘Interpretation: “victim and survivor”’ reads as follows:

“3. —(1) In this Order references to “victim and survivor” are references to an individual appearing to the Commissioner to be any of the following—
(a) someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident;
(b) someone who provides a substantial amount of care on a regular basis for an individual mentioned in paragraph (a); or
(c) someone who has been bereaved as a result of or in consequence of a conflict-related incident.
(2) Without prejudice to the generality of paragraph (1), an individual may be psychologically injured as a result of or in consequence of—
(a) witnessing a conflict-related incident or the consequences of such an incident; or
(b) providing medical or other emergency assistance to an individual in connection with a conflict-related incident.”

Therefore this ‘interpretation’ applies to any individual who, whether a victim of crime or the perpetrator of the crime, has been bereaved or injured physically or psychologically as a result of a violent incident occurring in or after 1966 in connection with the affairs of Northern Ireland.

It is important to note that the terminology used in the Order is ‘interpretation’ of ‘victim and survivor’, not definition of victim and survivor.

It is helpful in this regard to consider the implications in Northern Ireland legislation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.

Article 27 of the Directive under the title “Transposition” states:

“1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 16 November 2015.
2. When Member States adopt those provisions they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such a reference is to be made.”

The Directive provides in Article 2 under the title ‘Definitions’ a definition of a ‘victim of crime’ which reads as follows:

“(a) ‘victim’ means:
(i) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;
(ii) family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death;
(iii) ‘family members’ means the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis, the relatives in direct line, the siblings and the dependants of the victim.”

As stated in the transposition note relating to the Directive (attached as an Annex to the Explanatory Memorandum to the Victim Charter (Justice Act (Northern Ireland) 2015) Order (Northern Ireland) 2015), the definition provided by the Directive has been implemented in Section 29 of the Justice Act (Northern Ireland) 2015.

The ‘definition’ of the Directive has been further implemented in the Victim Charter, which is a Charter for victims of criminal conduct, which was drawn up in compliance with Section 28 of the Justice Act (Northern Ireland) 2015. It was laid before the Northern Ireland Assembly on 14th September 2015 under section 31(2) of the Act and makes reference in paragraphs 18 to 22 to the definition of a ‘victim’ as mentioned in the EU Directive (2012/29/EU).

It therefore clearly appears that the ‘interpretation’ of ‘victim and survivor’ provided in the Victims and Survivors (Northern Ireland) Order 2006 does not comply with the definition of victim of crime provided by the EU Directive (2012/29/EU).

This ‘interpretation’ would consequently need to be reviewed so that ‘victim and survivor’ designates only an individual who is a victim of crime, not a perpetrator of crime(s), in order to comply with the ‘definition’ provided in EU Directive 2012 (2012/29/EU) that has already been implemented in the Justice Act (Northern Ireland) 2015 and in the Victim Charter.

In view of the above, the definition of victim of terrorism proposed by the Ulster Human Rights Watch aims to address the particular circumstances of Northern Ireland due to intense and sustained terrorist activities over a prolonged period of time. It seeks to cover all events connected with terrorist actions, which fall within the interpretation of terrorism provided in Section 1 of the Terrorism Act 2000, and have resulted in deaths and injuries caused to innocent people, including children. It clearly excludes perpetrators of terrorist acts who were killed or injured as a result of engaging in terrorism.

The Ulster Human Rights Watch submit that the ‘interpretation’ of victim and survivor in the Victims and Survivors (Northern Ireland) Order 2006 must urgently be reviewed and replaced with a definition of victim of terrorism, compliant with the definition of victim of crime that has already been enshrined in the legislation in Northern Ireland.

I would be most grateful if you could bring the content of this letter to the attention of your colleagues on the Committee and take every possible measure to resolve this fundamental issue so as to bring about a proper and lawful definition of victim and survivor.

Yours sincerely,

Axel Schmidt
Advocacy Support Manager
Ulster Human Rights Watch Advocacy Service

Click here to see this letter published on the NIAC website

Sanity at last? – Terrorists Excluded from Victims’ Payments!

The government seems to have been in listening mode when it came to the outcry there was over the possibility of including terrorists in any scheme to help victims of violence during the Troubles.

When it was suggested that those who murdered and maimed might qualify for the same financial package as their victims and families, there was justifiable outrage and indignation.

And rightly so! The idea beggared belief and ran contrary to everything society holds dear.

To even consider a financial reward for the men and women who delivered misery and heartbreak to hundreds of homes was a bridge too far. It was repugnant and deserved nothing but outright rejection.

Ulster Human Rights Watch Advocacy Service, alongside others in our sector, strenuously argued for an end to this nonsensical and ludicrous idea.

The mere suggestion of it served to re-open old wounds and re-traumatise victims and survivors, making them feel that the state was indifferent to their suffering.

For many, it meant the callous re-opening of psychological wounds which they have grappled with for years.

Now, in what must be a welcome development, the government appears to have moved to accept our position on the immorality of rewarding terrorists.

The sea-change is contained in a report drafted by the Northern Ireland Office (NIO) on progress made towards the formation of an Executive which was laid before Parliament by the Secretary of State for Northern Ireland, Julian Smith MP.

The report states that the Northern Ireland Office has been working on a scheme which would include who would benefit from the scheme and who would not, the latter including “those injured in a Troubles-related incident and convicted of playing a role in orchestrating”.

The NIO has now prepared what it terms “detailed advice on the proposed architecture of the scheme”. It follows deeply unhelpful advice that was published by the Northern Ireland Victims and Survivors Commissioner in May.

Sound sense seems to have returned and must now prevail.

There can be no stepping back from this stated position, otherwise victims of terrorists will feel further betrayal and abandonment and that would be a massive injustice.

It is time to move on. There is a relatively tight time-frame to get this issue resolved and if an Executive is not formed by October 21, the secretary of state will make regulations by the end of January that will come into force by the end of May next year.

It is conceivable that eight months from now we should have long overdue clarity and the very real prospect of closure. Regulations should point to entitlements and a time-frame for implementation when people will receive financial assistance.

The NIO Report to Parliament also raised the interesting question of the type of financial package the government has in mind.

There’s a discernible shift in language, from talk of a pension to innocent victims of terrorist violence to the possibility of ‘one or more payments’.

Not unreasonably, we are now asking a series of questions. Is a pension no longer the preferred direction of travel? What are the advantages of a payment or payments system? What would be the monetary level of such a payment? Would it be a one-off or several payments? If the latter, how many payments would there be and over what period of time would they be paid?

The NIO should be able to give us the clarity we require as in the work that it undertook over the summer, officials examined levels and methods of payments, technical and practical details of the scheme and an appeals process.

In the spirit of openness and transparency, it would be a measure of good faith if the NIO moved to publish all relevant information.

Ulster Human Rights Watch is giving its qualified support for the steps set out in this Report to Parliament. We particularly welcome the exclusion clause as our view is that terrorists injured in a Troubles-related incident, and convicted of playing a role in an attack, can never qualify for a pension or any form of payment.

To extend a scheme to them would be abhorrent and hugely insulting to innocent victims of terrorism.

Ulster Human Rights Watch Advocacy Service cannot take things at face value and would hope that the regulations – the end product – will confirm what is stated in the NIO report.

Only when the fine print in the regulations will provide appropriate payments for victims of terrorism effectively excluding terrorists from the scheme would it be possible to say ‘well done’…..for doing what was right.

Click here to view article published in the Newsletter 

Innocent Victims may get Payment not Pension

The Government appears to be moving away from providing pensions to innocent victims of terrorist actions and may instead be looking at one or more payments, according to Ulster Human Rights Watch Advocacy Service.

The charity says a payment instead of a pension is included in a report drafted by the Northern Ireland Office (NIO) on progress made towards the formation of an Executive which has now been laid before Parliament by the Secretary of State for Northern Ireland, Julian Smith.

In follow-up work since the advice published by the Northern Ireland Victims and Survivors in May, the NIO has prepared ‘detailed advice on the proposed architecture of the scheme.’

This work has looked at who would benefit and who would be excluded, the latter including ‘those injured in a Troubles-related incident and convicted of playing a role in orchestrating’.

The work also examined levels and methods of payments, technical and practical details of the scheme and an appeals process.

If an Executive is not formed by 21st October, the Secretary of State will make regulations by the end of January that will come into force by the end of May next year.

Reacting to the latest proposals, Axel Schmidt, Ulster Human Rights Watch Advocacy Support Manager, said: “There is some confusion as to whether or not we are now talking about a payment or payments or a pension. It would be helpful if this could be cleared up by the Secretary of State or the NIO.

“We have consistently opposed pensions for terrorists who victimised innocent people and take some consolation from seeing an exclusion being built into the scheme. Terrorists injured in a Troubles-related incident, and convicted of playing a role in an attack, can never qualify for a pension or payment. That would be abhorrent and hugely insulting to innocent victims of terrorism.

“Clearly, there is considerable work underway to meet the January and May deadlines, but at this stage, Ulster Human Rights Watch is giving its qualified support to what is stated in this Report to Parliament and we look forward to seeing the end product within a matter of months.”

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