Written evidence submitted by Queen's University Belfast Human Rights Centre (SHA0024)

The Troubles/conflict in and around Northern Ireland has had life-changing consequences for many individuals over the past forty years. Alongside the more than 3,700 individuals killed, thousands suffered psychological and physical harm.[1] Many relatives lost opportunities related to career development and education as they took up the care of their loved ones. The recent growing interest in dealing with the past has focused almost exclusively on those who lost their lives, to the detriment of the injured victims and their carers who have seen their needs overlooked.

While the Stormont House Agreement called for further work on a pension for the severely injured,[2] the 2016 report by UN Special Rapporteur Pablo de Greiff found the overall lack of progress with this regard to this issue illustrative of the general standstill on reparations.[3] Reparations were indeed seen as the area of least achievement in relation to dealing with the legacy of the conflict/Troubles. Although the patchwork of services, compensation and assistance that has been made available to victims employed considerable resources, the piecemeal and ad-hoc fashion in which these have been delivered is striking. The uneven treatment of victims, which revealed distinctions that went beyond the service men and civilian divide, is the most noteworthy dimension of reparations in this context. The geographical distribution of services favours victims residing in urban centres and gender-related aspects of harms are all but ignored as things stand today.

The pension for severely injured victims finds support in many sectors. Marie Breen-Smyth first raised it in her research on injured victims.[4] It was then developed by Stuart Magee on behalf of WAVE[5] and later supported by the Commission for Victims and Survivors.[6] As a consequence, the WAVE group also launched the Injured Campaign “Recognition for All” and the WAVE Injured Group that has been very active in promoting the pension issue.[7]  Following his visits in 2015/2016, the UN Special Rapporteur Pablo de Greiff pointed to that the issue of pensions “urgently needs resolution”.[8] It has been reiterated by others more recently.[9]

              This brief pools a number of resources. It builds on research carried out by a team of researchers based at Queen’s University Belfast in March-April 2017 with injured victims and interested stakeholders.[10] We have also included some preliminary results from the Reparations, Responsibility and Victimhood project, an ongoing research project anchored at Queen’s University Belfast funded by the Arts and Humanities Research Council.[11] The respondents of these two projects were injured victims or carers of injured victims, advocacy and service providers within victims groups or organisations working with victims, psychiatrists and clinical psychologists, as well as members of the Commission for Victims and Survivors, and Victims and Survivors Service. The brief is divided in three sections. It begins by outlining why a pension is necessary, making a case based on the views of victims, carers, and support workers. The pension is regarded by interviewees as a source of financial security as well as a matter of repair based on rights. The second section discusses the political impasse that the pension initiative has encountered with regard to the definition of the beneficiaries, which would potentially include ex-combatants and individuals who injured themselves. Finally, the third section responds to these critiques by proposing three alternative models of restricting the eligibility criteria. We believe that the pension is a crucial and central measure to address the daily consequences of the Troubles/conflict and must be part of any comprehensive approach to dealing with the past.

Why a Pension for Severely Injured?

In international law, reparations cover restitution, compensation, rehabilitation, satisfaction, and guarantees of non-recurrence.[12] Seriously injured victims consider financial needs to be a priority. Given their injuries, many could not return to work, contribute towards a pension, or seek education. The same is true for their carers, the overwhelming majority of whom are women, who saw their career opportunities diminish as they took over the full-time or part-time care of life partners, siblings, or partners. They relied on benefits or compensation awards for their subsistence. While the original harm they suffered gave rise to particular physical and psychological needs that, in many cases, were not the subject of appropriate care or service provision, their needs have also changed since they were first injured. The health of these victims is deteriorating as they become older and the lack of financial security is causing them further stress. Some severely injured victims also emphasize the need for securing the financial protection of their families and carers.[13] 

Many of those who suffered harm as a result of the conflict/Troubles spoke about feeling isolated either because there are no support networks in their area or they do not have the means to reach these as they cannot afford the transportation.[14] It is well-known that social isolation puts both victims’ and their carers’ health at risk.[15] Thus, it comes as no surprise that victims and victim caseworkers alike relate pensions to quality of life and dignity:

“[Money] can’t buy happiness, it can’t buy peace of mind, it can’t lift a really heavy dark cloud when you’re feeling down but I’ll tell you what it does do, it gives people the option of saying do you know what, I think I’ll just get out of the house and go for a coffee. I think I’ll just, it’s Friday night, I think I’ll take my partner for a meal, you know, let’s go to Harvester or something. Lots of times now people can’t do that.”[16]

“…having a quality of life is way more important to these people than the whole truth and justice thing, which is why, I’m sorry I keep bringing this back to the pension, it’s not the only issue that we fight on but it really for them is about saying look, we want to be able to live independently, we’re getting older, we don’t want to be dependent on State handouts forever, you know, we just want a wee bit of….to be able to live out our lives with a bit of dignity.”[17]

They argue that the reliance of victims on benefits has meant that they are vulnerable to sudden changes in the structure of assistance packages. This was the case, for instance, with the means-tested financial assistance scheme accessible by those bereaved, injured, or their carers. Due to increasing claimants from 1,754 in 2013/2014 to 2,670 in 2015/2016, the amount dropped for each household from £1,040 in 2013/2014, £1,000 in 2014/2015, £830 in 2015-2016, and £350 in 2016-2017.[18] The precarious position that victims found themselves once their benefits were reduced as a consequence rendered them dependent on help from family members and friends or having to make the difficult choices between basic needs like heating and physical therapy. As the assistance victims receive is often means-tested, some face difficulties as a result of the benefits they receive. As some respondents put it,

P1: “With the welfare, they are bumping you up the queue and giving you an extra lift up. They are making an exception here. I get the £1500 for chronic pain and that pays the physio. Then it was £750, which I paid the rates with.”[19]

P2: “To be honest with you, the £750, as he says, I’d pay my rates too. I have to. My rates are a hell of a lot bigger. I live in Bangor and they’re about £1400 per year.”[20]

Receiving a non-means tested pension would not only give these victims a level of independence that they currently do not enjoy, but it would also ensure the financial security of their carers and their families,

“if I was to die in the morning she would have nothing, my police, I was in the police, my police pension is now worth, I phoned up about it way back there a month or two ago, it’s worth £11 a week to her if I were to die so that’s what she would have, there’s no other income then … she had to give up her career for me, for to look, she’s a full-time carer and she would have nothing … I’d really be concerned for that, we’ve a nine-year-old son like so there’s a lot of spending been going on in the house. ”[21]

Some respondents underline that a pension would go a long way towards repairing the harm suffered by the severely injured. The report of the UN Special Rapporteur Pablo de Greiff bundles together a series of measures that have been made available to victims[22] to highlight that reparations are lagging behind.[23] While current assistance packages and services as well as the compensation previously offered to (some) victims are “nibbling around the edges of reparation,”[24] the piecemeal ad-hoc way in they have addressed harms clearly distinguishes them from genuine reparations. The report outlines that victims should qualify for reparations “solely on the basis of the violation of their rights,”[25] as does this support worker who explains that a pension is,

“… an entitlement then based on the level of harm that you have suffered, which is different from getting a discretionary small grant on a year by year basis. In terms of its impact, in terms of the entitlement, in terms of what it can do for people’s lives I think it would be very significantly different.  But it does feel to me ... that part of the issue is there have been different schemes to address different things at different times in a very inconsistent way really. So, we’ve all met people who, in the very early days of the Troubles got tiny amounts of money to pay for a funeral or to supposedly pay them for the financial loss caused by the loss of their father or a child or whatever, which I think is still painful to people in terms of what it said about the value or not value of somebody they had lost. 

              And I think at other times the schemes are somewhat better. So, there isn’t an even playing field, depending on when you suffered injury or loss. And also, obviously, there isn’t an even playing field in terms of you know, some people who suffered if they were employed by the State might have got a pension from their employer as a consequence of their loss, other people who weren’t employed by the State didn’t.  So, the fact that it’s patchy, the fact that it depends a lot of it on the type of harm you suffered and when you suffered it and other things like your circumstances, I think leaves that unevenness which doesn’t feel fair or like a real systematic reparations process, even though a fair bit of money and effort has gone into it in different ways.”[26]

Where current programmes are based on needs, and, as far as economic benefits are concerned are usually means-tested, the “pension is separate from need; a pension would be recognition of means lost,” as one Executive official put it.[27] Not only have victims seen their assistance change suddenly as outlined above, but for some the fact that they receive cash transfers as a matter of social welfare is problematic in itself. This group believe that the pension should respond to the violation of a right. Thus, for the pension to provide victims with genuine acknowledgement, the amount is as important as is its permanence. Doing anything else would risk further inflaming the feeling of injustice that many of the victims have. [28]

The Political Impasse

Despite the obvious benefits for victims, the pension proposal has come up against difficulties to gather the necessary political support.[29] As one interviewee put it, “politicians see Northern Ireland as political suicide [as] the minute they start talking about Northern Ireland and pensions and everything else they think I’m in trouble here.”[30] The impasse rests primarily on the eligibility criteria for the potential pensions programme. The controversy is two-pronged. On the one hand, it has been pointed out that that such a pension might become available to those who have criminal convictions for crimes committed during the Troubles/conflict. On the other hand, it is a matter of some discussion that some applicants may be individuals who were injured as a result of their own actions.

For some respondents, this controversy is captured by the issue of choice. For instance, one respondent shared his views on the issue of the pension in reference to ex-combatants,

“[Name redacted] has a choice whether he went out and planted those bombs, people have a choice whether they go out with a firearm and kill innocent people or take pot-shots at the security forces, and if they’d been injured and they think they’re due pensions […]. They shouldn’t come out of the government pot, should we say because they’re terrorist. Like I’ve said, we’ve already rewarded people by not sending them to prison. So, you’ve murdered ten people, you’ve cost the country millions of pounds in healthcare, in compensation, in ongoing costs but I’ll tell you what, we’re going to reward you and we’re going to give you a pension. Nah, not for me.”[31]

Others identify the problem with basing such a pension on a principle of inclusiveness as the moral equivalency that this signals between those who caused others harm and the victims,

“I have to look at it on a personal view, say [name redacted] was, I wouldn’t be happy with that, if he was actually injured, which he wasn’t, and he was getting a pension from him being injured, I would have a problem with that there. […] The fact he’s being recognised as a victim. To me, he was a killer, he murdered my brother and I would have a problem with that....”[32]

Nevertheless, some respondents speak of the necessity for the definition to be inclusive. Some interviewees support an inclusive definition because they see it as part of a larger process of moving on towards the goal of reconciliation,

“…that’s where I have moved on. My thought pattern has now changed over the years basically because as I have grown older I want progress. I just want things to move on and to normality and also for my children, I just want normality for them, I’m not saying they’re all going to stay here but I’d like them just to live in a normal society here everybody can tolerate each other. So, that’s where I have moved on from that point of view. So, I would be happy enough giving the pension to everyone then.”[33]

Others see the potential segmentation of the pension based on exclusive eligibility criteria as a rights issue that goes to the very heart of the notion of reparations. They, thus, resist the modelling of the hierarchy of victims through eligibility criteria,             

“[…] that campaign was set up and it’s called A Campaign For All – recognition for all, that’s their tagline in relation to it. So, I think if it moves away from that it will betray what it started out as being. So, it needs to be inclusive and it needs to count for everybody regardless of whether people are civilians or combatants who are attempting to access it. If you were injured, then you should be able to apply for it. … [Otherwise,] the kind of compensation notion of you’ll get compensation but then if you’ve got a criminal record it takes it away. That’s not reparation, that’s a compensation scheme. So, if we’re going to have a pension which explicitly is dealing with the results of conflict then it needs to apply to everybody.”[34]

The further harm caused to victims because of the delays in receiving reparations coupled with the fact that the pension is the measure that would have most impact on their everyday lives highlights the need to find creative solutions for this interviewee,

“It’s like we’ve gone down the road of this but then we’ve stopped, and we’ve stopped at the exact point where it might actually help victims, in my opinion. […] I was horrified, I was horrified that the notion that this pension is being held up. I was horrified that nobody had had the innovation to say well look, do you know what we’ll do, we’ll have a pension for the 490 and we’ll have a pension for the ten, but we’ll call it something different so that everybody is happy.”[35]

Ways Forward

In their guidance on the pension for severely injured, WAVE[36] and the Commission for Victims and Survivors[37] have suggested an inclusive definition that recognises all (1) claimants who have suffered physical injury/ injuries as a result of Troubles-related incidents; which (2) have resulted in disablement. Although this definition is consistent with private law of torts, where the criminal responsibility of the victim does not preclude him/her from receiving redress, the above reveals this definition to be problematic.

              Thus, three alternatives have been proposed.[38] Where the first two distinguish beneficiaries from the general victim population, that remains inclusive of both individuals who have caused harm to others as well as have harmed themselves, the third proposed definition excludes these categories from the receipt of a pension funded through state means. The beneficiary of the first version of the qualified pension has (1) suffered physical injury(s) as a result of Troubles related incident(s), which was unlawfully caused by another person or organisation; and whose (2) injury(s) has resulted in disablement. This definition excludes those who injured themselves or were injured as a result of lawful action by security forces. It reflects the basic legal tenant that unlawful intentional harm by others should be the subject of redress. As such, this is consistent with cases like Aidan McKeenver v Ministry of Defence, where an individual driving an IRA getaway car was shot in a British army ambush and left seriously injured, but his compensation claim upheld due to the unlawful use of force.[39] Nevertheless, the applicant must be able to prove that their injury was not the result of self-harm and was caused by unlawful action.

The second version of the qualified pension introduces a review panel that deals with those who were convicted of serious criminal or scheduled offences. Thus, the beneficiary is a person who (1) suffered physical injury(s) as a result of Troubles related incident(s) that (2) has resulted in disablement; and (3) has appeared before a review panel that has examined their case. This definition presents the benefit that ex-combatants are distinguished from civilians, responding to the critique made by some interviewees that these might have caused harm to others or injured themselves. Excluding any ex-combatants would require a panel that would determine whether the applicant was indeed member of a paramilitary group. This will inevitably delay the pension for many victims, as has been the case in Peru.[40] The recommendation of this qualified version is that the panel determine whether the ex-combatant is eligible for a pension based on their particular case. It should take into account time served in prison, the seriousness of the crime, their disability, and the impact it has had on their life. The Northern Ireland Criminal Injuries Compensation Scheme makes provisions for the reduction of compensation following an injury based on a set of criteria that includes the individual’s conduct before, during or after the incident and their failure to inform or cooperate with the police. Such a review panel is provided for under the Civil Service (Special Advisers) Act (Northern Ireland) 2013.

Finally, the exclusionary model directs members of combatant organisations who have been convicted of criminal or scheduled offences to a private trust while ensuring the automatic receipt of a pension by civilians who suffered harm. Such a trust could be funded by private charitable donors, international organisations, or even prisoner groups, as has been the case in South Africa.[41] An operational definition of the beneficiary of such a pension programme would be, the claimant has (1) suffered physical injury(s) as a result of Troubles related incident(s) that (2) has resulted in disablement; and (3) has not been convicted for a serious crime. More recently a mixed model has been proposed where a parallel process would have separate panels to address the needs of civilians and ex-combatants.[42] Whatever the model that is used, there are ways and means to find the correct approach in moving forward the issue of the pension for those injured.

Conclusions

The UN Special Rapporteur Pablo de Greiff called for an urgent resolution of the pensions for those severely injured in the conflict/Troubles. This brief has explained that victims have a reasonable expectation to receive this form of reparation not only because they require financial security for themselves, their families and they carers, but because they suffered harm as a result of a rights violation. The political impasse outlined in the second section can be overcome by attaching some conditions to the eligibility criteria so as to distinguish the beneficiaries of the pension from the general victim population. The third model presented suggests that ex-combatants and those who injured themselves may be directed to a private fund, where the remainder of the victims can access their pension through the state. One version of the qualified model indicates that applicants may be required to prove that their injury was caused as a result of an unlawful action that they did not execute themselves. Another version of this same model would have the applicants appear before a review board that would make case-by-case judgements on the pension issue, taking into account their trajectory of involvement in the conflict/Troubles as well as their criminal record.

14 June 2018