Time for a pension for those seriously injured during the Troubles

The Good Friday Agreement secured peace for Northern Ireland. While it is easy for the rest of us to get up out of bed in the morning and get on with our lives, those bereaved and seriously injured are reminded everyday of the past, forgotten and left at the way side, as the rest of us enjoy the peace. It says very little of us as a society that we have not developed a comprehensive reparations policy to acknowledge and remedy the suffering of victims and survivors who bore the burnt of the violence. It is shameful.

One such group of victims is those who have been seriously injured by the Troubles. These individuals have been permanently disabled through lost limbs, physical scars, and sensory impairment. They have been left struggling everyday, many reduced to poverty, as a result of being caught up in political violence decades ago. Compensation they were awarded at the time was based on their income, not needs, and underestimated their life expectancy, meaning that such awards were inadequate and short-term. They have been unable to work, left reliant on benefits and prevented from building up a pension to guarantee their secured future. As they get older, their health is deteriorating, and they are facing financial insecurity in light of welfare cuts, adding further distress.

Based on the work of Professor Marie Breen-Smyth on the needs of those seriously injured to develop a pension, which has been proposed by WAVE and endorsed by the Commission for Victims and Survivors. A pension for those seriously injured serves to acknowledge the harm endured and alleviate their daily suffering. The number of those eligible are likely to be less than 500 with most averaging a 50% rate of pension based on the level of their disablement. Other countries have adopted such pensions, such as Spain which has a generous scheme for those victimised by terrorism, but fair amount of €1,597.53. While the suggested NI pension averaging around £500 per month may not be much, for those seriously injured it represents future security and recognition of their suffering. WAVE recommends that the pension should include principles of being:

  1. non-contributory;
  2. non-means tested;
  3. completely disregarded for the purposes of calculating entitlement to means tested benefit;
  4. the level of payments should be graded to reflect the differing levels of disablement that those injured in the Troubles experience;
  5. continue beyond State Retirement Age

To reflect reparation principles in human rights law and the recent report by the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mr Pablo de Greiff, the pension should also:

  • have a dedicated budget line
  • those eligible should be exempt from welfare assessment

In recent weeks First Minister Peter Robinson has stated that the DUP will bring a special pension bill for those seriously injured before the Assembly. While there is a need to develop a reparations programme for those who are bereaved and suffer from Post-Traumatic Stress Disorder, a specific bill on those serious injured is a welcomed step to developing reparation programmes for all victims. A pension for those seriously injured is on the political agenda and is included in the current all-party discussions on dealing with the past.

What is holding it up?

Contention remains around who should be eligible for such a pension. The Victims and Survivors (NI) Order 2006 broadly defines a victim or survivor as somebody who has been ‘physically or psychologically injured as a result of or in consequence of a conflict-related incident’, a carer, or bereaved as a result of such an incident.’ Reparations generally concentrate on those most vulnerable and continue to suffer. Those serious injured are clearly such a group of victims.

However, controversy centres on roughly 10 individuals who were not only seriously injured, but were also convicted of terrorist membership or offences or on active duty. While these individuals have served their sentences, the DUP want to ensure that they are excluded from benefitting from the pension scheme. Yet based on the 2006 Order Sinn Fein want to maintain that these individuals, who come from loyalist and republican backgrounds, are included in the pension no matter their past.

How can we work round this issue?

The law has in the past provided some options to address this issue:

  1. Non-discriminatory approach – Current service provision to victims and survivors makes no distinction between civilian, security forces or paramilitaries from accessing services and individual assistance payments. This non-discriminatory approach is consistent with human rights law that everyone should have access to effective remedy for serious injury or death. Our own domestic law in suing for intentional violence does not deny individuals a right to compensation for serious harm, even if they have been convicted for criminal offences. In human terms these 10 individuals have suffering serious, permanent, debilitating injuries, they have served their time in prison for their crimes, and they should not be further punished for access to a basic pension.
  2. A review panel – in determining whether these 10 individuals should be eligible a review panel could consider their circumstances. Such a review panel is provided for under the Civil Service (Special Advisers) Act (Northern Ireland) 2013. For the pension bill the panel could take into account these 10 individuals’ time served in prison, gravity of offence(s), their disability, and impact of their serious injury in daily life. There should also be provision for appeal to a high court judge if the individual is unhappy with the outcome of the review panel.
  3. Private trust fund – to avoid the pension bill leading to a ‘terrorist’ being handed a monthly government cheque, a private trust fund could be established as part of the pension bill for these 10 individuals. The remaining 350-400 serious injured victims would automatically receive their pension from the government. The 10 individuals would receive a comparable amount through the private trust fund, allowing them access to a pension as a victim, without attaching government money to it. Such funds could come from private charitable donors, international organisations, or even prisoner groups to ensure that they ‘look after their own’.
  4. Reduction scheme – the 10 individuals could be included into the pension scheme, but their amount could be reduced by 10% to reflect their past responsibility in victimising others. The Northern Ireland Criminal Injury Compensation Scheme does not entirely exclude those who have criminal offences from claiming compensation. Instead their award is reduced on a point system taking into account their criminal conviction, time served, and time since release. This approach reflects that such individuals are both responsible in victimising others, but due to their seriousness of their suffering they should have some form of remedy.

Reparations are intended to remedy suffering, not to punish. Excluding certain individuals is likely to only delay the pension to individuals who desperately need it now. Moreover, it may be ineffective of ensuring that it will exclude those who were involved in terrorism. It is likely that there may be others who were serious injured, but were not convicted of offences that will benefit from the special pension. In addition, for those 10 individuals who were convicted of terrorist offences, the evidence of such convictions may be unreliable, given concerns over evidence submitted in such trials, e.g. supergrass evidence or interrogation techniques. Perhaps the most workable solutions would be the first two (non-discriminatory or review panel). Either way the majority of victims eligible for this pension should not be denied or delayed access to payments because of political controversy of these 10 individuals.

A need for political leadership

Is it really worth denying a basic pension to individuals who had their limbs blown off, shrapnel and bullet enter their bodies, to the extent that they were no longer able to work, but left with permanent scars, disability and pain. There is a need for compromise from both sides. A pension for those seriously injured cannot be used a political stick to beat the other side. Putting aside one-upmanship for the greater good can only benefit everyone in Northern Ireland. This is what political leadership looks like.

As a society we should be concerned about ensuring that those most vulnerable and continue to suffer from political violence have a right to reparations and remedy. As human beings, everyone is born free and equal in dignity and rights. When we fail to look after those most vulnerable in our society, we fail as human beings and as a ‘developed’ country. The law is responsive to such challenges; it comes down to whether there is political leadership and willingness to transcend the politics of the past, to build a better inclusive society.

Senior Law Lecturer at Queen’s University Belfast. Views expressed are my own. Researches in victims, reparations, international criminal justice and human rights.