A moral responsibility

The Head of Northern Ireland’s Civil Service David Sterling has described a “moral responsibility” on the Secretary of State Karen Bradley to take action on proposed new legislation to compensate victims and survivors of historical institutional abuse in the absence of an Assembly.

In a move which could ultimately be viewed as implementing direct rule on Northern Ireland, Secretary of State Karen Bradley is set to come under increased pressure to bring legislation before parliament in early 2019, once draft legislation to compensate survivors and victims of institutional abuse has been concluded.

David Sterling opened a consultation on three pieces of draft legislation in November 2018, prepared in the absence of an Assembly. The legislation seeks to implement the compensation elements of recommendations made by Sir Anthony Hart two years ago following the conclusion of a public inquiry.

Hart had been tasked with investigating allegations of abuse and neglect in children’s residential homes from 1922 to 1995 and his recommendations were completed just weeks before the collapse of the Assembly in January 2017, meaning they could not be progressed.

Although the original terms of reference of Hart’s inquiry stated that it was for the Northern Ireland Executive to decide on what action to take with the recommendations, the prolonged absence of an Executive moved Sterling to task officials to carry out preparatory work on recommendations within the report that required statutory foundation.

The result is that the three pieces of legislation currently open to consultation until February 2019 are:

• a Bill for a Commissioner for Survivors of Institutional Childhood Abuse (COSICA);
• a Bill for an HIA Redress Board; and
• subordinate legislation dealing with the detail of compensation proposals.

The Bill for a Commissioner for Survivors of Institutional Childhood Abuse would create a commissioner, independent of government or involved institutions, to support victims and survivors. The draft legislation provides for an advisory panel, made up of HIA victims and survivors, to support the commissioner. The bill sets out the duties and powers of a commissioner, which notably exclude powers of enforcement. The main powers of the commissioner will be in the form of research, recommendation and advice.

The Bill for an HIA Redress Board provides for the creation of a Historical Institutional Abuse Redress Board, following Hart’s recommendation that such a board should be responsible for receiving and processing applications for, and making payments of, compensation. It also sets out the main criteria victims and survivors must meet to apply for compensation, namely that they “suffered abuse while a child and while resident in an institution in Northern Ireland at some time between 1922 and 1995 (both inclusive)”.

The subordinate legislation sets out, in detail, how the compensation scheme will operate, including the amount of compensation to be granted. The draft legislation reflects the recommendations by Hart, which outline a lump-sum payment of £7,500 for “anyone who, as a child, suffered abuse in an institution or institutions in Northern Ireland”. The board will have the power to award an additional amount where it is satisfied that the severity of the matters raised in the application justifies it, with a maximum of £72,500. There is also an outline of a payment of £20,00 to children sent to Australia under the Child Migrants Programme, applications in relation to someone who has died and children who lived in multiple institutions.

“If, despite best efforts, the Northern Ireland Executive has not been restored by the time the consultation process ends we will consider what the next steps are in the absence of Northern Ireland Executive Ministers.”

— John Penrose, MP,  Minister of State for Northern Ireland.

Speaking upon opening the consultation in the draft legislation, Sterling restated that final proposals will be put to ministers for consideration and decisions, adding: “Civil servants are doing all that they can within the current circumstances in the absence of a functioning Executive to take forward the Hart Report recommendations.”

In November 2017, the introduction of the Executive Formation and Exercise of Functions Bill granted greater decision-making powers to civil servants in Northern Ireland, however, as the recommendations require primary legislation, it will require action to be taken in Westminster.

Instead, the introduction of the Bill served as a setback to campaigners who had launched a High Court challenge seeking to force the Secretary of State to either legislate on the recommendations or to call an election in Northern Ireland. The Bill included legislation to suspend the Secretary of State’s legal duty to call a fresh assembly election.

Bradley has previously stated her belief that it would be “constitutionally inappropriate” for the British Government to approve the payment of compensation to victims of historical abuse in Northern Ireland.

Recently, however, John Penrose, Minister of State for Northern Ireland, indicated a potential change of tone from the Government. In a reply to a question posed by North Down MP Sylvia Hermon, asking whether Bradley would take steps on recommendations of the Hart Report in the absence of a functioning Northern Ireland Assembly, he said: “The UK Government’s priority in Northern Ireland continues to be the restoration of the Northern Ireland Executive. If, despite best efforts, the Northern Ireland Executive has not been restored by the time the consultation process ends we will consider what the next steps are in the absence of Northern Ireland Executive Ministers.”

Margaret McGuckin, a founding member of the Survivors and Victims of Institutional Abuse (Savia) support group and survivor of historic child abuse at Nazareth House children’s home in south Belfast, says that the group has been left “deflated” by the process of lobbying the Secretary of State to act. 

McGuckin signalled the intention of Savia to seek improvements in the draft legislation to some of the recommendations made by Anthony Hart via the consultation but added that action needed to be taken to support victims as soon as possible.

“I never thought, after the difficult process of the inquiry was concluded, that we would still be in this position fighting for some of society’s most vulnerable. The introduction of draft legislation has been hard-fought but we still have no guarantee that action will be taken in the short or medium term,” she says.

“We will be engaging with the consultation, hoping for the legislation to go further than the recommendation but we also need to see action. The longer this process goes on the more victims are being let down and those with the decision-making powers need to appreciate that we can no longer be collateral damage for politics.”