This presentation to the Northern Ireland Assembly Committee 23 October 2001 sets out the reservations of the Law Society concerning Government proposals to make radical changes in criminal injuries compensation in Northern Ireland

Mr Chairman, Committee Members, thank you for this opportunity to address you this afternoon on this important topic.

By way of introductions: I am John Neill, currently President of the Law Society of Northern Ireland; with me is a Member of the Governing Council of the Society, Mr Brian Stewart, a partner in the firm O'Reilly Stewart, who is a senior solicitor with extensive experience of civil litigation; with me also is Mr John Caldwell, a partner in the firm of S D Crawford & Co, again a senior solicitor with extensive litigation experience; finally, I am accompanied by Mr John Bailie, Chief Executive and Secretary of the Society, who is also a qualified solicitor.

With your permission Mr Chairman, I would propose to invite my colleague Brian Stewart
to make a brief opening statement. It will highlight the main points of our concern about these proposals. But I would ask you to reflect carefully also on the more detailed Position Paper which we have submitted to you in advance.

Following this short presentation we would hope to deal with any queries you may have.

Opening Statement

Mr Chairman, Members of the Committee, we are dealing this afternoon with an issue of immense importance to each one of you, to your family and friends, indeed to anyone who may be the innocent victim of a criminal act. We have thought hard about how to approach this meeting and this Committee. We have deliberated on how best to convey to you our most profound disquiet concerning the main plank of these Government reforms: that is, the introduction of a tariff system for the assessment of compensation, with the consequence that compensation assessment will be removed out of the hands of the judiciary and into the hands of the Government.

We have reached the conclusion that the only way we can convey our position responsibly is to put the matter to you bluntly. We will do so as concisely as we can.

The introduction of this tariff scheme is a confidence trick on the part of the Government. It is an exercise in deception because it is part of a planned and long-term strategy of the Government to cut and control compensation to victims, and in a way which has been discredited elsewhere. The most cynical aspect of this proposal is that it is dressed up the Government and spun repeatedly as being promoted in the interest of victims.

Obviously these are serious assertions, which we do not make lightly. On what do we base our suspicions? Well, these are the factors we would draw to your attention to allow you to make your own judgment.

First, this is not the first time this type of proposal has been mooted by the Government. It is a long-cherished and well-known ambition of the executive in general, and the Treasury in particular, to wrest the assessment of criminal injuries compensation away from the independent judiciary. We are aware of at least one previous occasion when the Government turned back at the last moment from proposing a tariff-system for Northern Ireland.

Secondly I would draw your attention to the treatment by the Government of the Bloomfield Report. No doubt Sir Kenneth Bloomfield and his Review Team acted in good faith in examining the present system at the request of the Government, although we believe the work of the Review Team suffered as a consequence of not including within its membership someone with practical experience of the operation of the current system. In the Position Paper we have explained in more detail why we think that the Bloomfield Report was misconceived in respect of its limited recommendation that the tariff system should be introduced, but only for lower-value cases. For immediate purposes the significance of the Bloomfield Report was that it acted as a Trojan horse which, by conceding a breach of the principle that compensation assessment should be under the ultimate control of the judiciary, opened the way for this complete removal of judicial input. An important part of the reason why the Government could not accept even the Bloomfield recommendations was that the retention of the current system for the higher-value cases would expose in due course the inadequacy of the Government determined tariff in the lower-value cases.

Third, we point to the absence of support for the government proposal from victims with experience of the present system. We draw your attention to the hard evidence of victims experience gathered by the Bloomfield Review Team. A majority of respondents wanted no change. The minority who wanted change wanted a better process. So far as we can see no one wanted less compensation or withdrawal of the right of access to legal advice and the right of appeal to the courts. For obvious reasons the Government is keen to sell the English tariff system. If we are constantly told the myth that the grass is greener over there, that the English system delivers compensation quickly, simply, in a way that everyone understands and has confidence in, these proposals may seem attractive. What we are not told is that under the English system the determination of compensation tariffs is removed from independent control, that compensation will be lower, and that even the promise of speed and simplicity is far from the whole truth. In particular no mention is made of the very significant degree of simmering public dissatisfaction with the compensation arrangements in England which boils over regularly in the media.

Fourthly, what gives the lie to this Government pretence to be motivated by concerns to "streamline" in the interest of victims is this. Since the inception of this process, the Law Society has been on record offering to engage in constructive dialogue with the Government and the many agencies whose performance affects the victims experience of the claims process. The purpose of this dialogue would be to examine practical problems within the current system, to solve these problems, and to examine ways of improving victims experience of the current system. The silence of the Government has been deafening. There has been no approach to the Society to discuss these matters. In fact there has been no response at all from the Government to our submissions. Two years after publication of the Bloomfield Report out of the silence come these proposals, confirming rejection of even the Bloomfield tariff proposals . Why is the Government not interested in engaging in a genuine dialogue about streamlining the present process? Because the hidden agenda has nothing to do with process improvement, but has everything to do with the Government taking control of compensation levels with the aim of cutting the cost.

Of course you will hear our concerns misrepresented as the protest of lawyers interested only in lining their own pockets. This is a cheap shot and in a sense we are easy targets. It will suit the government agenda to have you buy into this misrepresentation, and into the demeaning of the value of the safeguards for the protection of victims rights built into the current Northern Ireland system. We wish to be candid about this. Criminal injuries compensation work is not lucrative for lawyers. We can provide you with facts and figures. In consulting our colleagues in the solicitors' profession it is fair to report to you that not one has protested the loss of this business.

But many have expressed concern about the removal of the victims right of access to a full and independent assessment process. Let me make this absolutely plain. This is a recipe also for inequality between victims. Experience in England has shown that some victims will continue to employ lawyers because they find it worthwhile and necessary to do so. Those who cannot afford to do so are penalised. In other words in England the most vulnerable and disadvantaged victims are most penalised by the absence of access to free legal advice. Lawyers will survive these proposals without any major difficulty. The victims of these proposals are not the lawyers: the victims of crime will become the victims of this tariff proposal.

In this context, what is our recommendation to you as to how the Assembly should respond to these proposals? Well, in a sense, our advice to you is simple:

• One, do not be deceived. Recognise this proposal for what it is;
• Two, do not buy into the Government agenda. Do not compromise, just say no to the tariff system;
• Three, respond to the Government with a clear message that this proposal will not command the confidence of the elected representatives of the people of Northern Ireland;
• Four, urge the Government in the plainest terms to re-think the tariff aspect of these proposals. In particular urge the Government to enter into a serious and constructive dialogue with the Law Society and others to examine ways of improving the present Northern Ireland system.

In conclusion, let us warn again and unequivocally that these proposals will not serve the interests of victims of crime in this jurisdiction, whether in the short or longer term. Victims will not know the value of the system we have until it is gone. We ask you, as elected representatives, to recognise the value of what we have, and not to be complicit in its removal.