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STATES OF JERSEY
HISTORIC ABUSE REDRESS SCHEME: APPROVAL BY THE STATES ASSEMBLY (P.80/2012) – COMMENTS
Presented to the States on 8th October 2012 by the Council of Ministers
STATES GREFFE
2012 Price code: B P.80 Com.
COMMENTS The Council of Ministers opposes this Proposition.
The Council recognises the need to treat claimants in an empathetic and caring way and to seek to ensure that claims are dealt with by a simple and speedy process. Ministers believe that it is better for all concerned if the setting up of the scheme remains the responsibility of the Council of Ministers. This will allow the scheme to remain sufficiently flexible to do justice to individual claimants.
The Historic Abuse Redress Scheme was designed to provide an alternative and efficient means of providing fair financial compensation to the victims, rather than requiring that the victims resort to legal proceedings. Any such proceedings would by their nature be adversarial and public and many victims expressly stated that they wished to avoid resorting to such legal proceedings if possible. Further, there is a major problem in relation to a victim pursuing legal proceedings in that there is a time period within which claims would have to have been brought, and the legal advice available to the Council of Ministers is that that time period has long expired, leaving the victims in effect without a legal remedy.
The Scheme was therefore established in light of this.
The Scheme lawyers advised the Council of Ministers on the establishment of the Scheme. This advice was provided after research into redress schemes established in other jurisdictions and discussions with those who administered those schemes, who helpfully provided their views on what did and did not work in the operation of their own schemes. In addition, independent expert UK Counsel advice was obtained to assist the Scheme lawyers in the development of both the levels of compensation and the rules applied to those levels.
The Scheme lawyers also consulted extensively with lawyers acting for all known claimants prior to the establishment of the Scheme and adapted certain elements of the Scheme in light of those comments. The lawyers acting for claimants all recommended the Scheme (in its current terms) to their clients and claims have subsequently been submitted by those lawyers on behalf of their clients. Further claims have been submitted by lawyers appointed after the introduction of the Scheme and also by claimants personally.
The Scheme has now received 128 applications for compensation and those claims are being processed. The claims are at various stages: many claims remain at the initial stage of investigation and the gathering of relevant documentation; a number of claimants have either seen, or have appointments to see, the Scheme psychiatrist for the preparation of relevant reports; the Scheme lawyers are in negotiations over settlement on a number of claims; and 5 claimants have entered into settlement agreements.
The Scheme was launched on 29th March 2012. All States Members were invited to attend a briefing on the terms of the Scheme at the time of its launch and there was also a media briefing and public advertisements concerning the Scheme. The terms of the Scheme are publicly available.
The Scheme allowed 6 months for the claimants to come forward and submit claims and the Scheme is therefore now closed.
The time frame was agreed with lawyers acting for all known claimants prior to establishment of the Scheme. A timeframe needed to be included in order that a point could be reached whereby we would reasonably know the extent and details of the claims which needed to be addressed. It is quite usual to have an end date for schemes of this nature.
A number of the claims have common themes. It therefore greatly assists those considering the claims to have received all claims by a certain date so that they have a complete understanding of the facts relating to all allegations and they can then assess all claims in that light.
The Scheme was well publicised when it was launched, along with the website and leaflets, with the time period for applications clearly identified. In addition, notices have appeared in the local media warning of the imminent closure of the Scheme so that all potential claimants would be fully aware of the Scheme and its terms.
In the event that any applications are submitted after the deadline of 30th September 2012, the acceptance of any such application into the Scheme will be considered on a case-by-case basis with reference, in particular, to the circumstances of the claimant and the length and cause of the delay in submitting the application.
The claimants and, where relevant, their legal advisors have all submitted applications on the basis of the Scheme as currently drafted. It is acknowledged that some issues have arisen on certain claims. In certain cases there is a lack of any corroboration in respect of allegations put forward and in these cases additional reports are being requested. Further, there are some applications which are considered to fall outside the Scheme and the Scheme lawyers are bringing this issue back to the Council of Ministers shortly. However, no claims have been rejected from the Scheme to date and the Scheme lawyers are seeking to work with the relevant claimant, or their lawyer, to address any issues. It is suggested that any issues that arise on particular claims should be dealt with on a case-by-case basis, and there is no justification for re-working the entire Scheme based on these issues.
The Council of Ministers recognises the importance of the Historic Abuse Redress Scheme in the provision of compensation for victims of abuse who would otherwise have to endure the Court process to seek recompense. It has been recognised that significant difficulties would be experienced by victims to succeed in Court due to the historic nature of the abuse and the passage of time since the abuse occurred.
Ministers are of the view it is unlikely that deferring the full and final settlement of claims under the Scheme, so that the States Assembly can further debate the terms of the Scheme, will benefit victims in any way. Many victims seek closure and their claims are currently being progressed in order to seek to provide that for them, and some have already received full and final settlement under the Scheme. The Council of Ministers is committed in due course to bring back a report to the Assembly detailing the type and general nature of the claims dealt with under the Historic Abuse Redress Scheme and the outcome and costs of the Scheme once all claims have been resolved under it.
Financial and manpower implications
The proposition recognises that there would be cost implications if the Assembly felt that the levels of compensation being offered were inadequate or the Scheme was being applied too narrowly or too restrictively. It should be noted that there would also be increased costs associated with re-opening the Scheme for a further period of time. It is not possible to place any figures on the likely future costs without knowing how any amendment to the terms of the Scheme will operate. The Scheme should now be moving into the process of dealing with all claims submitted and the consequence of, effectively, re-opening the Scheme and extending its terms may have substantial financial and manpower implications which it is difficult at this stage to quantify.
The Council of Ministers therefore urges Members not to support this Proposition.
Statement under Standing Order 37A [Presentation of comment relating to a proposition]
The Council of Ministers apologises for the late delivery of these comments. The Council clearly has to give these matters full consideration and this was difficult to secure earlier as the issue was not discussed by Ministers until Thursday 4th October 2012 following which some further revisions were required.
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