Naomi Long
East Belfast · Alliance Party · Northern Ireland
“Underneath the Facebook posts to say that he had passed away, people speculated with such comments as, "Probably high on drugs", "Probably drunk", and, "Typical boy racer". There was all of that speculation. It was hurtful to the family, and it was inaccurate.”
“There are circumstances that we need to consider and be careful of. I was told, for example, that, when the issue of good character references at trial was being looked at in New South Wales — Committee members may wish to look at this for themselves — one of the groups that opposed their removal was representative of domestic abuse victi…”
“It sets out the strategic direction adopted by the Department and key partners to tackle those appalling crimes and protect vulnerable victims of exploitation.”
“The provision seeks to provide protection, via legal advice and representation for complainants, against the use of non-relevant personal material and evidence of previous sexual history being used in the court process.”
“<BR /> <BR />On the wider issue of ensuring that a withdrawal of services never happens again, I think that most of us agree that, although everyone has the right to take industrial action, no one has the right to derail and hold to ransom the entire justice system in that way.”
“Those measures will go some way towards helping to support complainants and enable them to have input into the decision-making process about what records containing their personal and sensitive information are required to be shared with the defence.”
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“The Prisons 25by25 strategic improvement programme captures the Prison Service's ambition for continued development and improvement. The focus of the programme is delivering the best possible service to those in our care and for wider society. Year 2 concluded at the end of March. Achievements included three recruitment campaigns; further development of support services for serving and former staff; the launch of a substance misuse strategy; the completion of over 100 minor works projects; and the roll-out of X-ray body scanners in all three prisons. The programme has now entered its third and final year.”
“<BR /> <BR />The regulations will ensure that the personal injury discount rate for Northern Ireland, when set by the Government Actuary later this year, will continue to give effect to the legal principle of 100% compensation and therefore be fair to claimants and defendants.”
“The discount rate is applied only to special damages, which are measurable financial costs and losses. It is also worth noting that the guidance on general damages has been updated recently in England and Wales and separately in Northern Ireland and confirms continuing differences between the guidance on the level of general damages awards between jurisdictions. If we look at house insurance, for example, on which the discount rate has no impact, we see that it is also higher in Northern Ireland than it is in other regions. It is therefore not the discount rate in and of itself that is the only determining factor, although it may contribute in some places.”
“The discount rate is one such factor, but the following all make a contribution to the overall picture: the number and nature of thefts here; levels of fraud and uninsured driving; the number and nature of road traffic accidents; the make and model of cars; road safety; road infrastructure; the cost of repairs; the levels of damages awards; the number of new and novice drivers; and the insurance premium tax rate. <BR /> <BR />For historical reasons, general damages for pain and suffering, for example, also tend to be higher in Northern Ireland than they are in other jurisdictions. That is because the assessment of damages in Northern Ireland was in the hands of juries until about 1987. That may be a reason that insurance costs in Northern Ireland are slightly higher, but, again, that is not relevant specifically to the discount rate.”
“Irrespective of that, however, the legally established principle of 100% compensation means that the impact on insurance costs cannot be taken into account in how the rate is set. As a matter of law, claimants are entitled to be fully compensated, and that is the only consideration that we can take into account in that regard. I am not in a position to comment authoritatively on the detail of insurance costs or to speculate on the extent to which the discount rate affects the cost of insurance locally, but it is common knowledge that a number of factors contribute to the premium costs.”
“Apologies, Mr Deputy Speaker. I was not sure whether my colleague had indicated that he wished to speak. It is fine. <BR /> <BR />I thank the Members who have spoken today for their engagement. I will address some of the points that were raised during the discussion, particularly those about the cost of insurance premiums in Northern Ireland, which, we all recognise, is an issue and was of concern to the Committee. <BR /> <BR />Many factors contribute to insurance premium costs, and the discount rate is just one of them. My Department is not in a position to assess the extent to which the discount rate affects the cost of insurance; that is a matter for insurers.”
“The cost to insurers and the health and social care service flows from the liability of defendants to compensate claimants in full. <BR /> <BR />To be clear, the only factors that are relevant for the setting of the rate are those that relate to the expected return on investment. The changes to the statutory methodology proposed in the draft regulations reflect updated economic projections since the rate was last set and are the best means by which the legal principle of 100% compensation will continue to be protected. I therefore commend the draft Damages (Process for Setting Rate of Return) Regulations (Northern Ireland) 2024 to the Assembly.”
“As the rate affects the total sum of damages payable to those who have suffered personal injuries, it will affect the liabilities of public compensators and insurance companies. It is therefore likely to be one of many factors that affect the cost of insurance. <BR /> <BR />Importantly, we do not know what the outcome of the Government Actuary's upcoming review of the discount rate will be, so we do not yet know if the discount rate will go up or down or stay the same. However, the impact of changes in the rate for defendants, insurers and other compensators is not something that can or should be taken into account when the Department and the House consider the need for modifications to the parameters for setting the rate.”
“It is worth noting that Scotland has recently made regulations that make the same changes in that jurisdiction to those to be made by the draft regulations in Northern Ireland. That means that, subject to the draft regulations being approved by the Assembly, the rates in Northern Ireland and Scotland will be set using exactly the same parameters. <BR /> <BR />I thank the Committee for Justice for its detailed consideration of the draft regulations, and I am pleased that the Committee has recommended that the House should affirm the regulations. However, the Committee also wrote to the Department noting some concerns, and I want to address those today. In particular, the Committee highlighted concerns expressed about the impact of the discount rate on insurance premiums and public bodies.”
“Therefore, the draft regulations prescribe annual weekly earnings as the measure to be used for the purposes of tackling inflation. However, looking beyond the immediate needs of this year's review, the Department intends to review how the legislation makes provision for the impact of inflation to consider the scope for providing more flexibility, including the potential future use of an adjusted index. Any such amendment would require primary legislation in the next mandate. <BR /> <BR />The other modification that the draft regulations propose is an increase to the deduction for taxation and the cost of investment advice and management from 0·75% to 1·25%. The new adjustment of 1·25% is based on advice from GAD that changes to the investment yields and tax rates have increased the tax costs for claimants by 0·5% on average.”
“Currently, the legislation prescribes the retail price index. However, the way in which RPI is calculated is going to change from 2030. Stakeholders and GAD were of the view that that meant that RPI was no longer the best measure to use. The Department notes that many stakeholders suggested that an adjusted measure would be appropriate; for example, the consumer price index plus a percentage adjustment. However, under the current statutory framework, a single unadjusted index must be chosen. <BR /> <BR />Given the choice between a price-based measure and an earnings-based measure, the Department took the view that the latter would be more appropriate because, having given regard to the consultation responses, it recognised that earnings and care costs were likely to make up a significant part of any damages award.”
“In anticipation of that, the Department conducted an exercise to determine whether any of the statutory parameters by which the rate is set ought to be modified, and whether there should continue to be a single discount rate or more than one rate. That exercise involved consultation with stakeholders and the commissioning of professional actuarial advice from the Government Actuary's Department (GAD). <BR /> <BR />Having considered the consultation responses and GAD's advice, the permanent secretary concluded that two of the parameters by which the rate was set needed to be updated to reflect current economic projections and ensure that the rate continued to give effect to the legal principle of 100% compensation. The first of those is the measure used to take account of inflation.”
“Under the legislation, the rate must be set to reflect the expected return from investing a lump sum award of damages in a prescribed notional portfolio of investments for an assumed period of 43 years and be adjusted to take account of inflation, the cost of taxation and investment advice and management costs. The rate must also include a further margin to take account of investment risk. <BR /> <BR />The first review of the rate under the new legislative framework led to the rate being set at -1·5% in March 2022. The next review of the rate by the Government Actuary must commence on 1 July, which will align Northern Ireland with the cycle of regular reviews of the rate in Scotland.”
“The rate is a percentage adjustment to a lump sum award of damages for future financial losses to reflect the return that can be earned from investing it. <BR /> <BR />In the previous mandate, I brought forward primary legislation — the Damages (Return on Investment) Act (Northern Ireland) 2022 — that changed the process by which the rate for Northern Ireland is set. That legislation amended the Damages Act 1996 to transfer responsibility for setting the rate from the Department of Justice to the Government Actuary, prescribe a new methodology for setting the rate and require a regular review of the rate every five years.”
“Before I turn to the detail of the draft regulations, which make amendments to the statutory parameters by which the personal injury discount rate is set, I want to explain the wider context for the changes proposed. It is a well-established principle of our law that a person who is injured as a result of the negligence of another is entitled to be compensated in full — no more and no less — for any future financial needs that arise from the injury. That is called the 100% compensation rule. Claimants who have suffered serious — often life-changing — injuries will, generally, be dependent on their damages award to meet their basic needs and the cost of their care. The purpose of applying the personal injury discount rate is to give effect to the 100% compensation principle.”
“Thank you, Mr Speaker. At the outset, I advise the Assembly that I have declared a conflict of interest in relation to the personal injury discount rate on account of my husband's membership of a medical defence union. Medical defence unions have an interest in the level of discount rate, as it may affect the cost of indemnity and, consequently, the cost of membership. In view of that, I delegated to the then permanent secretary of the Department policy decisions about which of the parameters for setting the rate ought to be modified.”
“Given that we are in the situation in which we are, with two years missing from the mandate and very restricted resources, does the Member accept that the fact that we have accelerated provisions to give protection to vulnerable victims, rather than wait for a stand-alone hate crime Bill, should be commended, not criticised?”
“Will the Member accept that, given that part of Judge Marrinan's report still has to go to consultation, it would be impossible to legislate within a 12-month window?”
“— diversity is not merely tolerated but embraced and celebrated and where people are safe.”
“As I said, issues of telecommunication are outwith the devolved space. However, I continue to work with Ofcom and the Home Office on the Online Safety Act 2023. Members are aware that I feel that it needs to go further than it does at the moment. <BR /> <BR />As Minister of Justice, my role is to deliver a programme that maximises what we can achieve and prioritises the needs of all victims of crime. In the current context, what we are doing with Judge Marrinan's report meets those criteria. Building safe communities in the current challenging climate requires difficult choices, but it is right that we should prioritise hate crime in this mandate, deliver the most impactful elements of the legislative framework and ensure that people can be prosecuted where it is clear that their crime is motivated by prejudice and hatred.”
“Work continues in my Department on the non-legislative parts of Judge Marrinan's review. For example, we appointed Northern Ireland's Victims of Crime Commissioner Designate two years ago: Judge Marrinan recommended that in his report. The commissioner designate has special responsibility for hate crime. I hope to put that office on a statutory footing in the victims Bill in this mandate. Direct support to victims of hate crime from my Department and the PSNI through the Hate Crime Advocacy Service is also delivering specialist support.”
“Again, I intend to advance those provisions in this mandate as part of the victims Bill in order to ensure that the measures are place for prosecutions under the new hate crime provisions. <BR /> <BR />Legislation alone will not reduce hate crime, so we need a collaborative approach to dealing with intolerance, prejudice and hate. Education, early intervention and collaborative working are all important.”
“However, due to the need to bring forward the most impactful elements of legislation for victims in this mandate, that phase 2 consultation will need to be rescheduled to a later date so that officials can draft the new model provisions for the forthcoming legislation as to be determined. <BR /> <BR />Having met Judge Marrinan recently, I know that he is also of the view that the public order elements of the recommendations in his report would be best advanced as separate legislation to be progressed in the next mandate, and I concur with him on that. I have mentioned that I intend to allow victims of hate crime to have automatic entitlement to special measures and to be protected from in-person cross-examination.”
“<BR /> <BR />To be clear, the phase 1 public consultation to which I referred sought views on the introduction of the new statutory aggravation model; sectarian offending in hate crime law; elements of stirring-up-hatred offences; replacing the dwelling defence with the defence of private conversations, which a number of Members referenced and which I will come to; special measures and protection from cross-examination for victims of hate crime; and exploring misogyny and transmisogyny in hate crime law. However, the phase 2 consultation is intended to take forward for consultation recommendations that include the protected characteristics of gender, age and various sex characteristics as well as a duty to remove hate expression from public space. That was due to take place later in 2024.”
“Furthermore, as there are a number of recommendations for additional hate crime classes, which are to be consulted on as part of the phase 2 consultation, I am working towards future-proofing the legislation by allowing other groups to be added at a later date if evidence in consultation shows that they are needed. That would allow us to move at pace to respond to emerging trends without the need for further primary legislation, and it would allow us to add to the list by secondary legislation and regulation.”
“That is the entire extent of the hate crime provisions on which we consulted as part of the phase 1 consultation, and it reflects the extent of the provisions intended to form the stand-alone Bill in a five-year mandate. <BR /> <BR />Members have asked about this: no new offences will be created by the proposed model. The model will be an aggravating model, and, in that way, if someone commits a crime that is motivated by hate and the crime can be proven but the motivation cannot, they can still be convicted of the underlying crime. It is only when the hate motivation can be made out in court that the aggravator will then be applied to sentencing. <BR /> <BR />I also want that model to recognise intersectionality, and a number of Members referenced that.”
“<BR /> <BR />Whichever option is finally landed upon, the introduction of a new statutory aggravation model for prosecuting hate crime will provide a system-wide response to the criminalisation of hate crime, allowing for better outcomes for victims. That new model will become the core method of prosecuting hate crimes in Northern Ireland. All existing offences will be able to be aggravated by hostility that is based on membership or perceived membership of a group based on race, religion, disability or sexual orientation, which are the current protected groups. It will also, however, extend the model to cover transgender identity, and we hope to also include sectarian motivation in this first foundational phase.”
“Whether that happens through a stand-alone Bill or as part of a wider piece of legislation, the provisions that I intend to deliver in this mandate, which I will come to shortly, are the same. The core element of a statutory aggravator model will remain the foundation for all other future provisions. A number of considerations will influence my final decision on that. However, a key consideration is the fact that, if the statutory aggravator model were moved into the sentencing Bill, it would be in force one year sooner than if it were in the victims Bill, or if it were in a stand-alone hate crime Bill, it would be in force one mandate sooner.”
“I think that eight Bills in five years — the equivalent of one term — is not glacial. I actually think that it is quite impressive for the Department to have been able to achieve that, despite the disruption to its normal functioning. <BR /> <BR />I am now considering which of two possible legislative vehicles — a victims of hate crime Bill or a split between a victims and a sentencing Bill — would be most appropriate to deliver progress urgently. As part of those considerations, my officials and I have been engaging with the sectoral groups that represent those minority communities that we are seeking to protect. The only impact for victims of hate crime will be which provisions can be delivered in this mandate and how soon they will take effect.”
“<BR /> <BR />I reassure the Member for Foyle that there are no intentions to water down the hate crime provisions or to, in any way, weaken the provisions that will be made in hate crime legislation. Nevertheless, one can only do so much in the time available, and, despite what some Members described as the glacial pace of legislation in this place, it is important to remind them that we had two years of the previous mandate followed by three years of this mandate, which equates to a five-year mandate. The Department of Justice has already brought forward five substantive pieces of legislation. We are awaiting Executive approval for another significant piece of legislation to come forward, hopefully before the summer recess, and there will be two further Bills in this mandate.”
“<BR /> <BR />In that context, it was evident to me that a stand-alone hate crime Bill could not, therefore, be fully developed to address all of Desmond Marrinan's recommendations in the remaining three years of this mandate. In fact, when considering the original legislative programme, that stand-alone Bill would have been the fourth of five Bills, effectively moving it into the next mandate, with a three-year mandate. It is precisely because I prioritise hate crime that I made the decision at the start of the mandate to bring forward the most impactful elements of legislation for victims, to be delivered in this mandate as foundational hate crime provisions.”
“<BR /> <BR />The loss of two years of Assembly business time and the constraint on resources in the Department and the wider justice system has, however, left my Department facing some difficult decisions. It has significantly restricted the range of legislative reforms possible within the time now available in this shortened mandate. As Members will be aware, Executive Bills are drafted by the Office of the Legislative Counsel (OLC). All Ministers have been advised that there is restricted resource here, limited to one Bill per Department per year, and that, if any further Bills are added, that should be on a one in, one out basis.”
“Officials have also been monitoring the progress of the introduction of hate crime legislation in other jurisdictions. <BR /> <BR />Policy development on hate crime issues often involves consideration of complex and publicly contested issues, and we have heard references to that already here today. Indeed, it is evident that, in recent debates on freedom of speech and cultural and political expression, views have become increasingly polarised. In that context, I am very mindful of the need to balance the protection of freedom of expression with protection for victims of hate crime and hate speech, and to do no harm. I am determined to do all that I can to ultimately achieve the appropriate balance between protecting minority communities across our society whilst protecting freedom of expression. The two are not in conflict.”
“<BR /> <BR />Following that, my Department progressed preparatory work for the introduction of legislation, including the commencement of draft instructions for some of those phase 1 policy positions. The Department has also undertaken significant engagement with a wide range of stakeholders as part of the policy development process. That has included regular discussions with criminal justice partners to consider the operational aspects of hate crime legislation proposals, particularly in relation to the introduction of the statutory aggravation model. <BR /> <BR />Engagement with a broad spectrum of non-statutory organisations representing hate crime advocacy and victims' groups has also been maintained. Briefings with political parties to inform and update Members have also been offered and, in most cases, have taken place.”
“That is the central element of hate crime reform and is the most impactful part of Judge Marrinan's report for victims. Having met him recently, I know that he would agree that that is crucial. <BR /> <BR />A stand-alone foundational hate crime Bill was originally scheduled to be introduced in the current mandate as the fourth Bill in this mandate. Since 2020, substantial and valuable work has been undertaken by my Department in implementing Judge Marrinan's 34 recommendations, including progress in working towards the development of that hate crime Bill. That has included the delivery of a wide-ranging phase 1 public consultation on a range of Judge Marrinan's recommendations and the publication of a consultation findings report and a way-forward document.”
“They are known to have a pronounced impact on victims, and the ramifications can extend beyond the direct victim to their communities by signalling that members of certain groups are not welcomed, valued or worthy of equal respect. Effective hate crime legislation can provide redress to victims, ensure that sentences reflect the harm that is caused not just to the victim but to wider society and support law enforcement agencies in the operation of their own hate crime policies. <BR /> <BR />Following Judge Marrinan's review recommendations, the Department accepted the need for a new legislative statutory aggravation model for all criminal offences, whereby each existing offence can be aggravated and provision for higher maximum sentences will be retained.”
“<BR /> <BR />A commitment to improve current legislation to support hate crime victims was included in the draft Programme for Government in 2016-2021. Providing a victim-centred legislation outcome has been a key priority for me as Justice Minister, and remains so. Members will know that, in December 2020, Judge Desmond Marrinan released his independent review of hate crime legislation in Northern Ireland. Recommendations from Judge Marrinan's review have provided a valuable framework in which to strengthen current legislation. They have provided the impetus to ensure that action is taken where necessary and to increase victims' confidence in the system that brings offenders to justice. <BR /> <BR />Hate crimes are committed, as I said, against an individual based on a personal attribute or group identity.”
“Not only does each hate-motivated incident impact on the primary victim but the ripple goes outwards through their family, friends and other members of their community. That does not, in talking about hate crime legislation, create a hierarchy of victims, as some people have suggested. It recognises the wider impact of crime that is committed with a hate motivation, and the creation of secondary and tertiary victims. I hope that all Members from right across the Chamber would join me in condemning the actions of those who seek to stoke hatred and deepen the divide in our communities. It is my wish that, as we discuss the motion, we send a united message to those who target someone because of who they are or what they believe that it is not acceptable and that they will face the full force of the law.”
“A few weeks ago, I heard Jay Basra, an election candidate for the UUP, speaking out against the racist abuse that he has suffered. I also listened in horror as the parents of three-year-old twins described a transphobic attack on their young children. I am reminded of Takura Makoni, who was forced to move out of his home with his family due to racist and anti-immigrant intimidation earlier this year, as well as the terrifying footage of a sectarian attack on the home of a young mother and her toddler in Lurgan last year. <BR /> <BR />Those are just a few examples, but, whether it is directed at political representatives, candidates, a young single mum, ethnic minorities or trans members of the community, each of those incidents is not just wrong but utterly destructive. Even one incident is too many.”
“Thank you, Mr Deputy Speaker. First of all, I want to put on record my pleasure that the Assembly has taken an interest in this important issue and also that it gives me the opportunity to clarify my ongoing commitment to successfully delivering hate crime legislation in the current mandate. <BR /> <BR />I want to begin by stating clearly that hate and prejudice have no place in our society. Recent events demonstrate only too well the appalling and destructive impact that hate can have on society in Northern Ireland. Just yesterday, I listened to Lilian Seenoi-Barr, who has made history as the first black mayor in Northern Ireland, speak about the racial abuse, including death threats, that she has had to endure.”
“I thank the Member for giving way. All those crimes are already on the books. The purpose of hate crime legislation is to add an aggravator, but does the Member accept that we cannot deal with telecommunications because that is a reserved matter?”
“Does the Member accept that, under the aggravator model that Judge Marrinan recommended and that I hope to introduce, when somebody commits a crime — for example, an assault such as the one that you have just mentioned — the hate motive that is being made out is an aggravating factor? If they are not convicted of the hate motivation, they can still be convicted of the assault.”
“I thank the Member for giving way. Can he just reassure me that the Ulster Unionist Party's position on hate crime legislation has not changed, because his colleague who currently occupies the Chair wanted to bring forward a private Member's Bill in the last mandate to bring forward those aggravators? I am interested in the concern about a hierarchy of victims.”
“Does the Member accept that those budget strains and stresses also apply to the Department, and, indeed, to every part of the justice system?”
“that is excepted, including national security. It may, therefore, fall to me to ask someone else to initiate the inquiry at the level where that would be required, so that the full remit of the national security elements can be fully considered. <BR /> <BR />I will, of course, keep abreast of both the tribunal findings and the progress of the board's considerations of the matter. I hope that those provide robust reassurance to journalists, the legal profession and the wider public regarding the use of those intrusive powers by the police. I stand ready to offer any assistance that may be appropriate within the law and within my responsibilities.”
“I have already made my position clear: I stand ready to do what is required to ensure that there is public confidence in policing, up to and including a public inquiry, should that be necessary. <BR /> <BR />Finally, any potential inquiry hearing evidence may determine that part of that evidence is outside its scope due to the application of section 30 of the Inquiries Act. This is important, Mr Speaker: the provision states that any statutory inquiry commenced by a devolved Minister:”
“It goes on to state that, before deciding to establish an inquiry, a Minister must reflect on what other investigatory mechanisms are available. Given the ongoing nature of the deliberations of the Policing Board and the IPT, it would not be appropriate for me to act in advance of that work concluding.”
“The threshold for what constitutes "public concern" is not set out in the legislation, but Cabinet Office guidance states that, generally, an inquiry may be set up:”
“Finally, with respect to my powers to call a public inquiry, section 1 of the Inquiries Act 2005 allows any Northern Ireland Minister to:”
“It is also important that nothing I do interferes with or cuts across the work of the investigatory powers tribunal, which is ongoing and is due to report in late autumn.”