HC Deb 01 July 1977 vol 934 cc751-77

11.5 a.m.

The Minister of State, Northern Ireland Office (Mr. J. D. Concannon)

I beg to move, That the Criminal Injuries (Compensation) (Northern Ireland) Order 1977, a draft of which was laid before this House on 21st June, be approved. The proposal for this order was published in January. It attracted comments from professional and other interested bodies and was fully debated in the Northern Ireland Committee of the House. Having considered all these comments, and especially the views expressed in the Northern Ireland Committee, the Secretary of State has changed the originally proposed draft in several important respects. I shall draw the attention of the House particularly to these changes.

The order follows on a review by officials of the Criminal Injuries to Persons (Compensation) Act (Northern Ireland) 1968. Its main purposes are to improve the handling of claims by allowing compensation to be paid, if acceptable, on the Secretary of State's determination, while preserving an applicant's right to challenge any decision of the Secretary of State in the courts on appeal; to remove certain abuses or to stop their possible growth; to ensure as far as possible that compensation is not paid to those who have themselves contributed to terrorism; to ensure a minimum level of compensation for widows and dependent children whose awards are affected by the necessary deduction of benefits; and generally to bring the provisions of the Act up to date in the light of experience.

The definitions in Article 2 provide that in future compensation will be payable for an injury resulting from a criminal offence only if it was a crime of violence. They also restore a definition of an "unlawful association", which will be relevant in determining the amount of compensation in certain cases. This is now more widely defined to include not only proscribed organisations but others engaged in terrorism.

Article 3 adds to those at present entitled to receive compensation relatives of a deceased victim who, although not dependent on him, have to incur ongoing expenses as a result of his or her death, for example in bringing up any children. It restores the 28-day period for submission of a notice of intention to claim: and together with Articles 4 and 14 provides that any of the three procedural time limits—for reporting an injury to the police, for serving notice of intention, and for making an application—may be extended by the Secretary of State or by the courts.

Article 5 continues existing provisions of the 1968 Act on the matters for which compensation is payable: pecuniary loss, expenses and pain and suffering; and the requirements to take account of all relevant circumstances, including negligence and provocation, and of pensions and other benefits payable to a victim or his dependants. As a result of representations which have been made, however, trade union and friendly society benefits will not in future be deductible.

Article 6 contains several important changes from the original proposal. Under the 1968 Act an upper limit of twice the average United Kingdom industrial earnings is applied to compensatable financial loss, unless the injury was caused by an unlawful assembly of three or more persons of by an unlawful, that is to say a proscribed, organisation. The draft provides that the criterion in future would be the Northern Ireland average wage and that it would apply to the net amount of compensation rather than to the gross earnings to be taken into account.

I should explain that because compensation takes account of tax and of pensions and benefits this earnings limit is very rarely applicable. The overall effect of the changes, however, is to raise the amount of compensation payable for a year's loss of earnings in a typical case to which a limit would apply from about £5,000 to about £7,000. The proposal had also envisaged that the limit could in theory at least apply to all cases without exception.

I have taken account, however, of the strong representations which have been made and in the revised draft the limit will not apply if the injury was caused by an unlawful association. Moreover, as I have explained, an unlawful association is more widely defined than before to catch unproscribed terrorist organisations.

Paragraph (3) of this article contains an entirely new provision—that compensation will not be payable to or in respect of anyone who is or was a member of a terrorist association or who has been involved in acts of terrorism. The Cahill case established that compensation is not payable where there is a connection between an applicant's association with a proscribed organisation and his injury. It did not, however, specifically cover the case where there are no such connections and left open the question whether under the law as it stands compensation can be withheld from a terrorist when his involvement in terrorism is not a directly relevant circumstance of his particular injury.

Yet we must all hesitate to pay compensation intended essentially for the innocent victims of crime to those who have put themselves far beyond public sympathy by their participation in and encouragement of the most heinous crimes of terror. I think that there will be widespread support for the view that there are notorious persons whose sole interest appears to be to destroy society and on whom it would be wrong to confer the same statutory right to compensation as the order gives to the ordinary law-abiding citizen.

This paragraph provides, therefore, that if the victim or any other person who would otherwise be entitled to compensation has been a member of a terrorist organisation or has been involved in acts of terrorism, no compensation is payable. The order makes it clear, however, that a person who disputes the Secretary of State's view that he is or has been a terrorist has a right of appeal to the court on that point of fact. Once the fact of terrorist involvement is established, the right to compensation is removed. There may be exceptional cases in which the application of such a rigid principle would be unacceptably harsh. Notwithstanding paragraph (3), therefore, Article 8 allows the Secretary of State to make discretionary payments where he considers it in the public interest to do so.

Paragraphs (4) and (5) of Article 6 deal with minimum payments of compensation. The original proposal was that the first £100 of any compensation for pecuniary loss and the first £250 of compensation for pain and suffering should be deductible in all cases: a possible total deduction of £350.

I found wide support in the Northern Ireland Committee for the intention to stop the proliferation of claims for so-called "nervous shock". We have found in the administration of the scheme —and particularly during the last two years—that we are faced with a very large and growing number of what are called "nervous shock" cases. During the last 12 months 42 per cent. of all claims were for so-called nervous shock —that is some 4,000 out of 9,500 cases. The average award was for £300.

I gave the Northern Ireland Committee four examples of those claims and perhaps I might just quote them again. In the first case to which I wish to draw attention a landmine exploded three-quarters of a mile from a claimant. Sedation was needed. The award was £150. In another example a bomb exploded 200 yards from a motorist. He did not report to the police for three months or seek immediate medical help. Later he felt anxious and unable to relax. The award was £250.

The third example involved an explosion 400 yards from a claimant's home. His symptoms were insomnia and headaches that were considered likely to clear up within a year. His award was £350. Another example involved a claimant who was depressed and anxious because of bombings and shootings at his place of work. His compensation was £200.

I have no doubt that hon. Members who represent Northern Ireland constituencies can quote their own favourite cases of "nervous shock". In one instance a whole family of nine—father, mother, brother and six children—claimed compensation for nervous shock. I am afraid that, because of the situation in Northern Ireland, there could be countless claims of this nature. Indeed, by now I could almost put forward half a dozen such claims myself.

I think it would be fair to say that both in the Committee and outside it in subsequent consultations I have found general support for my view that the scheme was never intended to work in that way. Indeed, one hon. Member suggested that there should be no compensation at all for nervous shock. These so-called nervous shock cases—if they are minor—are very difficult to prove or dis-prove and even more difficult to assess in monetary terms as between one case and another. On the other hand, let us not forget that there are and will be cases of substantial mental pain and suffering arising, and we should try to ensure that we give reasonable compensation in those cases.

But the view that I have formed—and I have had medical advice on this—is that the extent of temporary mental pain and suffering in the many cases such as the four I have quoted is not much different from that experienced by many people in the ordinary course of day-to-day life. Yet the existence of the opportunity to claim compensation for nervous shock under the compensation scheme undoubtedly encourages the proliferation of these small claims. Dealing with them has become a major problem and I think I was justified in using the term "abuse" to describe to the committee the scale upon which this is now happening.

We are now providing, therefore, that where a claim is made for pain and suffering arising from so-called "nervous shock"—which we describe as mental reaction to a crime of violence—it must be sufficiently serious to justify £1,000 compensation before any is payable. Above the minimum, however, the full amount will be payable without any deduction. As a result of this new approach, I have been able to look again at the two minima I proposed originally, totalling £350. I considered simply reducing these to a total of £250, but after discussions with the right hon. Member for Down South (Mr. Powell) and the hon. Member for Antrim, South (Mr. Molyneaux) I felt that even this figure might hit harshly at policemen and others deserving compensation and real sympathy for their physical injuries.

The new draft order therefore includes only a simple minimum of £150, which is in keeping with changes in the value of money and the present minimum of the Criminal Injuries Compensation Scheme in Great Britain. Moreover, it will now still be a threshold and not a deductible excess on all cases. I would stress, however, that I shall be watching the scheme very closely indeed to see whether in practice this new approach helps us to eliminate the undeserving cases and also helps us to speed up the handling of claims as a whole.

I have already mentioned Article 8. Its chief purpose remains, however, to enable the Secretary of State to make discretionary payments to widows and dependent children whose compensation has been reduced by the deduction of pensions and other benefits; to bring the amounts payable in such circumstances up to a possible £5,000 for a widow and £500 for each child. The overall limit of £2,000 on discretionary payments to the children in any family has now been omitted, so that up to £500 will be payable to each of any number of children. The provision remains discretionary, but its application will be kept under review so that we can see if it continues to meet a real need or if it should be made a statutory right at some future date.

Article 9, together with Article 3 (1)(d), provides that where a victim dies but not as a result of his injury, his claim does not pass to his estate, as it would at common law, and no further payments will be made in respect of the victim's own claim. However, his dependants may claim for pecuniary loss suffered by the victim between his injury and death, and any person may claim for expenses incurred in connection with the victim's injury. Of course, if the victim's death was a result of his injury, his dependants are entitled to full compensation.

Article 12 deals with benefit allocations and allows discretion to recover public debt. There was general agreement on the matter in Committee.

Article 13—I am concentrating on those points which have been especially the subject of comments and controversy—introduces a requirement that the Secretary of State's determination of an award to a minor must be approved by the county court. This meets a point raised in Committee by the hon. Member for Belfast, East (Mr. Craig), and I believe that the change will be generally welcomed.

Article 14 is now the article covering appeals. There was considerable feeling, which I shared, that if the Secretary of State were to be given power to determine applications for compensation, all his decisions, except those which are specifically stated to be discretionary in Article 8, should be clearly subject to the overriding jurisdiction of the courts on appeal. Any doubts there may have been have been removed by a number of small but significant drafting changes throughout the order and I am satisfied, from consultations and discussions, that we have fully met the points made to us.

Article 15 is another new provision. It allows an applicant who feels after six months that he has given the Secretary of State enough information and enough time to determine his claim the right to seek a declaration to that effect from the county court. If the court gives a declaration, the Secretary of State must determine the claim within the next two months or the applicant will be able to have it determined by the court. It is certainly not our intention to handle any claim in such a way that a declaration of delay can be obtained against us, but I believe that the very existence of this provision will be a reassurance to applicants and to those who may feel that the withdrawal of initial jurisdiction from the courts could lead to undue delays.

The remaining articles contain provisions which are either already in the 1968 Act and have worked satisfactorily or which were favourably received in the original proposal for a draft order.

This draft order has reached its present form in which it has been laid before the House as a result of a great deal of fruitful consultation both inside and outside the House. I have been very much helped by the constructive advice of hon. Members and I commend the draft order to the House.

11.20 a.m.

Mr. Philip Goodhart (Beckenham)

We welcome the order. In the United Kingdom as a whole and, perhaps, particularly in Northern Ireland, feelings have run high in the past because compensation for injuries to suspected terrorists or the relatives of suspected terrorists sometimes exceeded compensation paid to widows of men in the security forces who had been killed by terrorists. It needed only a few bad cases to stir feelings of widespread outrage and the feeling that the existing law was idiotic and that the taxpayer was being fleeced for absurd purposes.

We asked for quick action to remedy the situation. I cannot say that the Government have acted with great speed, but we certainly cannot complain that their action was not comprehensive when it came. In particular, Article 6 dramatically closes the loophole that permitted the payment of these substantial sums to people suspected of terrorism. The powers vested in the Chief Constable—which seems to mean any senior police officer— will be extremely wide. They will be difficult to challenge in the courts. However, I do not complain about that.

I particularly welcome Article 6(10) which says: The Secretary of State may withhold payment of all or part of compensation until the applicant has complied with all reasonable requests for information and assistance which might lead to the identification and apprehension of the offender. This had sometimes been the practice in some courts under the old Act, but this regularisation of the position should be of considerable help to the police in certain cases.

I give a rather more qualified welcome to paragraph (4), which, as the Minister has said, lays down that in cases of nervous shock the claimant must prove damages of £1,000 or more. There was a case of nervous shock in the Northern Ireland Committee when the Minister of State revealed that in 1976, out of 9,500 claims, some 4,000 were for nervous shock. I note that during that period only one award of £1,000 was made. Therefore, effectively and at a stroke—or at least with a paragraph—the Minister of State has taken a giant step forward to unclogging the administrative machine.

There has been some criticism of the Minister for making the nervous shock provision so high, but I do not share those criticisms. In February the Minister told the Northern Ireland Committee that 32,422 claims had been received up to the end of December 1976 and that there was a backlog of 13,000 cases still to be settled. Presumably, the backlog position has not changed dramatically in the months that have passed since. When the order comes into effect, will the backlog of cases be dealt with under the old rules or under the new, because, clearly, the new rules will have a particular effect on the settlement of the nervous shock cases?

Mr. Concannon

Obviously, the cases that have already been sent in must be dealt with under the old rules and we shall have to contend with all the claims that are already in under the old system. The new rule will start to have effect upon applications sent in after the date of operation of the order.

Mr. Goodhart

I am grateful for that clarification.

I am sure that the order will not end the debate on the subject or prove to be a perfect answer to all the problems, but I am also sure that the changes that the Minister of State has made as a result of the discussions in the Northern Ireland Committee have substantially improved the order, and we congratulate the hon. Gentleman on his substantial step in the right direction.

11.27 a.m.

Mr. J. Enoch Powell (Down, South)

Only a few months ago there was no Northern Ireland Question Time in the House and there was rarely a week passed by when the complaint was not ventilated in the House and in the Northern Ireland Press that there were various scandals attaching to the payment of compensation for criminal injuries under the existing code, which we are superseding today. These scandals arose from a sense both that too much was being paid undeservedly and that there were claimants who were being unfairly treated. Those voices, which were so frequently and almost continuously heard, have recently fallen silent, and that silence is eloquent of the improvement which those who have addressed their minds to it recognise that the order will bring.

My hon. Friend the Member for Down, North (Mr. Kilfedder)—who is not assisting our deliberations at the moment—indicated in Committee his unreserved opposition to the proposals in the order and promised to oppose the order when it was produced in the House. I do not know whether he will appear later to cause bells to be rung to no purpose, but I muse on what we should deservedly be told by our constituents if it were known that we had set ourselves in unconstructive opposition to the proposals for improvements which are indicated in the order.

My right hon. Friend the Member for Belfast, East (Mr. Craig) was sharp in drawing attention to the fact that there was a basic change in the onus of the law arising from the order, and that a right that had hitherto, in the first instance, been claimed by the citizen in a court would in future, in the first instance, be claimed by him from the Executive. However, the sharpness of my right hon. Friend's criticism has in many respects been met—although it was a criticism that he was certainly justified in making.

The Minister of State has drawn attention to the major improvements which have been made, amounting in some cases to a rewriting of a whole article, since the proposal stage of this order. I believe that that fact is something which should be more widely known in Northern Ireland.

On 22nd June there was a leading article in the Belfast Telegraph—usually more accurate than it was on this occasion—which informed its readers that It is unfortunate, to say the least, that Members of Parliament have only a 90-minute debate in which to advance their arguments for further changes. There are three matters in that statement which are wrong and ignorant. The first is that we do not have only 90 minutes. Technically, we have until 5.30 p.m.—I shall get it right this morning, Mr. Speaker, even though I got it wrong last night. Secondly, no changes can be made to this order at this stage. The changes had to be made before this stage. Thirdly, no fewer than five hours were spent in Northern Ireland Committee by the Minister of State and hon. Members in debating the proposals for the order.

I make this observation not for the ungrateful and usually unrewarding purpose of criticising the local newspaper—

Mr. Gerard Fitt (Belfast, West)

The Belfast Telegraph Gallery correspondent will make a claim for criminal injuries for nervous tension.

Mr. Powell

We shall see about that, and see whether we can give any help should that untoward event occur.

But there are ill-intentioned and ignorant persons who make it their business to assure the public in the Province that their needs, their rights and their requirements of the law are in no way met or voiced in this House of Commons or by those who represent the Province in this House. The fact is very different. It is right that it should be understood that in a case of this kind, which comes right home to the victims of terrorism in all classes in the Province, a very substantial effect has been produced by parliamentary action on what would otherwise have been the proposals that would have become the law.

The fact is—and this event is proof of it—that the 12 hon. Members—that is a charitable total to mention, but let us stick to the statistics—who sit for Northern Ireland in this House have shown that they can produce substantial ameliorations on behalf of their constituents. I promise you, Mr. Speaker— and I hope that this is not improper in view of your forthcoming judicial capacity in this context—that when there are more of us we shall do an even better job more effectively and more often.

The purpose of the order is threefold, and all three purposes arise on matters in the order which have been altered since the proposals were put forward. The first of these three purposes is to prevent abuse by the payment of sums that clearly are not deserved. The second is to prevent scandal by the payments of sums— often in the past large sums, I am afraid —in cases which, on any view, were undeserving. The third purpose is to expedite the settlement of claims, especially where a lapse of time between the event and the payment of compensation must be a cause of hardship and distress to the victim.

I shall not be exhaustive in the points to which I wish to draw attention, but I want to survey some of the changes made in the order which directly con- duce to one or more of the three purposes.

The first purpose was the one that presented the most difficulty. This is the one which has enshrined in paragraphs 4 and 5 of Article 6. The words in which the effect is partly expressed are not, I must admit, the finest examples of the English tongue to find their place in an Order in Council. I do not think that the expression his mental reaction to the act arising out of which the application for compensation is made is a sentence which would commend itself to anyone as being either clear or beautiful English. With some difficulty, however, it is capable of being construed, and it conveys the acid purpose of the major change which the Minister of State has contrived to bring about.

This alteration is a rare instance of the triunmph of politicians over experts. In this case the experts were the experts in parliamentary drafting and in medical advice. As we remember from the speeches in Committee, the doctors said that we could not do it, the draftsmen said that we could not do it, but Members of Parliament said that it had to be done whether it was possible or not, and, lo and behold, it has been done.

The difficulty was to eliminate abusive claims for minor sums, or relatively minor sums, for mental shock without imposing hardship and unfairness on other claimants. The difficulty with which we were confronted was the allegation that mental shock cannot be defined or ascertained, apart from the physical effects. Therefore, one had to resort to a blanket deduction—I shall come to the point about deduction and exclusion in a moment.

We see the answer in Article 6. We have defined mental injury—clumsily, I admit, but nevertheless successfully—and we have established that only where that injury was so appreciable as to attract compensation of £1,000 or more will it fall within the compensation code. That has made it possible not to impose a Draconian exclusion or deduction upon other claimants, nor even to exclude payments for mental injury where the mental injury is a concomitant part of the physical injury that the victim has sustained.

We are able to move on to deal with a deduction figure which in many cases would have amounted to £350. From the outset it was manifestly unfair that £350 should be docked from everyone's claim, whether that claim was for £10,000 or for £400. That is an inversion of the Socialist response by "taking from him that hath not and giving to him that hath".

The first necessity was to substitute de minimis for up-the-scale deduction, which the Minister has done in the new form of the Article. We now have a de minimis figure, and once one is above that one gets the claim in full. One can quibble about whether £150 precisely represents the old exclusion value, but I feel that despite the optimism of some spokesmen on the Treasury Bench, whatever is amiss at the moment inflation will put right, perhaps not before sunset but certainly in the measurable future. With that gloomy prediction I abstain from criticising the figure of £150. That £150 is effectively a substitution for the £350 in the original order. I hope that when the hon. Member for Belfast, West (Mr. Fitt)—who at first was a little churlish in his reference to the order—further studies this article, he will take a more generous view.

There is a moral which I hope I shall be permitted to draw from the Minister's conclusion in that matter to a parallel case which arises under the Criminal Damage Order, which I imagine will, before long, be coming similarly before the House. That order, also, in its original proposal form includes an up-the-scale deduction. I am sure that the logical as well as clear mind of the Minister will not be able to resist the conclusion that he must make a similar amendment in those proposals before he presents that order to the House.

I come now to some of the other major matters of change and improvement. There was never any chance—and the Minister must have known it—of stopping at the fourth child or of scaling down compensation for those on widow's benefit who were injudicious enough to have more than four dependent children. We are glad that that was put right, but it would be hypocritical to pretend that there was much likelihood of the Government ever getting away with a proposal of that sort.

On the other hand, it is a real concession that the periods within which certain steps have to be taken have been substantially increased. I appreciate that in the order the Secretary of State always has the discretion to allow an increase. But it is one thing to say to a constituent, "It is true that you are out of time, but the Secretary of State, out of the goodness of his heart, may relax the rules for you." It is a different matter to have the guarantee in the order itself that if action is taken within these periods—and the primary action is of a sketchy kind which it should be possible to take quickly in most cases—the claim will be valid for consideration. It was therefore right for the Government to increase these guaranteed periods.

My hon. Friend the Member for Armagh (Mr. McCusker) will be more pleased perhaps than others—although we are all gratified—at the removal of the deduction of society or union benefits. It is a point that my hon. Friend made strongly in Committee. I should have thought that if the Government had attempted to proceed there would have been very little sympathy for them from their own side or from this for bringing into account benefits which are not State benefits at all nor, in the ordinary sense of the term, insurable payments, but are part of the life and habits and proper prudence of members of our society. Certainly the Government have done right to eliminate that deduction.

Mr. Concannon

The right hon. Member is being fair. It is worth pointing out that these were included in the old Act, which we have taken out.

Mr. Powell

I acknowledge that this is an improvement. The Minister is welcome to draw attention to it.

I turn to Article 15, to which the Minister referred. When the Minister brought the order forward in the first place, he gave a guarantee that everything in it— that is to say, everything that the Secretary of State did or decided—should be appealable. He has been scrupulous in dotting the i's and crossing the t's to ensure that that was fulfilled. But there was a big "t" which was uncrossed and which is dealt with by Article 15. That is the eventuality of the Secretary of State doing nothing, or doing nothing in the view of the claimant; and while that is not always the accurate view, it is an important point of view to the claimant. As the order stands, the claimant, after six months, will have it in his own hands to bring the matter to court. This situation is, I believe, of considerable satisfaction to my right hon. Friend the Member for Belfast, East because it goes a considerable way—certainly not the whole way—to meet his point that jurisdiction was being transferred from the courts, which is basically the proper place, to the Secretary of State.

I would put to him the view of my hon. Friends and myself that now we have Article 15, the probable gain in expedition in settling claims, together with the appealability, is a net benefit, on balance, to the claimant. We should therefore rest satisfied with the shift in the law which has taken place.

I return to Article 6(2) which ousts the upper limit where the injury is the result of terrorist action. The debates at earlier stages of the gestation of this matter took place while daily we were receiving news of the atrocious murders of leading figures in commerce and industry in the Province. I am not suggesting, and it is no service for anyone to allow it to be supposed, that the murder of the humblest and poorest person is any different from the murder of the most eminent, wealthy and powerful. They are in this respect all alike. But it was, I believe, the fact of that concurrence to which I have referred which at any rate assisted the Minister of State in removing what was always an injustice— that is, that there should be a limit upon the compensation which can be paid for injury or loss as a result of terrorist action.

Here is something which witnesses the constructive spirit of this order in the prevailing circumstances of the Province. If my words can reach the relatives of those who died in those weeks, perhaps it might occur to them that indirectly they helped to help others. As the hon. Member for Beckenham (Mr. Goodhart) said, we have been anxious for this order. When it was produced in January, I expected, and most of us hoped, that it would be in force before now. I am sure that the Minister thought the same. I understand that it will come into effect not later than next month. Perhaps pre- cision can be given to that by the Minister.

Could he also make something else more precise, additional to his response to the hon. Member for Beckenham? On what does the date of commencement bite? If the date of coming into force is 1st August, for instance, does it apply to claims in respect of injuries inflicted on or after 1st August, to claims made on or after 1st August, or to claims paid on or after 1st August? There has to be a cut-off period. The Minister of State has made it clear that most of the cases in the pipeline will unfortunately not be able to benefit from the order. That was one of the reasons that we were anxious to press ahead with it. We should be perfectly clear where the cut-off line occurs, who will benefit from the improvements and who will not.

I conclude by joining, as we are all entitled to do because we all have had a part in this, in claiming that we have made an improvement in the law. Although we labour under limitations that we were examining in the debate last night on the legislative process for Northern Ireland, we can show that, with good will and earnest endeavour, substantial modification and improvement can be made to the law that is to apply in Northern Ireland.

11.50 a.m.

Mr. William Craig (Belfast, East)

I think that I can go a long way with the right hon. Member for Down, South (Mr. Powell) and I should like to start where he almost finished, and that is by saying how relieved I am that the Government have seen fit to draw a distinction between injuries arising out of the acts of unlawful or terrorist organisations and ordinary crime. In the present situation in Northern Ireland that is a perfectly proper distinction to make, and if it had not been made great injustice would have resulted.

I appreciate the efforts that the Government have made to improve what was, in its initiation, a bad order indeed. It has been improved substantially. Whether I can feel happy about it is quite another thing, because there are some aspects of the order that worry me. No matter how well meaning the Government are, they are not Santa Claus, and somebody has to be the watchdog of the citizen's interests.

One of the basic objections to this new procedure dealing with perhaps the most difficult type of case that ever comes before a court of law—injuries to the person—is the element of secrecy that comes into the situation. One of the benefits of having settlements mentioned in court was the public knowledge that arose from that. Under this procedure, an accommodation, an agreement, a settlement call it what one will, can be arrived at, and there will be no public knowledge of that settlement. That disturbs me, because when public moneys are being paid out we are entitled to know how and in what amounts they are being paid out. That is the public interest.

Now I come to the private interest, that of the citizen. I am in no way suggesting that any Government Department would wilfully go out of its way to deprive the citizen of his rights, but particularly in this sort of case it is a matter of judgment between experts. There are not the hard and fixed facts such as one can get in damaged buildings. It is not just a matter of bringing in architects and measuring damages. It is not even an exercise by an accountant to determine the loss of profits of a business.

To ascertain the extent of an injury to a person and the consequences of that injury is terribly difficult indeed. I find it a little frightening that here, in the first instance, the applicant is forced by law to disclose to the Department all the information and evidence that he has about his injury, and the Department on its own reaches a determination which becomes an offer.

It is not, as has rightly been said, a matter of "take it or leave it" when the offer is made, but if the person concerned decides not to take it and wants to fight the offer, he is at a disadvantage from the start. The Department has all the applicant's information, but the applicant's advisers do not have all the information that the Department has. It is difficult for the applicant's advisers to say to him "We think that you should take this to the county court" or perhaps "You should take the offer". It is an onerous responsibility that rests on the applicant's advisers.

There is this other deterrent factor that has not been faced. We do not know what the Department's intentions will be when a determination is made and an appeal goes to the county court. Will the Department make a lodgment of the amount that was reached in the determination, or will it reserve the right to vary that amount? I do not need to remind hon. Members that the amount of the lodgment will decide who will pay the costs in what could be a costly court action. I think that we are entitled to know at this stage how the situation will be managed. In this new approach, if it is to be followed through, the applicant deserves to get the benefit of the doubt. He should have no obstacles or financial fears placed in his way of appealing to a court to have a most difficult matter arbitrated upon.

There is another aspect that needs to be considered. One of the advantages of going to court, even if it is only to get a settlement approved, is that one can look at all the developments that are likely to arise from that injury. We all know that one cannot, at any point in time, say that there will not be later developments in the lifetime of the injured person.

I had the experience only a fortnight ago of a case that was settled. The parties were on their way to the court to announce the settlement when the news came through that the applicant had had a serious relapse. It was possible to say to the court that we were no longer able to commit ourselves to the settlement. We suggested to the court that an interim award be made and the matter be determined when the full extent of the consequences of the relapse were known.

Under this new system, when the Department makes a determination, what arrangement can be made that will envisage a deterioration in the future, at whatever time the future might be? One could always cope with this in court when putting a settlement on record by saying that there was a possibility, or probability, that certain things would become more apparent in the time ahead and reserve one's right to go back to have the matter considered again.

If one is looking for the speedy and expeditious settlement of claims in respect of criminal injuries it is important that one should be able to undo mistakes arising out of the hasty judgment of a situation. I believe that there is no alternative in this sort of case to putting the matter before the court right from the first instance, no matter how well meaning the Government might be in this regard.

Let me give some examples of the sort of problem that the Government and the applicant's advisers will have to face. Article 6, quite understandably, says that the Secretary of State may withhold payment unless the applicant accedes to reasonable requests for information and assistance leading to the identification of the offender. Who will be the arbitrator in this situation? How will the applicant know the basis upon which the Department has decided to withhold payment? This is a very difficult matter for everybody concerned. Yet I fully understand the motives that lie behind it. Indeed, I agree with them. It is the duty of every injured person to do what he can to assist in the arrest of the offender. That is just one of the easier problems that have to be grappled with.

We have all this business that is arising now of what I regard as an extension of the doctrine of contributory negligence. In fact, we have it written into some of the recent proposals that provocation can be weighed in relation to the amount of damages involved. These are not issues which should be settled in private negotiations between an applicant and a Department They are issues that need to be assessed with the full assistance of the entire judicial process.

Just as I have mentioned that, I am beginning to think aloud as to why in another order that was recently considered we had specific reference to "provocation" but it does not apply in this order, though I have no doubt, from the way in which the courts are tackling the situation today, that this is the sort of thing that is more and more weighed in the balance, and properly so. But it only emphasises my feeling that this very difficult type of case should go to the court.

Mr. Powell

In fact, there is reference to "provocative behaviour" in Article 5(2).

Mr. Craig

I am grateful to my right hon. Friend. I must confess that I had not taken that on board. Perhaps, having expressed the worry that I had in my mind, I shall leave others to ponder.

That brings me to the point on which I want to register a loud protest. This order originally, in my opinion, was very badly conceived. It was badly conceived, I believe because there was a lack of adequate consultation. It was outrageous to have the Bar Association, the Law Society and the police all writing to complain that they had not been consulted. We all duly registered this protest in Committee.

But what do we find now? We have the order before the House for approval, and those interested and learned bodies have not had an opportunity of giving their opinion on it. When I approached some of those bodies at the beginning of this week, they were astounded to hear that the order was about to come before the House. They did not even know that its final draft form had been settled. I do not know about other hon. Members, but it was only last week that I became aware of the final form of the order. It is a very short time in which to sit down and study these problems.

In my opinion, that is just not good enough on such an important issue. With all the deficiencies of direct rule, there is a greater onus on the Government to make sure that there is reasonable and adequate time for consultation.

Mr. James Kilfedder (Down, North)

Would my right hon. Friend agree with me that if this order was presented to a Stormont Parliament it would reject it —certainly if it were presented as a Bill in its present form?

Mr. Craig

That is a very abstract question. I feel pretty sure that there would be amendments, though whether they would be for the improvement of the Bill I do not know. I should much prefer this sort of measure to be dealt as legislation in a Parliament, and preferably in a Parliament of Northern Ireland.

I do not want unnecessarily to weary the House. I appreciate the efforts that have been made to improve the order. I still do not think that it is a good order. I think that it will create a lot of trouble and will not achieve what we had hoped it would, that is, more efficient settlement of just claims.

12.4 p.m.

Mr. John Dunlop (Mid-Ulster)

At the back of my mind, Mr. Speaker, there is still the injunction of your goodself last night about Methodist local preachers, and I do not intend to adopt the technique of having a lengthy introduction to take up time, or an exposition of three points and then the application, which is the technique that we were taught. However, it could be that all these features may be incorporated in what I have to say this morning.

The term "nervous shock" has been mentioned often in this debate. My house was bombed three times, and on all those occasions we were on the premises. When I say "we", I include my wife's aunt, an old lady of 84 years of age. Largely, her reaction to the attack on our property, amidst all the falling ceilings, broken windows, smashed doors and so on, was one of fierce anger and a desire to get back at the filthy murdering thugs, as she called them, who had carried out the attack.

But that good old lady, who has a very resilient nature, never dreamed of applying for compensation for nervous shock. She would rather have had the means of hitting back at the people who so damaged our property. It could be that some of my performances in this august Chamber could be attributed to the ravages of delayed nervous shock as a result of the bombing of my home.

Seriously, however, I want to speak on an aspect of this order which has caused great disquiet in Northern Ireland and caused pain and anxiety to the relatives of the victims of terrorist action. I refer to the inordinate delay of inquests into the cause of death of the victims of terrorist action.

I can cite a case which happened in my own village. Mr. W. J. McCutcheon, commonly known as Jack McCutcheon, a part-time member of the UDR, was mercilessly gunned down as he came out of his workplace at Toomebridge on 1st April 1976, at about 1 o'clock in the morning. Until now, there has been no inquest. Consequently, there is no death certificate, and there are many matters that need to be settled in his affairs which cannot be dealt with until a death certificate is issued.

That example could be multiplied many times. The mental stress and anxiety felt by the relatives of the victims of terrorist attack is all revived when the delayed inquest is held, and there is also the psychological factor that the healing effect of time for the wounds of sorrow and distress is delayed, too.

I ask the Minister to use his good offices to bring about speedier inquest into the deaths of those who have been mercilessly murdered by these terrorists who infest our land. This would mitigate to some extent the distress that is occasioned to the relatives and those who are seeking to square up their affairs and possibly bring forward the compensation which they so richly deserve.

12.9 p.m.

Mr. McCusker (Armagh)

When we first met in the Northern Ireland Committee to debate the proposals for the draft order, I described the situation which existed in Northern Ireland at that time, and exists still to this day, as a lawyers' bonanza, as well as a terrorist bonanza. That comment did not go unnoticed in certain parts of Northern Ireland. I was led to conclude that those who I had always believed to be primarily concerned with the truth did not like a dose of it when it was delivered to themselves.

I welcomed in particular the proposals in this order which attempt to take account of the abuses which were being perpetrated by claimants alleging that they were suffering from nervous shock. The Minister will know that it was as a consequence of a number of questions put to him that some of the more ludicrous aspects were exposed. He told us that there have been tens of thousands of such cases. In fact, the sample is big enough now to enable certain other conclusions to be drawn from it.

I suggest that the Minister should analyse the statistics relating to the tens of thousands of claims. I should be prepared to wager that we could draw circles around areas of Northern Ireland from which the vast majority of these claims have originated. Within those circles it would be possible to pinpoint certain office buildings from which many thousands of claims have originated. I am not saying that these people tout for business, but what is happening seems to be habit-forming in certain districts, so that it would appear to be a question of whose turn it is next to get £200 or £300 from the kitty.

I welcome any attempt to deal with this abuse. When the order was first introduced I, together with many other people, welcomed it because I thought it was a widows' charter, as described by the media, but we were disabused of that idea fairly soon afterwards when the order was examined more closely.

I have a constituent whose husband was a member of the UDR. He was killed in a Republican area while delivering the post. He was in full-time employment as a postman and was a part-time UDR member. In consequence of his death, his wife receives industrial death benefit, some Post Office superannuation payments, and family allowance. She has been advised that as a consequence of the payment she receives from those source she is better off now than she was when her husband was alive. She is trying to rear two young children in very difficult circumstances.

I assumed, when I first read the proposals in the draft order, that it was intended to take account of a person in that situation. I hope that the Minister will be able to assure me—and through me a number of others in Northern Ireland—that people such as that young widow will be getting some consideration.

12.13 p.m.

Mr. Concannon

I have been rather taken by surprise at the swiftness with which we are getting through the business this morning. I thank the Opposition Front Bench speaker, the hon. Member for Beckenham (Mr. Goodhart), for the way in which he welcomed what has been done. He rather chided me about the slowness, but the importance of this matter, and of trying to get it right, has been emphasised by other hon. Members.

The right hon. Member for Down, South (Mr. Powell) referred to the way in which we had dealt with this new system introduced by my right hon. Friend the Secretary of State. We have been feeling our way. Basically, we have set a precedent which we believe to be a very good one. There may be criticisms about direct rule and how the system words, but the draft order is a considerable improvement. There has been good will on both sides, and we have seen what can be done in this respect. This is, I believe, a good way in which to treat orders, and I am sure that other hon. Members will be looking at this aspect for the future.

As to the date of application of the order, we are aiming to get this done by the middle of August. The order applies to injuries sustained on or after the commencing date. Any incidents which took place before that will have to be picked up and worked through on the original proposals, and any dating from commencement of the new order will come under it if it is passed today.

The hon. Member for Armagh (Mr. McCusker) spoke of a widow in his constituency. I do not want to discuss particular cases, but it is not uncommon for pensions and benefits payable to a widow and her children to be almost as great as and sometimes more than the late husband's contribution to the family. This position often reflects generous State and occupational pensions, so that there is little or no pecuniary loss to the family and little or no compensation payable.

This is one of the problems that we have with the Services and with the police and those on State or occupational pensions. It is not a fair statement to say that people get no compensation. Even if we have gone as high as £40,000 we may find that at the same time the benefits which accrue are even more than that, so that no compensation is payable.

The order provides that where compensation to a widow or child is reduced in this way by the deduction of benefits, the Secretary of State may bring it up to what it would have been if no benefits had been deducted, up to a maximum of £5,000 for the widow and £500 for each child. The amount to be paid will therefore vary from case to case.

In future cases any possibility of a discretionary payment can be dealt with through the normal negotiations without any delay. The order, however, provides respectively for payments to widows awards under the 1968 Act are affected in this way by the deduction of benefits, and also to those widows who would have been so affected but who have made no claim because they knew they would get no compensation under the old Act. I hope that that covers the point made by the hon. Member for Armagh.

We have already identified cases to be given discretionary payments when the order becomes law. If other cases come to light and the hon. Gentleman would like to send details of them to the Department, they will be looked at. I think I have covered the point relating to those widows who have been advised that it was a waste of time putting in for compensation because their State benefits would counteract it. The best course is for them to contact the office again and put their cases up to us. We shall also be looking through them ourselves, but it is just as well to have a cross-check. We shall try to pick them up.

The right hon. Member for Belfast, East (Mr. Craig) asked about consultation. When in May 1975 the committee of officials was set up to examine the existing scheme, the Department wrote to a large number of bodies, including the Law Society, inviting comments. My file is full of letters from all sorts of bodies including the Law Society, which have been in continual contact with me. We have taken full account of the views of the bodies to which reference was made. They have not been shown this draft order because the place to deal with it is in the House itself, where the debate takes place on it, but I have taken into account many of their views, together with what has been said by hon. Members in the Northern Ireland Committee. This has enabled us to make changes in regard to some of the points.

Mr. Powell

It also has to be taken into account in this context that, unlike a Bill reprinted after Committee, the order cannot be changed once it has been fixed by the Minister, and therefore it would be a feast of Barmecide if the bodies concerned were consulted upon the actual draft order itself. There is not the real parallel which there ought to be —there is no disagreement about that— with a Report stage and a Third Reading in this respect.

Mr. Concannon

This is why we dealt with it by means of a proposal for a draft order, so that we could take account of people's views once they had read it. From the general comments that have been made, I think it has been accepted that I have taken these views into account.

Dealing with the point raised by the hon. Member for Mid-Ulster (Mr. Dunlop), I can assure him that I am anxious that there should be no distress caused to relatives.

The right hon. Member for Belfast, East and others have questioned the basic thinking behind the order. I have probably covered most of the points that have arisen. The change is being made from the present system to what could be termed an administrative system. A case can be made in favour of the present arrangements because there is a long and successful history in Northern Ireland of determination of compensation by the courts. Hon. Members are properly concerned to protect the rights of applicants against what they fear may be an arbitrary and bureaucratic machine. I can see what lies behind the concern but believe that there is sound justification for the change.

The present scheme was introduced nine years ago and has remained unchanged since. Regrettably, the situation for which it was designed is not the one with which it has to contend. It has come under extremely heavy pressure because of the sheer volume and the complexity of the cases with which it has to deal. Despite the efforts of all concerned, the fact remains that 13,000 claims have yet to be settled. On present form, taking the average, 2,000 are likely to require a full hearing in the courts. These hearings, taken together, could involve a minimum of 400 sitting days—a heavy commitment for an already hard-pressed court service.

What of the remaining 11,000 cases? In the great majority there is no disagreement between the parties about the amount of compensation which ought to be paid, but the law requires that ail agreed settlements must be ratified by the courts. This involves further court, legal, and administrative time. It adds unnecessarily to the time and cost of operating the scheme without conferring any benefit upon the applicants who, in virtually every case, have accepted my Department's offer. The process serves only to lengthen the proceedings and to delay the making of a payment.

Article 3 provides that it is the Secretary of State who has to determine compensation. I add that he must do so in accordance with the provisions of the order. It will be the Secretary of State's intention, under the order, to determine claims wherever possible on the basis of agreement. The removal of the need to obtain the consent of the court should hasten the payment of compensation. If agreement cannot be reached, the applicant has a right of appeal to the county court from which further appeals may go to the High Court and the Court of Appeal for Northern Ireland.

This is precisely the arrangement which has worked satisfactorily in other criminal injuries legislation. It helps the applicant when agreement cannot be reached and protects him where there is doubt. We have written in provisions for strengthening the appeals procedure against decisions made by the Secretary of State. I hope that hon. Members can accept that we are trying to get rid of the backlog. I want to speed up the whole process and get the money to those who are in need of it, who deserve it.

When I first set out on this order there were difficulties between the draftsmen and my advisers. I took one approach intended to cut out abuse and the Committee showed me a different way, which I was pleased to accept. I know that there has been virtually no disagreement about this. We had to make a package deal, cutting out the nervous shock cases, and at the same time look afresh at the £350 mark. I am glad that we were able to come down to £150. I thank hon. Members for their help in Committee. I think it will be accepted by all that we have come out with an order that is much improved.

Question put and agreed to.

Resolved, That the Criminal Injuries (Compensation) (Northern Ireland) Order 1977, a draft of which was laid before this House on 21st June, be approved.