HC Deb 06 December 1995 vol 268 cc444-61 8.22 pm
The Minister of State, Home Office (Mr. David Maclean)

I beg to move,

That the draft Criminal Injuries Compensation Scheme, which was laid before this House on 16th November, be approved. As hon. Members will recall, the passage last month of the Criminal Injuries Compensation Act 1995 paved the way for a new criminal injuries compensation scheme. The Act provides that a draft of the new scheme must be approved by affirmative resolution of each House. The draft was laid on 16 November and the House's task tonight is to decide whether it should approve it.

The criminal injuries compensation scheme was introduced in 1964 to provide compensation from public funds for blameless victims of crimes of violence and to those injured in attempting to catch criminals or prevent crime. Payment is made in recognition of the public sense of responsibility for and sympathy with the innocent victim.

Under the current scheme, compensation has been assessed by the Criminal Injuries Compensation Board on the basis of common law damages. That requires finely judged assessments of the degree of suffering and financial loss, which tend to make speedy decision taking more difficult. They also make it hard to predict and control the costs of the scheme, which have been rising at an unsustainable rate while, despite the very best efforts of the board, the backlog of unsettled cases has been continuing to rise.

Against that background, we sought to introduce a new tariff-based scheme in 1994. The scheme moved away from common law damages and provided for payment to be made on the basis of a scale of awards for injuries of comparable severity, with the scale or tariff being based on previous awards made by the board.

In April this year, however, the Judicial Committee of the Privy Council ruled that the introduction of the tariff scheme had been unlawful. That judgment related solely to the method of the tariff scheme's introduction, not to its intrinsic merits.

The ruling necessitated the immediate withdrawal of the tariff scheme and the reinstatement of the former scheme, based on common law damages. It also meant that some applicants were disadvantaged because they would have been treated more generously under the tariff scheme than under the reinstated scheme. They included, for example, some relatives of murder victims.

The eligibility criteria in fatal cases were wider under the tariff scheme than under the common law damages scheme, allowing long-term unmarried partners of the deceased to qualify for an award, as well as the parents of a child of any age. Under the enforced reinstatement of the common law damages scheme, those applicants lost entitlement to an award—an unfortunate consequence of the withdrawal of the tariff scheme necessitated by the House of Lords' judgment.

We remain firmly of the view that a tariff-based approach was right. A tariff scheme is easier for victims to understand. It is easier to operate, so applications can be dealt with more quickly. It also enables costs to be controlled and predicted more easily.

The legal judgment gave us an opportunity to take a fresh look at the tariff approach. In doing so, we took careful note of the criticisms made of the earlier scheme in Parliament and elsewhere. We noted in particular the concern that a too simple tariff scheme could have a detrimental effect on those most seriously affected by their injuries.

When, therefore, we invited Parliament to pass the Bill to give statutory backing to a new tariff scheme we sought to ensure that there were adequate powers to enable a number of significant improvements to be made. Parliament clearly agreed with that approach and the new enhanced tariff scheme proposed under the Act's new powers fully addresses the major points of concern that have been expressed.

Mr. Alex Carlile (Montgomery)

One point that the improved tariff scheme does not address is inflation. The Minister will be aware that common law damages are assessed not as at the time of the accident but at the time of settlement or trial and therefore take inflation fully into account. A degree of interest is added—usually 2 per cent. on personal injury damages. Since the tariff was devised, the award for rape in the civil courts has apparently reached £20,000. Under the tariff scheme, rape awards will be £17,500, so there is already a discrepancy between the tariff and common law damages. Will the Government give an assurance that the tariff will be regularly revised so that it does not lose pace with comparable levels of damages, which are low in the United Kingdom in any event?

Mr. Maclean

Of course we shall keep the tariff under constant review to allow for inflation and other factors. Without examining the individual example that the hon. and learned Gentleman has given, I remind him that the levels in the proposed scheme are already ahead of inflation.

When we introduced the tariff scheme, we rounded up the bulk of the figures, which are now set higher than the amounts usually awarded in the courts. In addition, when we built in the new loss of earnings provision for awards over 28 weeks, we did not extract from the tariff scheme, as we could have done, the element that is already included for loss of earnings.

The awards under the tariff scheme were the common law awards put through the computer to produce an average, which obviously included an element for loss of earnings. Loss of earnings is therefore taken into account in the tariff figures. As we are now introducing an element for loss of earnings over 28 weeks, we could have extracted the loss of earnings proportion from the existing tariffs. We decided not to do so, which shows that we are more than taking care of inflation.

I shall briefly rehearse the principal features of the new draft scheme. First, all successful claimants will receive a tariff award based on the injury suffered. In addition, in more serious cases, victims will receive extra compensation for loss of earnings and for special care. In fatal cases, payment will additionally be made for loss of dependency—the breadwinner's income—and loss of parental services. Reasonable funeral expenses will continue to be reimbursed.

We are doubling the upper limit for awards payable under the old tariff scheme from £250,000 to £500,000. We are making provision for recipients of higher value awards to opt for payment through the purchase of annuities. These arrangements are generally known as structured settlements. They can provide a stream of index-linked, tax-free payments, thereby considerably increasing the net value of the award.

There was a provision in the Act to extend the benefit of structured settlements to applicants under the current scheme whose claims have not yet been settled. The complementary change to the current scheme to permit that was made on 8 November, the day on which the Act received Royal Assent. The structured payment scheme has received widespread and warm support from members of the legal profession and from many others.

We issued a first draft of the new scheme in August. Those who studied it will realise that that was no small task. Given the additional features in the new arrangements—loss of earnings, loss of dependency and care costs, for example—we had to make it clear, in language understandable to the layman, exactly what was meant by the rather imprecise terms to which I have referred and what would therefore qualify under the enhanced tariff scheme and what would not. That is why the new draft scheme has, of necessity, to be rather longer and more detailed than any of its predecessors.

The first draft of the new scheme was circulated widely to Members of both Houses and to interested individuals and organisations, including the police, representative organisations, the Criminal Injuries Compensation Board, Victim Support, the Association of Personal Injury Lawyers, the Trades Union Congress, the Bar Council and the Law Society, as well as to equivalent bodies in Scotland and to many others.

We had meetings with many of these organisations to discuss the proposals. We received much useful feedback in writing. The draft helped to inform debate during the Bill's consideration in another place where, as a result, discussion focused not so much on the Bill's provisions but on the terms of the draft scheme. That, too, gave us some useful feedback.

In the light of that wide and most useful consultation exercise we made numerous changes to the draft scheme. Among the most significant, perhaps, were the achievement of greater consistency in the terminology used throughout the draft scheme, the inclusion of a table of contents, the more logical presentation of the scheme's provisions, the clarification of the criteria for waiving time limits and provisions relating to loss of income, the cost of special care in fatal injury awards and appeals.

We circulated the revised version of the draft scheme on 1 November, in time to inform debate during the final stages of the Bill. That enabled Parliament to complete its consideration of the Bill in the full knowledge of the detailed terms of the scheme that would subsequently be proposed under the Bill's provisions.

In our view, the new draft represented a significant improvement on the earlier one. I am glad to be able to tell the House that that view seems to have been shared generally. We received little additional feedback, and most of that was in the nature of seeking clarification or suggesting minor amendments to small or technical points of detail. That feedback, however, helped us to make one or two minor changes to the draft scheme in the interest of clarity and to ensure that all the i's were dotted and the t's crossed. Essentially, the draft scheme that is before the House is the same as the one which was circulated last month, which Parliament had an opportunity to consider before it passed what became the Criminal Injuries Compensation Act.

The draft scheme now before us accordingly gives effect to Parliament's wishes as expressed in the Act. It puts the necessary flesh on the bones of that Act and spells out clearly and unambiguously who can qualify for an award, how that award will be assessed and paid and how dissatisfied claimants may appeal. It makes the administration clear and sets out the line of accountability.

Once the draft scheme has been approved and the scheme is established, the Act makes it clear that any subsequent change will require parliamentary approval under the affirmative resolution procedure if the change affects a key feature of the scheme, and under the negative procedure if the change relates to a more minor feature. Thus it is Parliament rather than the Executive that will always have the final say over each and every provision of the new tariff scheme.

We believe that the draft new scheme provides the right balance between the needs of victims and the interests of the taxpayer. It has the benefits of a tariff-based approach, which will enable most claimants to receive their money more quickly without undue fuss. It will ensure also that the more seriously injured are generously catered for by payments for loss of earnings, the costs of special care and for structured settlements. It will remain a generous scheme. I remind the House that it is by far the most generous scheme of its sort anywhere in the world. Accordingly, I commend the draft scheme to the House.

8.35 pm
Mr. Alun Michael (Cardiff, South and Penarth)

The Minister has reminded us of the background to the statutory instrument from a view favourable to the Government's approach. The background to the statutory instrument was legislation that cut £700 million from the cash available to compensate victims of violent crime. We opposed that legislation vigorously from its earliest stages.

The Minister says that costs under the scheme were rising to an unsustainable level, but it is crime that has risen to an unsustainable level under the Government. That has led to increased costs in providing compensation.

The Minister said with some satisfaction that Parliament will decide on the features of the scheme as well as on the tariff, having ruled on the primary legislation. It is only fair to say that those are three steps towards which we pulled the Government over a considerable period.

Initially—the Minister glossed over this—the Home Secretary sought to act illegally by introducing a new scheme without any accountability to the House or to another place. The right hon. and learned Gentleman was found to have acted illegally. We insisted that there should be a proper affirmative procedure for the scheme and for the tariff. We won those concessions along the way. That is the background to the statutory instrument.

We should also remember that we are agreeing to the introduction of a scheme that will affect some of those who have been most damaged by some of the nastiest crimes. People will be affected by our decisions. There is still confusion and added pain for many victims because of the way in which these matters have been handled. There are still some anomalies for the Government to resolve. I hope that the Minister will listen and in developing the scheme further, or in making later amendments, will take account of some of the issues that are still outstanding.

In answer to a parliamentary question last week the Minister made clear how some people have been disadvantaged because the new scheme, which the Government introduced illegally, made allowance for payments to the relatives of murder victims. When that provision was changed that opportunity for compensation was lost. That compensation will be available again, of course, when the new scheme comes into force, but there will be a gap. Some people will receive compensation under the Government's replacement scheme, but there will be a period during which people in the same circumstances will not receive compensation.

I asked the Minister last week if he would make it his policy to allow the families of murder victims, parents of adult victims, the adult children of murder victims, the unmarried partners of murder victims and the fathers of illegitimate murder victims who apply for compensation under the tariff-based scheme of criminal injury compensation, announced in 1994 and subsequently withdrawn, to make a new application under the terms of the new scheme that he proposes to implement from April 1996.

The Minister responded by saying that he was not willing to do so, and said:

To allow applicants in any particular category to withdraw a claim lodged between 1 April 1994 and 5 April 1995 and then reapply under the proposed new scheme would be wrong in principle and anomalous in practice."—[Official Report, 28 November 1995; Vol. 267, c. 652.] The fact is that we are trying to deal with a situation where some people, because of the ham-fisted way in which the original legislation was introduced, have lost out, and will lose out unless some mechanism is found to address that problem.

Mr. Maclean

The hon. Gentleman mentioned certain categories of victim and asked me to try to make a special exception in those cases, which I think would be anomalous. Why does he limit his demand to those categories of victim? What about all the others who have suffered other injuries but are caught in the same trap as a result of the House of Lords judgment?

Mr. Michael

They are caught as a result not of the House of Lords judgment but of the Secretary of State introducing changes under an illegal mechanism and then trying to avoid accountability to the House. That was the source of the problem, so let us not have the House of Lords or those who uphold the law blamed for the errors that were made by the Home Secretary. I suggest that he is the source of the anomaly that affects those people, who feel tremendously damaged by it.

We are talking about a specific category and a specific set of injuries. Last week, the Minister said:

A total of 1,192 fatal applications were outstanding when the tariff scheme— the original scheme—

was withdrawn. About a third were from a parent or parents, some 30 per cent. were in respect of children under 18 years of age, about 20 per cent. were from children aged 18 or over, and some 15 per cent. were from spouses, whether formally married or regarded as a spouse in common law.—[Official Report, 28 November 1995; Vol. 267, c. 654.] I shall not go into the detail of the Minister's replies, but it is important that when he gave an assessment he put a top ceiling at some £5 million and gave a more realistic estimate of between £1.5 million and £2.5 million as the total cost to correct the anomaly. I appeal to the Minister—he will know that people feel tremendously injured and damaged by the anomaly and that those affected by the most horrendous crimes feel very personally the hurt that has been done to them—to be generous in dealing with this anomaly. Surely, if there are individuals who would have been the recipients of compensation, as a result of a relative being murdered, under the interim scheme, which was found to be illegal, and who would receive compensation again after 1 April under the new scheme—[Interruption.]—it would be wrong for us not to fill that gap and to—

Mr. Alex Carlile

On a point of order, Mr. Deputy Speaker. Will you be indulgent and allow the hon. Gentleman to take his call and then resume his speech?

Mr. Deputy Speaker (Sir Geoffrey Lofthouse)

Certainly not. I have noticed many times recently that such electronic equipment seems to be operating in here, and it is not good for debate.

Mr. Michael

I accept that and apologise, Mr. Deputy Speaker. It is an electronic brain, not a means of communication.

The Minister has an opportunity to put matters right for the individuals who have suffered the worst pain—bereavement—and it would surely be just and generous if he— [finterruptionj I am sorry, but may I point out to my hon. Friend the Member for Birmingham, Perry Bar (Mr. Rooker) that we are talking about the victims of bereavement, and that it is a most serious item?

It would be both just and generous if the Minister found a means of correcting the anomaly. I believe that he thinks that he does not have the powers to do so. Obviously, we have not seen the legal advice that he has been given, but a Home Secretary who sought to achieve injustice through the misuse of prerogative powers should surely have no hesitation in taking a risk for justice. If there is a doubt, let him introduce legislation to put matters right. Opposition Members are prepared to ensure that the legislation is not obstructed and goes through the House quickly to correct the anomaly.

If the Minister is unwilling to use Government time—it would allow him to take credit for setting right the anomaly, which has been highlighted most strongly by organisations that represent the victims of crime, and by Victim Support in particular—I have spoken to one of my hon. Friends who has secured a high place in the ballot for private Members' Bills, and he has expressed a willingness to introduce a Bill under that system if the Minister and the Government will give an undertaking to allow it a smooth and swift passage. In that way, co-operation across the Chamber could achieve what the Minister must surely accept as justice and correct an anomaly that would otherwise continue to cause pain to the individuals involved.

We welcome the introduction of a tariff system to simplify the process of decision making and to speed it up. Many victims have wanted a decision quickly and not to have reminders of their suffering over an extended period, but there are still problems with the scheme and the tariff: for example, some settlements will be less generous than under the previous common law system; there is a less personal assessment in circumstances where more serious injury or damage may be involved; and payments for loss of earnings, which was a concession wrung from the Government, are still not generous and leave a considerable gap.

We are asked today to confirm the Home Secretary's proposed scheme, including the tariff that goes with it. I stress that the Minister almost suggested that the Government had gone away, during the minor delay that was caused by the Lords' ruling, and generously considered ways to improve the scheme. It has been a long, drawn-out procedure. I give the Minister credit for the fact that he was willing to publish his draft scheme at an early stage and allow it to be discussed in Committee. That is right, and it is only fair to acknowledge that he was willing to do that, and therefore enter into debate. It is also true that during discussions he has moved his position. As that is somewhat unusual, I pay tribute to him for doing so. On occasions, it has been like extracting teeth from a dinosaur, and there are still improvements that could be made. Concerns have still not been addressed. There are still problems to be overcome, and we hope that the Minister will acknowledge that aspects of the scheme can be improved in future.

Some of the remaining flaws will have to be dealt with by changes in the future, but others concern undertakings given by the Minister or lack of clarity on specific points within the scheme and the tariff. Will the right hon. Gentleman give an undertaking that, where possible, such issues will be dealt with in the guide, which is to be published by the criminal injuries compensation authority, so that there is clarity and so that anything that is unclear is avoided? Some of the issues are matters of detail, but I wish to touch on some of the points, and I hope that the Minister will agree to continue to listen to the points that are being made and seek to provide clarification.

Will he draw the attention of the authority to these points and ask it to provide a positive response within the guide? It is clear that major concessions have been made, and when compared to the unlawful tariff, provision for loss of earnings, dependency in fatal cases, care costs and structured settlements are areas where there has been an improvement.

There are other anomalies in the scheme—in paragraph 38(c) in particular, where reference is made to the children of murder victims. It refers to

a child of the deceased, whether or not the natural child, provided that he was accepted by the deceased as a child of his family or was dependent on him. The same anomaly may arise in other places, but the definition of a child is a person under the age of 18. It is quite clear from what has been said by the Minister at various times and from the scheme that it is meant to apply not only to children under 18 but to the adult children of murder victims, and murder victims above the age of 18. If that is so, and if the Minister agrees, will he record his agreement and arrange for it to be covered in the guidance so that there is no anomaly? The intention is clear, but more clarification is needed.

The provision for structured settlement in paragraph 52 is welcome, but, even if structured annuity payments are made on a tax-free basis, it is improbable that the amount likely to be generated by an award of £500,000 will be sufficient to make adequate provision for the more seriously injured—for instance, those suffering from major paralysis or severe brain damage. Structured settlements are also to be voluntary. The Government have accepted the need to permit structural settlements for awards being processed under the common law schemes, but that has not yet been finalised. An amendment to the common law scheme to permit that in cases that are not finalised is expected. When will that amendment be made? The Minister gave us an undertaking when we discussed the matter in Committee. Does he intend the provisions to apply only from 1 April, when the new scheme is introduced, or will he agree to its operation immediately after the House has approved the subsidiary legislation that we are considering?

Surely there is no reason for delay, but I suggest to the Minister that some cases may be delayed to hit the date of 1 April if it is not agreed that structured settlements can be allowed under the old common law system, effectively from today.

Speed of decision making is supposed to be one of the important elements that follow the introduction of the tariff system. It does not seem that, in its year of operation, the original tariff system operated more quickly than the original common law scheme: I believe that, of 66,387 cases lodged, only 11,076 were determined—16.7 per cent.—compared with the resolution of 70 per cent. of cases under the last full year of the old Criminal Injuries Compensation Board. That figure comes from the board's annual report. Will the Minister undertake to ensure that there is proper monitoring, and that targets relating to speed of decision making are met under the new tariff system?

The loss of parental services in fatal cases also requires more attention. Will the Minister give an undertaking to re-examine the evidence with which he has been provided by a variety of sources?

The eligibility rules were debated in Committee. The scheme set a two-year limitation period. The Minister will recall that we wanted a three-year period. The time limit runs from the date of the incident, irrespective of the age of the victim, the nature of the injury or the extent of the victim's knowledge. The three-year period is very important for many victims, particularly those who are suffering from psychological injuries or who are the victims of sexual violence, especially children. Many such claimants do not feel able to make a claim in the immediate period after the incident in which they suffered injury. The Minister has allowed some flexibility in regard to applications that are made outside the time limit. Will he give an undertaking to monitor the position carefully, and to consider, in due course, extending that period from two to three years?

We are also worried by the more restrictive qualification rules in the tariff—for instance, for firefighters, who under the 1994 scheme had to show that they were taking an exceptional risk at the time of suffering accidental injury in fighting "arson" fires, an additional qualification beyond that required under the previous common law scheme. That requirement is to continue. The "exceptional risk" exclusion will prevent most firefighters who sustain injury in "arson" fires from recovering compensation—unless, for example, they enter a burning building to effect a rescue. The "exceptional risk" rule also potentially excludes citizens who suffer accidental injury in trying to catch offenders or prevent offences, or in helping police officers to do so—or, indeed, in helping firefighters to deal with "arson" fires.

Those aspects still give rise to concern. We do not believe that the passing of the measure should be delayed for that reason, but we hope that, where possible, the Minister will be generous in his guidance, and will undertake to monitor the position as time goes on.

One of the most difficult aspects is that of psychological injury. Victims who suffer mental injury alone, without physical injury, are subject to requirements that are basically similar to those applied by the courts in common law damages claims, although there are some differences. I understand that those requirements are very narrow, and the common law is currently the subject of review by the Law Commission. Will the Minister undertake to reflect on any recommendations made by the Law Commission in regard to the general principles applying to psychological injury? Obviously, he cannot anticipate the findings of the Law Commission, but will he at least consider the implications of the recommendations and, if appropriate, amendments to the scheme?

I referred to exceptional injury. With one exception, the scheme makes no provision for rescuers, who are now excluded but were not under the common law scheme. Professional rescuers, such as firefighters, police officers or unpaid rescuers—for instance, first-aiders or moors or mountain rescue teams, who provide a tremendous service—will receive compensation only if related to the primary victim of the offence. Simply witnessing the offence or its aftermath will no longer be sufficient.

It is easy to envisage circumstances in which problems could arise. Following a horrific incident such as a murder, people will be involved in the search for what turns out to be a body. I am sure that the Minister accepts that, in some instances, considerable damage can be done. Under the old common law system such experiences would have led to compensation, but that will not apply under the new scheme. Again, will the Minister be as generous as possible in his guidance, and undertake to monitor the possible exposure of anomalies?

The only exception to the rule that I have mentioned applies to railway staff who deal with the immediate aftermath of a railway suicide or attempted suicide. They have been treated as a special case. I do not argue with that, but other special cases are specifically excluded.

There are alternatives to the way in which the tariff has been introduced. I do not intend to go into them now, because they have already been put to the Minister, but I hope that the tariff will be monitored and that the detailed alternatives that have been urged on him will be considered in the future.

Certain special cases, although not large in number, are extremely difficult to value and perhaps should have been excluded from the tariff to permit individual assessment — children's cases generally, for which there were more than 7,000 claims, and cases involving, for example, child sex abuse, for which there were only 3,437 claims in 1993-94, psychological injury, sexual assault or scarring.

The other special case is the victim of rape who gives birth to a child whom she intends to keep. She will receive a fixed amount up to £5,000. The Government have not, however, recognised that any woman who becomes pregnant due to a rape should have an additional sum, whether she gives birth to a child who is adopted, miscarriages or has an abortion. In those three cases, she receives nothing. That seems to be an anomaly and I hope that the Minister will maintain an open mind and consider ways of changing that in future if there is no scope for change now.

The other point about multiple injuries was made clear during a debate in the other place, when Lord Carlisle of Bucklow said:

there are two major injuries which of their nature are likely to be totally distinct. For example, to take level 12 in the tariff, it seems very hard to say that the person who is partially permanently blind in one eye and at the same time has a fracture of both femurs should receive only 10 per cent. of what would be reasonable compensation for the fracture of both femurs. The fact is, such an injury will be just as grave to him"— or her—

whether or not he has been partially blinded in the same attack."— [Official Report, House of Lords, 31 October 1995; Vol. 566, c. 1384-5.] That is an example of the anomalies that exist in the tariff.

Inflation was mentioned by the hon. and learned Member for Montgomery (Mr. Carlile) and it is a major cause for concern. There is no specific commitment to an annual uprating of the tariff to take account of inflation. The common law scheme, working to similar compensation rules as the courts, took into account inflation's effects and developments generally in the law of damages. I hope that the Minister will clarify that position and give an undertaking on the way in which the Government will deal with uprating due to inflation. By the time that the tariff comes to be reviewed in April 1999, the 1994 figures could still be in operation and would be well out of date by some seven or eight years.

It is a major concession by the Government that loss of earnings is covered at all in the scheme, but hardship is likely to be experienced by people who suffer loss of earnings for periods of up to 28 weeks. No provision is made for them in the scheme because reliance is placed on existing statutory sick pay entitlements. Although many employers make provision for contractual sick pay, many do not. The people who will suffer most will generally be those in low-paid employment whose terms of employment often have little or no contractual sick pay provision beyond statutory sick pay.

Such people are often in high-risk occupations—for example, take-away catering. Self-employed people such as taxi drivers who do not receive statutory sick pay will lose out altogether for that period. The position could be even worse for shopkeepers or sub-postmasters and mistresses. They may have to pay locum managers to run their businesses, thus losing income and incurring additional unrecoverable expenditure.

Those who have had a prolonged period of sickness before the criminal injury may have exhausted their statutory sick pay entitlement. That applies particularly where there is repeat victimisation. In the categories that I have mentioned, a victim can become a victim on a subsequent occasion. Where that happens, there could be considerable loss. Many people are likely to be affected by that anomaly.

The House of Commons Library has estimated that up to 12 million people could be excluded by the 28-week rule. There are 3 million self-employed people, 3 million people below the lower earnings limit, 1 million people on short-term or temporary contracts, 2 million people who work for employers with no sick-pay scheme and about 3 million people who do not qualify as they have not worked for their employers for long enough.

The Minister accepted at a late stage that loss of pension rights should be provided for, as in paragraph 31(c). It seems that the calculation of such rights will generally be similar to the old common law scheme. Will he confirm that that is so?

Problems arise from the definitions that care costs will no longer include "loss of services" claims, under which the common law entitlement compensated victims who are disabled from tasks about the home, such as decorating and gardening, for the performance of which tasks they now need to pay others. Will the Minister clarify that position?

A number of detailed anomalies arise under this scheme. It is perhaps inevitable that there should be some. I hope, however, that the Minister will be willing to undertake to continue to listen, to discuss and to take representations to take account of the difficulties that we have raised with him, either in Committee or in this short debate tonight, and to ensure that the new scheme is as effective as possible.

The Government announced on Report that performance targets for the administration of the new scheme will be set and that a complaints procedure will be instituted. The parliamentary ombudsman will not be able to investigate individual decisions but will be able to investigate administrative functions of the scheme. I hope that the details about that will be contained in the advice so that they are clearly available to those who seek information about the scheme.

It is clear that the Minister has listened to our debates and that progress has been made, but there are still anomalies and difficulties, some of which I have tried to cover and others that will be extremely difficult and damaging to individuals. Irrespective of statistics, we must not forget that it is individuals who receive compensation as a result of becoming the victims of violent crime.

It is rather sad that the Home Secretary's approach to the issue is an attempt to save money at the expense of victims of crime. Many victims will suffer as a result, although there will be benefits from the tariff scheme. In some ways the Government are making victims of the most horrific and damaging injuries pay for the Government's failure to stem the increase in crime and particularly in violent crime. Instead of cutting crime, the Government have cut the help that is available to victims.

With some cheers, but with some remaining concerns, we examine the statutory instrument, which, of course, we cannot amend but can only accept or reject. We shall certainly not vote against it because we want the new scheme to be as clear as it can be and to come into operation as quickly as possible. I hope that the Minister will undertake to clarify as many as possible of those remaining areas of doubt and that in future he will listen to suggestions about where improvement is needed for future statutory instruments.

9.6 pm

Mr. Alex Carlile (Montgomery)

There is a slight danger that the Minister will escape from the debate covered in plaudits and with a small halo, suggesting that the Government have achieved a great success in improving the lot of victims of crime. We should not forget the history of the scheme. Under it, as compared with the old non-statutory scheme, victims of crime will receive less money from the Government than they received before.

In the past, victims of crime received, broadly speaking, damages that they would have received in a civil court, taking into account all the elements that form the sophisticated law of damages that applies in a civil court. There has been a significant reduction, and it is quite clear that the sole purpose of the introduction of the scheme and its fated unlawful predecessor, the original tariff scheme, is to cut public spending.

The Library's best estimate is that, in the next financial year, there will be a saving of £200 million. That money is a reduction in what would have been payable to the victims of crime. For that reason, it comes ill from the Government to attempt to earn too much praise for what they have done for the victims of crime. The reduction shows that the Government have hardly striven to achieve greater justice for those victims.

We must not forget that the Government have been dragged kicking and screaming to this new improved tariff scheme. Its history includes the resignation of Martin Thomas QC, a distinguished practitioner on the Criminal Injuries Compensation Board. It includes complex proceedings for judicial review related to the use of the royal prerogative in unpredictable legal territory. It includes judges intervening, for which they are now being criticised. The Government do not seem to like judges upholding the constitutional rights of British citizens.

The history of the scheme includes having to abandon one that was extremely ungenerous and that would have created much greater unfairness for victims of crime than the present scheme. It also includes the anomalies that were mentioned by the hon. Member for Cardiff, South and Penarth (Mr. Michael). Those have been well highlighted by Victim Support, and are well documented.

The cost of rectifying those anomalies is small, as the hon. Gentleman said. I am very surprised that the Government, who seek to support victims of crime, or at least say that they seek to support victims of crime, are not prepared to pay up between £2.6 million and £5 million in order to redress what is seen—at least by many people—as an injustice.

Of course I appreciate that the whole area of awarding damages for bereavement is difficult—because it cannot be measured by compensation—and that the compensation paid for bereavement in civil cases is very small; nothing more than a token to recognise the feelings of bereavement suffered by the bereaved. It is therefore very disappointing that the Government have not been able to share those feelings of people who have been caught in what was a very small time trap—which, as has been said, could have been dealt with very quickly.

It is a disappointment, too, that so few Members are in the House to speak on such an important issue. I understand, however, that tonight is a big night for the Labour party. I believe that it has a greyhound meeting , which has attracted many of its Members. However, to suggest that new Labour has gone to the dogs would not be—perhaps—terribly fair.

To return to the motion, I raised with the Minister in an intervention the issue of inflation. I ask him to bear in mind closely the point that I made. Civil courts have always been able to award damages that are the right valuation at the time. Inflation in the civil courts has never been anything more than realistic. If one looks, as I have professionally, over the years at the way in which damages have developed, one sees that sometimes the courts have fallen behind inflation and then caught up later. But when particular types of injuries have been awarded in jerks, rather than in a steady rise to reflect inflation, injustice has occasionally occurred.

Mr. Nigel Waterson (Eastbourne)

Given the hon. and learned Gentleman's experience in criminal practice and his work as a recorder, and given the new rules in the House about paid advocacy, has he taken the opportunity to discuss his involvement in this sort of debate with the new Commissioner for Standards?

Mr. Carlile

I have certainly not discussed with the Commissioner for Standards my involvement in this debate, nor would I. What I am doing now falls plainly within the rules.

Mr. Jeff Rooker (Birmingham, Perry Barr)

He is not initiating anything.

Mr. Carlile

I am not initiating anything; I am not advocating anything, except improvement of the law. That is what I am elected to do. I say to the hon. Member for Eastbourne (Mr. Waterson) that if we are to be barred from speaking in the House on matters on which we happen to be reasonably expert, we have reached a poor pass in parliamentary democracy.

Mr. Simon Burns (Lord Commissioner to the Treasury)

You voted for it.

Mr. Carlile

Someone who is usually silent in this House said from a sedentary position that I voted for it. I certainly did not vote—nor did any of my right hon. or hon. Friends—to bar Members from speaking on matters on which they have professional and working expertise.

Mr. Rooker

The rules do not do that.

Mr. Carlile

If anybody is under the illusion that the new rules do that, they are wrong, as the hon. Member for Birmingham, Perry Barr (Mr. Rooker) has just reflected, with all his experience and knowledge of parliamentary procedure.

To return to the point, we want this tariff scheme to work. It is important for the criminal justice scheme that it should work. It is important for the reputation of the House that the scheme should work. Therefore, it is very important that we should be given more than a vague commitment by the Minister that inflation will be taken into account by uprating the tariff regularly. It is bad enough to be a victim of crime, but it would be unforgivable if victims of crime were also made the victims of public spending cuts. We need the clearest of commitments on those issues.

I hope that the scheme will work. I hope, however, that the Minister will recognise that—many, many reasons have been given by the hon. Member for Cardiff, South and Penarth—if further anomalies arise, the Government should be willing to address them. I trust that an element of flexibility will be applied over the years to the new scheme, which will mean that victims of crime will still be able to obtain justice for their injuries.

9.14 pm
Mr. Maclean

With the leave of the House, Mr. Deputy Speaker. This has been a short but interesting debate. I shall deal first with the point raised by the hon. and learned Member for Montgomery (Mr. Carlile) about inflation. Of course we are committed to reviewing the scheme regularly. We want to keep all its aspects under constant review, and we acknowledge the need to take inflation into account. It would be politically unsustainable for any Government, of any colour, to run such a scheme without reviewing it for inflation — especially if inflation under another Government were to rise a great deal faster than at present.

Labour Members raised the issue of the treatment of fatal cases. I want to take a few minutes to make it absolutely clear what the position was and is. Under the common law damages scheme—the old 1990 scheme—compensation for dependants or relatives of those fatally injured was and is assessed in accordance with the Fatal Accidents Act and allied legislation. That produced some anomalies. For instance, the father of an illegitimate child could receive no award for bereavement, nor could parents when their child was over the age of 18 when killed.

As the whole House knows and agrees, death by accident is always a tragedy. In the light of the cases that arose under the 1990 scheme, we—this Government, who have been reprimanded by some hon. Members tonight—became convinced that there was a case for treating the families of homicide victims rather differently from the position under the Fatal Accidents Act.

Thus, when we devised the interim tariff scheme, we made it possible for the first time for parents and a spouse, whether or not common law, and the children, of any age, of a homicide victim to qualify for a share of the new fatal award of —10,000, which had replaced the common law damages scheme award for loss of dependency, loss of support, and bereavement.

We estimated that the change would result in more than 80 per cent. of claimants in fatal cases receiving more money than they would have done under the 1990 scheme. The enforced withdrawal of the 1994 tariff scheme and the reinstatement—as had to be done—of the 1990 scheme meant that the more restrictive eligibility criteria of the 1990 scheme had to be applied once more.

I wish that people had recognised that the interim tariff scheme that we introduced in certain areas was considerably more generous than the old scheme. It meant that those categories of relatives or dependants who had, for the first time ever under our proposals, become eligible for an award under the tariff scheme were unfortunately no longer eligible.

We have considerable sympathy for such claimants. The fact that they cannot now qualify for an award is an unfortunate consequence of the withdrawal of the 1994 tariff scheme, necessitated by the House of Lords judgment. Nevertheless, we still think that it is right that such categories of claimants should be able to qualify for a fatal award.

Thus, under the new tariff scheme before us today, the eligibility criteria for fatal cases are the same as they were under the earlier tariff scheme. Once the new scheme is introduced, such people will be eligible for a fatal award of £5,000—or £10,000 if there is only one qualifying claimant. In addition, under the new tariff scheme there will also be payment for loss of dependency—that is, reliance on the breadwinner's income—and loss of parental support.

I must tell the House that there is nothing that we can reasonably do for those who would have been eligible under the 1994 tariff scheme and who would again be eligible under the 1996 scheme, but who have been rendered ineligible by the enforced reinstatement of the old scheme. Applications must, in equity, be considered under the terms of the scheme in force at the time of application.

That means that, because the 1994 scheme was ruled ineligible, the cases to which I have just referred have to be dealt with under the 1990 scheme. It is not possible to treat such applicants as a special case, and allow them a payment under our more generous 1994 tariff scheme, or let them reapply under the generous 1996 tariff scheme. That would be wrong in principle, and anomalous in practice.

Let us not forget that between 50 per cent. and 60 per cent. of applicants would have been better off under the 1994 tariff scheme than under the reinstated 1990 scheme. We cannot move to a situation in which any group of claimants—however strongly they may feel— are allowed to pick and choose their claim under whichever scheme they think would be the most advantageous for them.

Mr. Michael

I have been following the Minister's argument with care. If the House of Commons recognises not the loudness of the voices of those who argue that there is an anomaly, but that there is a case of injustice to be met, why cannot the House decide to correct that anomaly? Surely it is right that the House has such powers, and surely it is right that that can be done retrospectively. Many other measures have been carried out retrospectively by the Government, so all that is needed is the will.

I believe that ex gratia payments can be made, as the hon. and learned Member for Montgomery (Mr. Carlile) has suggested. If the Minister is not willing to introduce such a scheme, will he recognise the justice of the claim and allow the House to decide on the matter? We have given him the means to do so.

Mr. Maclean

What an extraordinary suggestion. We were castigated by the Opposition for operating an ex gratia scheme, and they demanded that we introduce a statutory scheme. We have now introduced a statutory scheme, and the Opposition are now suggesting that we go back to making ex gratia payments to a certain group of claimants.

The hon. Gentleman is trying to suggest that we can pick out a narrow category of claimants. If we get into the business of trying to backdate payments for a special group of claimants, why should we limit it to those claimants? What about all the other claimants, including the non-fatal cases and the 50 or 60 per cent. of claimants who would have been better off if the tariff scheme that was thrown out by the House of Lords had stayed in place? In all equity, do they not have a right as well to have payments backdated? Why should we stop there? Why should we not backdate awards to those judged in 1993, 1992 or 1990? The hon. Gentleman, I think, has a guilty conscience.

Mr. Michael


Mr. Maclean

Let me finish this point.

The hon. Gentleman tonight smells of a guilty conscience. When the Government lost the case in the House of Lords, he was crowing from the rafters about the tariff scheme being thrown out. He put out statements saying that a mean-spirited Home Secretary had been defeated in the Lords. But he has now discovered that one of the bits thrown out in that judgment was a new and generous scheme that we had introduced, which had not benefited victims before.

Now the hon. Gentleman has a little bit of a guilty conscience. The Opposition crowed when the scheme was thrown out, but now they want us to put back in a measure. However, they want that measure to be targeted on only one group of people. They want us to ignore all the other claimants who—if we were to make such an extraordinary decision—should, in all equity, be included as well.

Mr. Michael

That was a most extraordinary piece of wriggling by the Minister. The Government were guilty of trying to cut the cash for the victims of crime, and this scheme—which is better than the one they introduced illegally—involves a cut of £700 million in five years.

I will answer the Minister's point in this way—it is easy for us to identify a specific limited number of individuals who are damaged by being caught in the gap which results from the Government's incompetence. We want to ensure that there is continuity between the scheme that was introduced and then withdrawn and the new scheme. That would cost—at the best possible estimate—about £2.5 million, but it would be just and right to introduce it. That is one reason for suggesting to the Minister that he accepts our offer of help in the legislation to correct the anomaly. Surely he should accept our offer.

Mr. Maclean

The offer from the hon. Gentleman to help in the legislation is the best proof of his guilty conscience. He claims that these people are being caught in a trap, but they were not entitled to anything at all under the old scheme. We then came along with the best of intentions in our tariff scheme. The House of Lords asked us to withdraw that scheme, and that is where the problem came from.

The hon. Gentleman is trying to weasel out by saying that such a scheme would cost only £1 million to £2 million. He ignores all the other victims, who, in all righteousness and equity, would also be entitled to demand that they should have their awards backdated.

The other point that the hon. Gentleman is dodging is his boast of spending another £ 700 million on the scheme. Yes, he said that he wanted to spend only another £2 million, but that would be on top of the £700 million. Apparently he has had the permission of the hon. Member for Dunfermline, East (Mr. Brown) to spend money on the new scheme. I shall now move on and deal with the other points raised in the debate.

Mr. Rooker

I confess that I am not a lawyer, and I am in the Chamber only because I hope to listen to the Adjournment debate, but what strikes me about the present debate is the constant use of the word "anomaly". Over the past few days, I have been in the Library reminding myself of the case of Pepper v. Hart, and I wonder whether, when the Minister was preparing his speech, he took advice on the implications of that case for the anomalies, such as who has missed out and who is left in now that we have a statutory scheme.

Mr. Maclean

No, certainly not. Pepper v. Hart is one of those cases that has been grossly exaggerated, and it applies only where there is a clear misinterpretation or misunderstanding of the law. I have not bandied the word "anomaly" about. It is the hon. Member for Cardiff, South and Penarth who believes that he has found hundreds of anomalies. I am satisfied that what we are doing here is just and right, and that the scheme is as clear as we can possibly make it.

To return to the other questions that the hon. Member for Cardiff, South and Penarth asked, of course we want the scheme to be as clear as possible. I assure the House that it is in the interests of the Government and of the civil servants administering the scheme, as well as in the interests of victims, that there is as much clarity as possible in the scheme and in the guidance. We do not want obfuscation any more than the next man does; it simply fouls up the whole system—[Interruption.]

If the hon. Member for Cardiff, South and Penarth were in an executive position, he would realise the sense in what I say. If a scheme is not clear, one has to deal with constant phone calls and is always filling in forms and checking up. That is, among other things, costly.

I give the House an absolute assurance that we shall monitor everything. We shall reflect on what the Law Commission says, and on what anyone else of any standing says—and even on what people of no standing whatever say. Of course we shall be given advice—from our appeals panel, among others, on changes that it may like to be made to the scheme. We shall consider what the panel says, and decide whether to make changes.

I can certainly clarify the fact that it was always the intention that the term "child" in the guidance would cover adult children. How else does one describe the 50-year-old offspring of a 75-year-old? Such people are still the children of their parents, and of course they will qualify.

The hon. Member for Cardiff, South and Penarth asked me to listen to a few points about structured settlements. I am grateful for his courtesy in saying that the Government have listened to many comments, but I must make one little point: he obviously did not hear me say earlier in my speech, in connection with structured settlements, that the complementary change to the current scheme to permit the Criminal Injuries Compensation Act 1995 to extend to benefits for applicants under the current scheme whose claims have not yet been settled, was made on 8 November, the day that the Act received Royal Assent. We thought it sensible to do both at the same time.

As for firemen, they are now merely being put in the same position as policemen with regard to the excessive risk category. If police officers are injured while arresting a criminal, it is sensible that they should receive compensation. However, if a policeman on duty trips over his shoelaces, he should not get criminal injuries compensation.

If firemen were responding to an arson attack or other fire, they received compensation if they suffered injury as a direct result of the fire. However, they also received criminal injuries compensation if they tripped over their hosepipes. That was rather a generous interpretation, so we are removing that provision and putting firemen in the same position as police officers. That is a sensible thing to do.

Finally, I make the point again that the scheme that we have introduced under the Criminal Injuries Compensation Act 1995 that is before the House tonight remains the most generous scheme of any country in the world. I make no apologies for mentioning that, especially to the hon. and learned Member for Montgomery, who is a devoted and committed European. He will be interested to know, as the whole House will, that the scheme remains 236 times more generous than Austria's; 275 times more generous than Belgium's; 109 times more generous than that of the Netherlands; and 69 times more generous than Denmark's.

Let us consider some bigger countries. The scheme is five times more generous than France's and 27 times more generous than mighty Germany's. All told, little old Great Britain accounts for 33.5 per cent. of all criminal injuries compensation paid out in the world.

I have no qualms in urging my hon. Friends and the whole House to support the measures before us tonight, because victims of crime in this country will continue to get increasing amounts of money allocated to criminal injuries compensation schemes by the Government. The amount will go up year after year. Britain will continue, and rightly so, to treat victims of crime more generously than does any other country in the world. I commend the scheme to the House.

Question put and agreed to.


That the draft Criminal Injuries Compensation Scheme, which was laid before this House on 16th November, be approved.