HC Deb 07 November 1995 vol 265 cc743-51

Lords amendment: No. 8, in page 6, line 34, leave out from beginning to ("the") in line 38, and insert— ("Before making the Scheme, the Secretary of State shall lay a draft of it before Parliament. (1A) The Secretary of State shall not make the Scheme unless the draft has been approved by a resolution of each House. (2) Before making any alteration to the Tariff or to any provision of')

Mr. Maclean

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this, it will be convenient to discuss Lords amendments Nos. 9 to 13.

There is a manuscript amendment to Lords amendment No. 13, to leave out from `(4B)' to end of line 17 and insert `Where the Secretary of State is required to lay a statement before Parliament under the provisions of subsection (4A) above, he shall not give effect to the altered provision unless the statement has been approved by a resolution of each House.'.

Mr. Maclean

These amendments are inter-related and it may be helpful if I deal with them in two sub-groups. Amendments Nos. 8, 9, 11 and 13 change significantly the extent of Parliament's control over the scheme. The Bill, on introduction, required the Secretary of State to lay a copy of the tariff and any subsequent alterations to it before Parliament. It also required the Secretary of State to lay before Parliament statements of other 'key provisions' made by the scheme, namely those bearing on quantum.

Under the amendments, however, the Secretary of State will now be required to lay a draft of the scheme in its entirety before Parliament. The scheme will not be able to start until that draft has been approved by both Houses under the affirmative resolution procedure. Thus specific parliamentary approval will be required for every aspect of the new arrangements before we can kick off.

Once the new scheme has started, any changes to it, however minor, will also be subject to parliamentary control. Changes to the tariff itself and to the key features of the scheme will require approval by the affirmative resolution procedure, while changes to the more minor, more routine features will be subject to the negative resolution procedure. We think that that strikes the right balance, requiring Parliament positively to approve changes to the more important aspects of the scheme, while leaving Parliament the choice as to whether changes to more minor matters should go through with or without a debate and with or without a vote.

The amendments make it quite clear where ultimate control over the scheme rests. The Executive will of course still be able to propose changes, but it cannot give them effect without recourse to Parliament.

Amendment Nos. 10 and 12 will have the effect of requiring more features of the scheme to be subject to parliamentary approval by the affirmative resolution procedure should change be considered necessary or desirable once the scheme has started. Those features relate to the appeals provision of the scheme.

Amendment No. 10 makes it clear that, before any changes can be made to a provision of the scheme which gives a right of appeal, or which specifies the circumstances in which an appeal is to be dealt with by an oral hearing, parliamentary approval by the affirmative resolution procedure will be necessary. Amendment No. 12 is minor and consequential. Effectively, therefore, any provision of the scheme which touches on eligibility for an appeal or the circumstances in which an oral hearing can be granted is caught.

More minor provisions relating in the main to more technical or administrative matters can still fall to be changed only by the negative resolution procedure. That will mean of course that if Parliament does not like even minor changes, it will still be able to pray against them and make its dissent known in that way.

Perhaps it would be sensible at this stage to say a word or two about the Opposition amendment. As I hope that I have explained and will be clear from the Lords amendments to clause 10, the degree of parliamentary control has changed significantly. Before the whole scheme can come into force, Parliament must approve it by affirmative resolution. We are then suggesting that the key features of the scheme, if we wish to change them in future, can by changed only by affirmative resolution. Everything else, all the hundreds of minor and technical things, could still be changed only by negative resolution procedure.

The Opposition amendment seeks to make every change in future subject to the affirmative resolution procedure. I happen to think that that is just a bit over the top. It would not be a good use of Parliament's time to have to approve any change, however uncontentious, technical or minor, by the affirmative procedure.

I understand the thinking behind what the hon. Member for Cardiff, South and Penarth is trying to do. I hope that he will be satisfied, however, that, since we have put in the affirmative resolution procedure before the thing can start, and we are keeping its use for the scheme's key points, the negative procedure will be satisfactory to deal with the other parts of the scheme if we wish to change them in future.

Mr. Michael

I am grateful to the Minister for seeking to reassure us that he intends to use the negative resolution route only for uncontentious issues. The problem is that the Government have not defined what those uncontentious issues are and have not limited in their definition the areas of activity which could be covered under the negative resolution procedure.

The Minister has rightly identified and, indeed, expanded on something that we support: those elements which have to go through the affirmative resolution procedure. In particular, we welcome the fact that the amendments bring the most important aspects of the appeals procedure within the key features of the scheme, and therefore require such changes in the appeals procedures to be undertaken through the affirmative resolution procedure rather than the negative resolution procedure.

The Minister needs to explain, however, how the scheme will operate and how he intends to use the powers. The clause, as it originally stood, referring not to the scheme but to the tariff only, was entirely framed in terms of affirmative resolution. The negative resolution elements were introduced in another place.

The Minister referred to the issues that could be covered by the negative resolution procedure as "everything else". I think that he will accept that that is rather a portmanteau way of describing the matter. That is why we have tabled an amendment which seeks to bring the whole scheme under the affirmative resolution procedure, which of course is what we sought when the Bill first came before the House and before it went to another place.

I shall give two examples of issues that would be contentious. Perhaps the Minister will tell us that they would not be dealt with other than through the affirmative resolution process. First, there is the appointment of the scheme manager and, secondly, there is the possible and highly contentious avenue for the Government to pursue of contractorisation of the operation of the criminal injuries compensation scheme. We would like the Minister to reassure us that there is no way in which such issues will be pursued without them coming before the House and another place, which will ensure that the full support of Parliament is given to such a contentious decision.

4.15 pm

In that context, we have tabled our amendment. The matters that will have to be dealt with through the affirmative resolution procedure are specified to some extent. The issues that are not specified would come under the negative resolution procedure. I have just referred to two matters that are not defined as coming under the affirmative resolution procedure and about which there is, therefore, doubt and concern. We are concerned that in those two matters, the Government may pursue the dogmatic approach adopted elsewhere. That would surely be wrong in relation to such an important aspect of public administration as compensation for victims of the most serious crimes.

We understand that it is likely that the Minister or the Home Secretary will bring the scheme and the tariff, in their final form, before the House very soon after the Queen's Speech, when Parliament reassembles. In that case, it is extremely important that we should have some assurances from the Minister about the way in which the remaining issues will be dealt with. It is, of course, the case that under the affirmative resolution procedure, although the House is able to have a say before anything is implemented, it cannot amend legislation. The House can only accept or reject it.

In general, there have been improvements in the scheme. I commend the Minister on one point. He has made the scheme and amended schemes available so that proper debate has been able to take place and discussion has been possible with those who have specialist knowledge. That is welcome and is an improvement on the way in which other legislation has been dealt with. I commend the Minister on being much more open than has been the case on other occasions in terms of allowing proper debate. That may lead him into all sorts of difficulties with the Government, but the Opposition welcome his openness, as do those outside the House who have taken a detailed interest in the matter. It is only right that the Minister's openness in that regard should be acknowledged and praised in the House.

There are still issues that have to be dealt with and I hope that the Minister can reassure us that there will continue to be improvements to them and consideration of them. Three obvious elements on which I hope he will give us reassurance are how pregnancy following rape is to be dealt with, how age and sex criteria are to be dealt with and whether multiple injuries will be dealt with in the way that the Minister has been urged to adopt.

During the passage of the Bill, a number of other issues were referred to as matters that would be dealt with under the provisions of the scheme. There is still the question of the qualifications of those who deal with appeals and their ability, as a team, to advise the Government and to be proactive in terms of changes that are needed in the scheme.

The Minister knows that reassurances were given in debates in another place about the way in which care costs would be dealt with and he has received representations on how care costs can be linked to earning capacity. Again, there are fears that the Government's intentions will not be met. It is possible for a person to be providing care without there being any effect on that person's earning capacity. Although that person may have lost considerable time in which he or she could have been, in theory, earning, that is not the same as having one's earnings capacity affected. The earning capacity remains the same, but the amount of time available for earning has changed, which is a different matter. Linking that issue to earning capacity does not take account of the fact that many carers would not have earning capacity as such. The carers might have been parents or spouses not in work and not intending to he in work when called upon to undertake care responsibilities. I hope that the Minister will give us an assurance that these issues will be dealt with in a constructive way and that they will be covered properly when the measure to approve the scheme and the tariff comes before the House early in the next Session.

The treatment of psychiatric injury remains a matter of concern. The definition contained in the latest draft of the scheme still leaves aspects to be covered, and I know that the Minister has received representations on the issue of railway suicides. There is concern that the way in which that matter is dealt with may result in railway staff being excluded from bringing a psychiatric injury claim, even though they are specifically included in paragraph 9(d) of the scheme.

The issues dealt with in relation to psychiatric injury include such aspects as loss of earnings. We have stated that damage could be done to those who are not able to claim during the 28 weeks after an injury, and particularly those who are unable to claim sick pay. Others might be disadvantaged due to the level of sick pay being considerably lower than what they would have obtained in employment. These issues must be dealt with by the provisions of the amendment through the affirmative resolution procedure.

It would be helpful if the Minister could indicate that he is still willing to respond to the serious points which have been made in another place and outside Parliament. The scheme and the tariff that the Minister will bring forward for consideration by this House in the near future must deal fully with all of the issues which have been brought to his attention. The amendment which the Opposition have tabled seeks to make the whole of the scheme subject to the affirmative resolution procedure. The devil is in the detail in criminal injury compensation and the detail is in the scheme and the tariff.

The House must not allow its authority over important elements of detail in the scheme to be diminished. We are concerned that the amendment tabled by the Minister tabled this afternoon contains some indeterminate elements. I have given two examples of issues which could be dealt with by negative resolution, and which could be implemented in advance of the opinion of both Houses of Parliament being obtained.

Mr. Maclean

First, may I thank the hon. Member for Cardiff, South and Penarth (Mr. Michael) for his kindness and courtesy? I am the perfect epitome of the remark, "I am from the Government—I am here to help you", and I am well known for my compassionate and caring approach. It would be fair—and perhaps more honest—to thank my staff, and particularly my private office staff, who have constantly reminded me when another letter to a shadow spokesman is due and that it might be helpful to lay out the main features of the Bill. Without that reminder, the hon. Gentleman would not have been able to thank me for being so helpful.

I should point out that what is to be done by affirmative resolution is clearly laid down by statute. We will operate the system in future in accordance with the law as set out in the Bill. Clause 10 states that the Secretary of State must lay before Parliament the tariff which he proposes and any alteration that he proposes to make to that tariff. Clause 10(4) states that the tariff must be approved by a resolution of the House. Clause 10(2) states that measures to be laid before Parliament include any provision to deal with any additional amount, the circumstances in which compensation may be payable with respect to a criminal injury of a kind for which no provision is made by the Tariff … the calculation of compensation in respect of multiple injuries… compensation payable in respect of children conceived as a result of rape … the circumstances in which an award may be withheld or compensation reduced any limit on compensation imposed by a provision made by virtue of section 2(7)(a). All of those things are specified in the Bill, which we hope will shortly be an Act, and can be altered only be affirmative resolution. In addition, of course, we have the amendments that we are considering today. It is true to say that we are setting some key and important issues on one side. We have responded to concerns expressed in the House, in Committee and in the other place by making all the matters that most worried parliamentary colleagues subject to the affirmative resolution procedure.

We think that we have got the draft scheme about right now. We found it helpful to publish the draft. Following comments from colleagues, the Association of Personal Injury Lawyers, the Law Society, experts in the other place and others, the draft has been altered. We are almost at the final stage, but we are still listening and willing to hear any representations that we have not yet heard on how we see the tariff scheme operating in practice.

Following all the consultation and the tweaking that we have done, we think that we have got the tariff scheme about right and as good as it possibly can be. However, it is not set in stone. Medical knowledge improves and changes all the time. Legal knowledge changes. If in future years we become convinced that a change has to be made to a category, type or sub-division of injury or that multiple injuries could be dealt with better—although I am not convinced of that at present—it would be open to us to alter the tariff by affirmative resolution or, if it is a minor matter, by the negative procedure. I hope that I have been able to satisfy the hon. Gentleman on those points.

Mr. Michael

The Minister spoke rapidly. A phrase which answered my two questions may have flashed by me, but I do not recall him dealing with the appointment of a scheme manager or the possibility of contractorisation, which I hope is unlikely, but must be a possibility with this Government. Could those matters be dealt with other than by affirmative resolution? Will he reassure us on those two points?

Mr. Maclean

I can only repeat the assurances that I gave in Committee that we had no proposals to do either of those things. I cannot forecast what will happen in the future, but I suspect that the workload of the organisation and the need to get the scheme bedded down mean that the matters to which the hon. Gentleman refers are not a prospect in the immediate future.

We will be bound by the Act. The appointment of a scheme manager and contractorisation are not covered by clause 10. I do not believe that primary legislation would be necessary to make those changes. Changes to the administration of the scheme would be made by the negative resolution procedure. Neither the affirmative nor negative procedure might be necessary if the relevant sections of the Act have given the Secretary of State the authority to make such changes. The matters to which the hon. Gentleman refers are not covered by clause 10, which requires the affirmative resolution procedure.

Mr. Michael

With the leave of the House. The Minister has confirmed what we believe to be wrong with the state in which we have ended up, even though there is a requirement for affirmative resolution on some matters. As I understand the Minister's reply, the Government would be able to deal with matters such as the appointment of a scheme manager or even contractorisation, which would take criminal injury compensation decisions outside the scope of public servants, without having to return to the House under an affirmative resolution. Indeed, the Minister seemed to go further and suggested that the Government might not need the approval of the House at all. As the Minister gave the strongest assurances earlier in the passage of the Bill through the House that the Government had no intention of going down that road and as it is the clear intention of both Houses that affirmative resolution should be the avenue for the most important aspects of the Bill, it would be entirely wrong for the Government to take criminal injury compensation decisions outside the scope of public servants or appoint a scheme manager without coming back and putting specific resolutions to the House.

We should be quite clear. The Government have no right to congratulate themselves on the Bill. The Home Secretary acted illegally in trying to introduce the new scheme without any parliamentary scrutiny. That was the Bill's gestation period—the Home Secretary's attempt to avoid the scrutiny of the House. The Government were dragged kicking and screaming into accepting that the scheme should be subject to parliamentary scrutiny by affirmative resolution. When we last debated these issues only the tariff was to be subject to the approval of the House.

4.30 pm

I welcome the fact that we have won from the Government the concession that the scheme itself is to be subject to the affirmative resolution procedure and the scrutiny of the House. That still leaves the victims of violent crime without compensation for loss of income for 28 weeks after the injury. The Minister should recall that, with statutory sick pay at about £52.50 per week, it is hardly an adequate recompense for those who are unable to work because of a serious criminal injury. Many people are not entitled to statutory sick pay, including the self-employed, those on a low income and those on short-term contracts. Some people might still be entitled to incapacity benefit, but that is no more generous than statutory sick pay. Others will get income support, which is even less than SSP.

There is considerable variation. Taking all the factors together, however, it has been calculated that 12 million people—at least half of those in employment—do not receive full pay during the first 28 weeks of sickness and will, therefore, be at risk under the Bill. They will be worse off.

This remains a scheme that cuts the amount of cash available for the victims of violent crime. The Government have admitted that £700 million is being cut from the cash available during the next five years. That amounts to a theft of £700 million by the Government from the victims who have been damaged most by the nastiest and most brutal of crimes. That is a 40 per cent. drop in expenditure for the Government and many victims will suffer as a result. The Government have made victims pay for their failure to stem the rise of violent crime. Instead of cutting violent crime, the Government have cut the help available to the victims.

I perceive from the Minister's response that our amendment would not have succeeded in doing what we had hoped, which was to ensure that the Government could not undermine the operation of the scheme without an affirmative resolution from this House.

Despite the improvements that the legislation makes in the processes and the introduction of a tariff, money for the victims of violent crime will still be cut by £700 million in the next five years. I have some satisfaction, therefore, at our success in persuading the Government to introduce more satisfactory procedures and make the operation of the scheme subject to the parliamentary ombudsman, but I nevertheless regret that the Bill will be detrimental to the victims of crime and the victims of the most violent crimes in particular. That should be at the forefront of our minds as we reach this final stage in the Bill's passage through the Houses of Parliament.

Lords amendment agreed to.

Lords amendments Nos. 9 to 13 agreed to.