§ 4.18 p.m.
§ THE LORD CHANCELLOR (LORD DILHORNE) rose to move, That this House takes note of the White Paper on Compensation for Victims of Crimes of Violence. The noble and learned Lord said: My Lords, Your Lordships will no doubt remember the very interesting debate we had on December 5, 1962, on the Report of the Working Party on Compensation for Victims of Crimes of Violence. That debate was initiated by the noble Earl, Lord Longford, who drew attention to the scheme formulated by the Committee of Justice over which he presided. He also drew attention to the valuable work done by a Committee of Conservative Members, presided over by my right honourable friend the Attorney General before he joined the Government, on the same subject.
The schemes proposed by Justice and the Conservative Committee differed in a number of respects and each scheme had its supporters and its critics, but both these bodies—and I think it was the view of all, or nearly all, those who spoke in that debate—were in agreement on two matters: the first, that the innocent victims of crimes of violence should be compensated for the injuries they suffer, and, secondly, that the compensation should be restricted to compensation for personal injuries and not be given for loss or damage to property. As I said in winding up that debate.—[OFFICIAL REPORT, Vol. 245, col. 305.]:
For the innocent victims of such crimes we all feel sympathy, but we feel that sympathy alone is not enough.
The White Paper which I am asking your Lordships to take note of accepts these principles and, in my submission to your Lordships, provides a workable and practicable scheme for securing that the victims of such crimes can obtain compensation. The scheme provides for ex gratia payments. In our debate in December, 1962, there was considerable discussion on the question whether the victim was entitled to compensation from the State. The Working Party expressed the view in their Report that the proposition that the State should be under a legal liability to pay, on the ground that it had failed in its duty, was both dangerous and fallacious.
Your Lordships may remember a very notable speech made on this by the noble and learned Lord, Lord Denning, who has asked me to express his regret that he is unable to be with us to-day. He advanced in that speech many cogent reasons why there should not be any legal entitlement. He said, if I may quote his words [col. 274]:
…this is not a matter for lawyers and legal entitlement. What should happen is that the Government themselves should provide a fund, maybe supported by charitable bodies, too, which can be allotted ex gratia for those deserving cases by sympathetic administrators, without all the paraphernalia to entitlement, rights at law and tribunals.
My Lords, I hope it will give the noble and learned Lord some satisfaction that the scheme in the White Paper proceeds on the basis that he advocated. He was supported by the noble Lord, Lord Airedale, and my noble friend Lord Colville of Culross, and I hope the scheme now put forward meets with their approval.
§ The important thing is, surely, not whether it is a question of entitlement or no entitlement, but that the scheme should ensure that those whom we all think deserving of compensation should get it, and that the undeserving do not. If under the scheme the innocent victim of a crime of violence gets compensation, it matters not, in my view, whether there is any legal entitlement to it.
§ I regard the scheme we propose, not as extending our law by imposing a legal liability on the State, as if the State was a tortfeasor, not as imposing 1353 on the State an obligation to underwrite the legal liability of the criminal, but as a proper extension of our welfare system, in which we rightly take such pride. We are not proposing any system of charitable relief—I should like to make that clear—but a system whereby compensation can be given in appropriate cases by the State, not because the State is under a legal liability to pay but because we feel that provision should be made for victims of crimes of violence.
§ It is to secure this that the White Paper has been drafted. As it points out, there is virtually no experience in this field. Until the coming into force on January 1, 1964, of the New Zealand Criminal Injuries Compensation Board, no other country had a scheme of this kind. We have just, I am sorry to say, missed being first in the field; but it is a very uncharted field. No one can estimate how many will apply for compensation or in how many cases it should be given.
§ One advantage of this ex gratia scheme is that it will not be difficult to adjust it in the light of experience. As your Lordships will see from the White Paper, it is proposed that the scheme should be administered by the Victims of Crimes of Violent Compensation Board. That is a long and, I think, a rather horrid title. My right honourable friend the Home Secretary invited suggestions for another name for it. I extend a similar invitation to your Lordships. I myself am rather attracted to adopting the New Zealand precedent and calling it the Criminal Injuries Compensation Board.
§ The Chairman, it is proposed, will be a person of wide legal experience, and the members of the Board legally qualified. It is proposed to start with five members. More can be added if the amount of work requires it. It may be asked why, if the basis of this scheme is not legal entitlement but an extension of our social services, its administration should be entrusted to lawyers and whether, in this, there is any departure from what the noble and learned Lord, Lord Denning, said in the passage in his speech which I have quoted. As I understood his words, he was really saying that this kind of scheme was not a matter for litigation and legal rights and lawyers fulfilling their usual function in the courts, and the reason why we have 1354 thought it right to entrust the administration to lawyers is one which I hope will commend itself to your Lordships.
§ It is one which can be simply stated. As your Lordships will see, the amount of compensation will be assessed on Common Law principles. It therefore follows that those charged with the administration of the scheme and with the assessment of the compensation must have knowledge and experience of the assessment of damages in our courts. Lawyers engaged in personal injury cases in the courts have great experience in assessing the likely sums to be awarded. They know the kind of sums at which the Judges will assess the damages in respect of certain types of injury, and they have experience, when they settle claims, in knowing what sums to offer and to accept.
§ The Board will, of course, have the assistance of an appropriate staff and will be based in London. It may establish offices elsewhere and, of course, it can, and I have no doubt will, hear cases outside London. The applicant for compensation will put in his claim, and the initial decision on his claim will be made by one member of the Board. That member will have to decide, on the information that he can obtain and is available to him, whether the applicant is a victim of a crime of violence and, if he is, whether he is one of the class covered by the scheme. If he is satisfied that he is within the scheme, he then has to decide whether the victim is entitled to compensation, and how much.
§ In many cases, I hope the majority, it should not be difficult to decide that the victim is a genuine victim of a crime of violence coming within the scheme and the amount of compensation. If the member of the Board rejects the claim, the applicant can, if he wishes, have his application heard by three members of the Board, who will decide his claim on the evidence advanced at the hearing before those three members. Similarly, if the single member of the Board awards a sum in compensation which the applicant considers inadequate, he can apply for his claim to be heard by three members of the Board, who will then determine his claim, again on the evidence that comes before them on the hearing.1355
§ It was suggested in the debate in another place that if the single Board member does not give his reasons for refusing an application or the grounds on which he has determined the figure for compensation, the applicant will not know whether to apply for a hearing before three members. I think there would be advantages in the single member of the Board saying, for instance, that he had refused the claim as he was not satisfied that the claimant was the victim of a crime of violence, or on the grounds that he was not within the scheme, or that there had not been an appreciable degree of injury, but I think there would be disadvantages in his stating his reasons for his conclusions. If the applicant thinks he has come to the wrong conclusion, if he thinks that the award of compensation is insufficient, he can apply for a hearing before three members.
§ As I have said, they will decide on the evidence they hear. This, I think, is important. They will not have to consider whether the reasons which led their colleague to his conclusion are right or wrong, but will only have to decide on the evidence which comes before them. If they had to consider their colleague's reasons, it might perhaps be thought that they might be influenced by his views. As they are not concerned with his reasons, I think there would be disadvantages if the single member were required to state them. As I have said, I think there will be advantages if he states quite shortly the conclusion to which he has come. So much for the outline of the procedure formulated in this White Paper.
§ Your Lordships will appreciate that there will be nothing resembling a trial or judicial procedure before the single member gives his decision. When there is a hearing before the three members, it will perhaps more resemble a trial, but the only questions for decision will be whether the applicant is entitled to compensation and, if so, how much. As the White Paper states, in paragraph 27, the procedure at the hearing will be as informal as is consistent with a proper determination of the application, and the hearing will be in private.
§ It has been suggested that the Board should publish reports of its decisions at frequent intervals, and that this would help those who are called upon to advise 1356 claimants as to whether or not to apply for a hearing before three members. I do not myself think that this is necessary. The Board's determinations will always be of questions of fact and of the amount of compensation. They will not be decisions on points of law, but if they find it necessary to make a ruling of general application there is nothing to stop them from making that ruling public, and I should have thought there were considerable advantages in their doing so. They will, of course, be required to present an annual report to Parliament, and no doubt it will be a full one. In that report, they will, of course, deal fully with what they have done, the difficulties they have encountered and, one hopes, make suggestions for the improvement of the scheme where they have found it can be improved. But I really see no advantage in frequent reports of the sums they have awarded; indeed, I see some disadvantages. If they award large sums and that is reported, it might tend to encourage bogus claims. Reports that they have refused certain claims on the grounds that they are fraudulent will not be of much value. I think it would be best to wait for a full report of their year's work and then review the scheme.
§ Now I want to deal with the scope of the scheme. It will cover injuries arising from offences committed in Great Britain or committed on British vessels or aircraft, and triable in this country. I think that both the Committee of Justice and the Conservative Committee drew up lists of criminal offences they thought should come within the scheme. I do not think that it is necessary to compile such a list. If the Board are satisfied that the applicant has suffered injury as a result of the commission of a crime involving the use of force, then unless he is disentitled to compensation on other grounds to which I will refer, that will suffice.
§ Motoring offences are excluded, except where the vehicle has been used as a weapon to run someone down for the reasons stated in paragraph 18 of the White Paper.
§ Your Lordships will see that in paragraph 17 the victims of offences against members of the offender's household living with him are excluded, in view of the difficulty in establishing the facts 1357 and ensuring that the compensation does not enure to the benefit of the offender. It is only where the injury has caused at least three weeks loss of earnings or the amount awarded would not be less than £50 that the applicant will be entitled to compensation. I am sure that, at any rate, at the outset it is a wise step to have a limit so as to exclude claims which may be regarded as of a somewhat minor character.
§ The scheme also applies to anyone acting as a member of the public, as the White Paper says, who suffers injury while attempting to apprehend a criminal. That injury might be inflicted on him by the criminal and, when it is, he comes within the category of a victim of a crime of violence; and if he sustains injury in the course of seeking to enforce the law by apprehending a criminal, and the injury is not inflicted by the criminal, as, for instance, if in the course of pursuing a burglar who is on the roof of a building, he falls off the roof, it would be wrong, I feel (and I hope your Lordships will agree with me) to deny that injured person compensation.
§ Also, if the applicant is to be entitled to compensation, the circumstances of the injury must have been reported to the police without delay, or have been the subject of criminal proceedings. It will be for the Board to determine whether there has been such delay in reporting to the police as to lead to the rejection of his claim. It is right that they should have discretion with regard to this. In some cases there may have been good reasons for some delay, but where there is no good reason, the fact that there has been delay, and perhaps considerable delay, must raise doubts as to the genuineness of the claim. I think this requirement is important as a safeguard against fraudulent claims. It is, perhaps, particularly important in relation to claims arising out of sexual offences.
§ Some may take the view that, owing to the possibility of fraudulent claims based on allegations of rape and sexual assaults, such cases should be outside the scheme. I do not myself take that view. I would not regard any scheme for compensation as satisfactory if it did not make provision for the genuine victim of a rape. But it is right to require that in such cases the matter should have been immediately reported 1358 to the police. The young woman who has had an affair might well be tempted, if she has discovered herself to be pregnant, to allege rape, but if that offence has really been committed, surely it is not unreasonable to expect that it will be immediately reported to the police.
I now turn to the basis of compensation. As your Lordships will have seen, we have adopted the Common Law principle with a ceiling on the amount that can be claimed for loss of earnings. I hope your Lordships will think that is right. There will be no exemplary or punitive damages, and, as paragraph 21(c) states:
there will be no account for loss of expectation of happiness.
The use of this phrase gave rise to some discussions, I see, in another place. Some of your Lordships will remember that in 1937 it was held in your Lordships' House that the plaintiff was entitled to damages for the shortening of his expectation of life even if he did not know it. In a case in 1941, Benhain v. Gambling, it was held that damages for shortening of life should not be calculated solely or even mainly on the basis of the length of life that is lost, but should be fixed at a reasonable figure for the loss of a measure of prospective happiness. After that case, this element of damages has come to be referred to as the "loss of expectation of happiness". It is the new terminology, and I think that, really, the criticisms of this phrase in the White Paper are not well founded. In assessing the amount of compensation, the Board will be required to take account of the degree, if any, to which, whether as a result of provocation or otherwise, the victim had any responsibility himself for the injuries he suffered.
§ I think I have now covered the main features of this scheme. I commend it to your Lordships. I shall listen with interest to your Lordships' comments upon it. I do not doubt that, in the course of applying it, the Board will encounter a number of difficult problems. I think it is true to say that under any scheme adopted difficult problems are bound to arise, and one advantage of adopting the method proposed in this White Paper is that we can adjust the scheme quite rapidly in the light of the experience gained in its operations.1359
§ I should like to add just this. The burden of compensation here is being accepted by the State. One would like to feel that that burden, the obligation to compensate the victim, fell on the wrongdoer and not on the State, but the cases in which the wrongdoer has the means to make recompense are few. Where he does make recompense, then it is wrong that the State should compensate also, and paragraph 28 of the White Paper deals with this.
§ My Lords, in conclusion I would say this. I do not put forward any claim that this scheme is perfect. No doubt in some respects it will be criticised, and when we come to the end of the debate, with your Lordships' leave, I will do my best to clarify and deal with any points which are raised. I do not think, though, that any scheme so far put forward can escape criticism. But I do ask your Lordships in this Motion to take note of this White Paper as a practical method of meeting the case we all want to meet, of providing compensation for the innocent victims of crimes of violence. I beg to move.
§ Moved, That this House takes note of the White Paper on Compensation for Victims of Crimes of Violence.—(The Lord Chancellor.)
§ 4.45 p.m.
§ LORD GARDINER
My Lords, it is, naturally, with considerable trepidation that I rise to address your Lordships for the first time from this place. I am sure that we all welcome the provision of any scheme of compensation for victims of crimes of violence, and we appreciate, too, if I may say so, the very lucid way in which my noble and learned friend on the Woolsack has explained its provisions to us.
As your Lordships know, a good many people have been interested in this subject for a long time, and I suppose when we start to think of crimes of violence we think first of murder and, in particular, perhaps of the unfortunate victim's dependants so suddenly deprived of one who is usually both the head and breadwinner of the family. I think it is not accidental that most of those who have been particularly concerned with this subject have been those who would also like to see the 1360 abolition of capital punishment. I do not know whether this is because we are so often told: "Why be so sympathetic to murderers? Why not a bit of sympathy for the unfortunate victims?" I do not think, if I may say so, that the gibe was ever justified. When we abolished the old punishment for treason, of hanging, being cut down and being disembowelled while alive and then drawn and beheaded, we did not do it because we sympathised with traitors but because we felt that the punishment was one which was no longer appropriate to a civilised country.
No debate on this subject should take place for long without referring to the work done in this field by the late Margery Fry, who spent the last few years of her life, and some money, in conducting research work into this particular problem, and ten years ago now put forward a practical scheme. Then, as your Lordships know, we had a Working Party; we had the Justice Committee, of which the noble Earl, Lord Longford, was Chairman; and we had a Conservative Party Committee, of which the present Attorney General was the first Chairman. Your Lordships, of course, also had a debate, inititiated by the noble Earl, Lord Longford, in 1962; so I do not think that to-day anybody would wish to argue whether or not the State should compensate the victims of crimes of violence. In the past, different views have been expressed as to the basis upon which this should take place, but I think, having read the debate which took place in your Lordships' House in 1962, that in the end most of your Lordships thought it would be right to do so.
We on this side of the House welcome this scheme, though we cannot, I think, for several reasons, give it unqualified approval. Since I have had the honour of being a Member of your Lordships' House I have seen a number of measures introduced of which one could heartily approve while regretting that they had not been introduced five or ten years ago, and feeling that they seemed to have been put together in rather a rough and ready way. In saying this, I am not at all trying to make a Party point; any political Party in the same position would, of course, have done exactly the same thing. When a Government come towards the end of their life, 1361 as when an individual comes towards the end of his life, they begin to think of those things they ought to have done and have not done, and whether they can be done in time for an Election, particularly if they will be useful on the platform; and this one could be quite a good one. They could say, "Our opponents are always sympathising with criminals, but we think of their unfortunate victims and have introduced compensation for victims of crimes of violence."
The measures in question, unfortunately—and this one seems to me to be an example—have been put together in such a hurry and, as I say, usually too late. Without wishing at all to make a Party point, one has been sorry because one has known the boys who have qualified themselves by examination for apprenticeships and have had to go into factories because the apprenticeships were not available; or young men and women who wanted to be teachers but could not be because places were not available in teacher-training colleges.
While the question of compensation for victims of crimes of violence has never been an easy one, it is now, after all, just on three years since we had the Working Party Report, and while there is a lot to be said for trying it out in a small way, I think some of us would have preferred a scheme of entitlement rather than an ex gratia one. I can quite see there is a good deal to be said for starting with an ex gratia one; there are real and perhaps unusual administrative difficulties. The main objection, I would suggest, to this scheme is that it does not even attempt to solve the difficulties, because wherever difficulty arises the answer always is. "We will leave that for the six infallible lawyers". I call them "six infallible lawyers" because there is no appeal from their decision, no Ministerial review, and they are to meet in secret.
The first thing that must be done—and it does not matter whether you have a Bill or a scheme of this kind—is to decide which are the crimes in respect of which a claim will lie. If it is not decided now, it has to he decided by the six infallible lawyers. The Working Party said in their Report that any scheme must provide an effective prac 1362 tical means, whether by definition or otherwise, of distinguishing the types of crime for which compensation is to be paid from those for which it is not. Both the Justice Committee and the Conservative Party Committee did this in schedules which specified the crimes. So did the New Zealand Criminal Injuries Compensation Act. It is therefore perhaps all the more surprising to find that in this scheme there is no specification or definition of any kind at all, and the whole matter is to be left to the lawyers who are to constitute the Board.
This simply means that as soon as a claim arises in respect of any known crime with regard to which there is a difference of view whether it should be included—incest, for example, need not take place between two members of the same household; the Justice Executive Committee were very divided in opinion as to whether it should be included in such a scheme or not and so was the whole of their Council; on the whole, they said it should be; the Conservative Committee said it should not be—one member of the Board will have to decide, and there may be no appeal if he decides against it. If there is a subsequent claim and appeal, the Board may decide to the contrary.
At the end of a year obviously the Board will have had to draw up a list of those crimes in respect of which a claim may be admitted and those in respect of which it may not. I should have thought there was a good deal to be said for this being done by Parliament, a Committee in this House and in another place, rather than leaving it all to the six infallible lawyers. If these points were to be decided in Committee in this House, no doubt the House would pay attention to what any lawyer Member of the House said; but I should think that if a lawyer said, "This is a matter to be decided entirely by lawyers and you chaps must not say anything", the view would be expressed, "It is a question of public policy and not a question of law".
I am not at all happy about the provision made for assisting the police. Everybody, I thought, had agreed, and I gathered this from the noble and learned Lord the Lord Chancellor, that the intention is to give compensation to 1363 those who receive injuries when assisting the police; but the proposed scheme does not appear to do so. The Justice provision was:Any person who sustains physical injury as a direct result of an attempt to avoid, prevent or frustrate any criminal offence shall in every case be entitled to the same benefits as are provided for the victim of a crime of violence".That I thought was, if anything, too narrow. But paragraph 14 of the scheme confines it to…injury…directly attributable either to a criminal offence involving the use of force or to an attempt by the victim…to apprehend a criminal".This is to be the direction given to the Board. So this is one of the few points which the six infallible lawyers cannot decide for themselves; it is their direction. And this means, as I understand it, that if a policeman arrests a criminal in the street and there is a struggle in which the arrested criminal is trying to break free, and the policeman calls on a member of the public to help him and that member of the public is injured in consequence, he gets no compensation, because he has not been trying to apprehend a criminal.
§ THE LORD CHANCELLOR
My Lords, if I may intervene, I would point out (I did not deal with this at any great length and I will deal with it in reply) that I am not agreeing for one moment with the narrow interpretation the noble Lord is putting upon that phrase.
§ LORD GARDINER
My Lords, the only interpretation I can put upon it is the natural meaning of the words themselves. It is limited to injurydirectly attributable either to a criminal offence involving the use of force or to an attempt … to apprehend a criminal".I should have thought that was much too limited, and it should be extended to anyone injured as a result of going to the assistance of the police.
§ THE LORD CHANCELLOR
I put this to the noble Lord: if he is going to assist the police in apprehending a criminal he is engaged in apprehending a criminal.
§ LORD GARDINER
Yes, but the instance I was raising was that of a criminal who has already been arrested and is in custody and is trying to break 1364 free; the policeman having trouble holding him calls for assistance on a member of the public; the member of the public who gives assistance is not attempting to apprehend a criminal, because the criminal is already under arrest; he is attempting to prevent his escape from custody. I am suggesting only that the wording is too limited, and that if the Board are given this direction they will find it in practice to be too limited. If these are clause points, I can only point out that this debate has the unusual feature of being both Second Reading and Committee stage at the same time.
There may be cases in which injuries are caused by something which would be a criminal offence if the offender had a certain intent, but is not because of his age or insanity. This point has in fact been met in the New Zealand Act, which provides:For the purposes of this Act a person shall be deemed to have intended an act or omission notwithstanding that by reason of age, insanity, drunkenness or otherwise he was legally incapable of forming a criminal intent.I thought that worth mentioning, it being intended, as these points are, for the improvement of the scheme.
The question of crimes committed between two members of the same household is not an easy one. It was considered both by Justice and by the Conservative Party Committee, and they were both of the opinion that they should be included, but subject to certain safeguards, for which they provided and with the detail of which I will not trouble your Lordships. But it is perhaps disappointing to find that this scheme specifically excludes under paragraph 17 all crimescommitted against a member of the offender's household …That means that if a maid is criminally assaulted by her employer in his bedroom, if she is a daily—whether she has been a daily for ten years or only just recently—she has a claim, but the au pair girl living in the house has not. I should have thought that also deserved consideration.
Perhaps in replying my noble and learned friend would tell us what is meant by "dependants" in the case of a fatality. We are told that the compensation is to be assessed on the basis 1365 of the Fatal Accident Acts, but Justice specified precisely the degree of relationship required to be a dependant for the purpose of their scheme, whereas this scheme in paragraph 21 simply talks about "dependants", without giving them any sort of definition. Here, again, is a point which I should have thought the Board could reasonably expect to be told what they are supposed to do.
The minimum of three weeks' loss of earnings or £50 does not seem to be very generous. I think the Justice Committee suggested a minimum of two weeks, which some of us would have preferred. It is to be observed, too, that in paragraph 22(a) earnings are to be assessed as at the time of the injury. I should have thought that what the courts do should be done: namely, to take into account what the earnings are at the time of assessment.
There is another point—and none of these points are really Party points at all. This one certainly is not. Indeed, my own mind about it was, I must say, influenced by reading what had been said in the debate in December, 1962, by the noble Viscount, Lord Colville of Culross. I do not think I have ever had the pleasure of meeting the noble Viscount, but having sat here day after day, so far as I could get here, and listened, I have, if I may say so, been particularly pleased to hear the contributions which he has made to your Lordships' debates.
Your Lordships may remember that what he said on this occasion was that if a girl became pregnant as a result of a criminal assault, and if she wished to keep the child with her and bring up the child, we ought to help her to do so; and in whatever provision was made for compensation for crimes of violence provision to that effect ought to be included. I hope that a number of your Lordships would take the same view. The word "tragic" can be over-used, but if we think of a young girl we know to whom this thing has happened we realise that here is tragedy indeed. While I do not suppose any of us could find it in our hearts to criticise almost any decision she took about the child, we should, I think, applaud her if she decided to maintain and bring up the child. It might, of course, be impossible 1366 financially for her to do so unless we were prepared to help towards the maintenance of the child, and I should hope that some, at least, of your Lordships would take that view.
As to the Board, I quite see that there is a good deal to be said for having compensation determined by ordinary judges in ordinary courts, but if it is to be done by an informal Board of this nature I am not clear why all six have to be lawyers. I am of course, inevitably prejudiced in favour of lawyers and would not pretend not to be; but I cannot understand why they all must be lawyers.
The Justice plan proposes that the Chairman should be legally qualified, that the Board should include a doctor and an experienced justice of the peace, and that one of the members of the Board, having regard to the fact that they would have to consider sexual offences, should be a woman. They thought that, even though I think they were in favour of an entitlement. But if the whole thing is to be entirely ex gratia, and there is no legal right and no question of law at all, the whole decision may depend entirely on a question of medical fact. Of course, it may be said that the Board can obtain medical advice. But a doctor or an accountant can obtain legal advice.
The only ground suggested by my noble and learned friend on the Woolsack is that they are going to assess damages on a High Court basis. This may sound something of a mystery, but it is not really. Our assessment of damages in personal injury cases is not efficient; it is not done scientifically. Once you know a man's probable rate of remuneration, there is no difficulty at all in ascertaining what capital sum would be required to produce the same amount, having regard to his expectation of life. But we do not do this; and Justice, which is usually two moves ahead of everybody else, has already appointed a committee to try to see whether an efficient system for assessing damages cannot be found.
But, whether efficient or not, our method is not a mystery. The barrister who is suddenly appointed a High Court Judge, having done Revenue work and never having been concerned in the assessment of such damages, is much 1367 indebted to a well-known husband and wife team when he goes out and buys a yellow book called Kemp and Kemp on Damages. This contains a record of every sort of sum which has ever been awarded for every sort of injury, and (which is also helpful) by which Judge, so one knows which Judge tends to be high and which tends to be low. There is really nothing that a reasonably intelligent man cannot learn in a reasonably short time. If this is the sole justification for their all being lawyers—and I will bet that they will all be men!—it is not, I suggest, really a good one.
Then with reference to some of the observations which have been made, I should like to press the desirability of a provision that both the one member who decides cases and the three member Board—so far as I can make out, the Board of six never meets at all: the one member decides first and he may appeal to a Board of three—should give reasons for their decision. I can see no harm in this. I do not see how a member of the public whose claim is rejected by the one member is to be advised whether he or she ought to appeal or not, when they have not the foggiest idea whether the reason why their claim has been rejected is because it is a crime to which the Board have concluded that these claims ought not to apply, or because he or she is supposed to have provoked the criminal, or what the reason is. I should have thought—and all the more so, if it is to meet in secret—that the Board should publish reasons for its decision and for the amount.
I do not think we have ever heard it suggested that in accident cases in the courts no amount should be published, in case people are thereby encouraged to bring claims. It is, I think, of the essence of the ex gratia, temporary scheme that we should build up a sort of Case Law, and see how it goes. But Case Law is of course impossible if the cases are not reported; and I am interested to see that under the New Zealand Act, while the Board has power to meet in private, it ordinarily meets in public and it must give the reasons for its decision.
1368 I appreciate the reason why there is no provision for recovering from the criminal. One realises the difficulties in the present state of penal affairs, and of course it would require legislation; though there are some of us who feel that one day, when it is practicable, such a provision ought to be included.
There is also nothing to tell the Board what provision to make or what steps it ought to take to try to prevent fraudulent claims. I refer to this because the Working Party said that any scheme must provide means of distinguishing the deserving claimant from the undeserving or fraudulent. In the debate in December, 1962, my noble and learned friend on the Woolsack was most caustic about the Justice report because it had not done this. But I see no sign of it at all in his scheme. This, again, is something left to the six infallible lawyers.
Lastly, everyone who has hitherto considered the provision of compensation for victims of crimes of violence has always contemplated legislation—and this applies, of course, to Justice, the Conservative Committee, and, indeed, the Home Secretary, who said that he hoped to introduce legislation about it. If I may respectfully say so, I have been greatly impressed since I have been a Member of your Lordships' House, with the value of the work done in Committee—even on questions as to whether a word should be "shall" or "may". I must say that I thought it ought to be "shall", but I did not like to say so. But many of these questions—as to what the crime ought to be, whether reasons should be given for the decision, whether the provision for compensation on assisting the police should not be wider, whether perhaps there should not be maintenance of a child whom otherwise the mother may be unable to keep with her—are not really, I should have thought, just matters for lawyers. These are the sort of points which, in the ordinary way, would be discussed and decided, here and in another place, in Committee.
Therefore, while we welcome and appreciate this Report, we have some regrets that the compensation is ex gratia, though we understand the reasons that have been put forward for that. We feel that this scheme is far better 1369 than nothing, but that it has been rather thrown at us on a "take it or leave it" basis, and that, wherever there are difficulties, they appear to be thrown at the Board without giving the Board any clear direction on these different matters. The whole thing—and I hope your Lordships will not think that this is unjust or unfair—gives the appearance of having been rushed through without much thought, as a last-minute addition to the record of achievements in the Election programme.
I remember that in the December, 1962, debate my noble and amusing friend Lord Mancroft, if I may call him that, said [OFFICIAL REPORT, Vol. 245, col. 260]:I hope that the note upon which I wish to end will not appear unduly cynical. I do not think I am guilty of wild or extravagant language or unnecessary hyperbole if I say that the popularity of the Government is not at the moment at its zenith. Fervent supporters of the Government such as myself frequently pray that the Government should be given more chances to do something which is both popular and right. My Lords, here is their chance.One quite understands that; but I suggest that it is a pity because, if this had been introduced as a Bill, and had received the ordinary measure of consideration both as to principle on Second Reading and as to matters of detail in Committee, I cannot help thinking that it would have had advantages which it has not got and would have been greatly improved. If I understand the position rightly, your Lordships' House will not be allowed to amend this scheme in any particular and must take it or leave it as it is, whereas we feel that, if this House and another place had had the chance, this scheme, which we are delighted to see, could have been substantially improved.
My Lords, I am sorry that owing to a long-standing engagement it is possible I may have to leave before the end of the debate. If I should have to do so, I hope that both your Lordships and in particular my noble and learned friend on the Woolsack, will excuse me of any discourtesy.
§ 5.13 p.m.
§ LORD AIREDALE
My Lords, the noble and learned Lord, Lord Gardiner, began by expressing trepidation on addressing your Lordships for the first 1370 time from the Dispatch Box. My trepidation arises from addressing your Lordships from anywhere next after the noble and learned Lord, Lord Gardiner. Having said that, I should like to say, since the noble and learned Lord Chancellor was kind enough to mention my name as having expressed in our debate in 1962 approval for the scheme being an ex gratia scheme, that I am still firmly of this opinion that it is a good thing that it should be an ex gratia scheme. The more I think about it, the more certain do I become in my own mind that an ex gratia scheme is the right kind of scheme. I was glad to hear Lord Gardiner give qualified approval to an ex gratia scheme. I think he said that there was a good deal to be said for it, although he was not wholeheartedly in favour of its being ex gratia.
I should like to support Lord Gardiner's criticisms of that part of the scheme which in the White Paper is headed "Scope of Compensation Scheme"; that is to say, paragraphs 13 to 18. I would go so far as to say that paragraph 13 seems to me to be badly expressed, and even thoroughly misleading. The paragraph begins by saying very early on that it is not proposed to specify a comprehensive list of crimes, and goes on to give what the reader is surely entitled to suppose is its argument for not having this comprehensive list. It goes on to sayBroadly speaking, however, applications are likely to arise …"—and then it gives three headings under which applications are likely to arise. I should have thought that the reader was further entitled to suppose that, if these applications are likely to arise, they are likely to be entertained sympathetically by the Compensation Board.
The first two of the three headings of offences are the sort of offences one would expect to find, but the third class of offences is a rather curious one:personal injuries due to malicious damage to property, including arson.The reader at that stage surely says to himself, "This means that if somebody sets fire to a dwelling and the victim is injured in trying to escape from the building, an application is likely to arise and, presumably, is likely to be sympathetically considered if it does 1371 arise". Then the reader goes on to the next paragraph, paragraph 14, and is brought to a rather sudden halt, for he there reads:the Board will entertain applications only in those cases where:— (a)"—and in sub-paragraph (a) the operative words area criminal offence involving the use of force".So that he goes back to the last words of the preceding paragraph which refer to arson, and says to himself, "I cannot see arson that can properly be described as an offence involving the use of force, so the Board is not going to entertain claims arising out of the offence of arson after all." Then he is surely entitled to say to himself, "Why wasn't I told in paragraph 13 that, although cases of arson might give rise to applications, nevertheless such applications are not going to be sympathetically considered."
Then sub-paragraph (b) says that the Board will entertain applications only in those cases wherethe circumstances of the injury have been reported to the police without delay …".The question I should like to ask the noble and learned Lord Chancellor is this. Upon whom rests the duty to inform the police without delay? Clearly, it cannot in many cases be the victim of the crime. He may have been hit over the head, may be suffering from severe concussion and may remember absolutely nothing about the circumstances in which he sustained the injury. So he cannot go and complain to the police. In other cases, he may be lying in hospital, probably in a deep coma for some time and, for all one knows, very near death's door, and certainly cannot go and complain to the police without delay. Whose duty is it to report to the police without delay?
Supposing there is a perfectly genuine misunderstanding as between the hospital and the relations of the victim. Supposing the hospital think that the relations have gone and reported it to the police, and the relations think that the hospital must have reported it to the police and, in the event, nobody reports it to the police. Is the victim to be denied his compensation because he fails to come within paragraph 14(b) owing to the failure of somebody else, 1372 when there is no apparent duty on anybody else to make the report to the police? I should have thought that paragraph 14(b) was a most unsatisfactory condition, and I very much hope that before the scheme comes into operation it will be expunged from this White Paper, otherwise I feel there may be a great many miscarriages of justice.
The only other paragraph I should like to mention is paragraph 18, about motoring offences. It is very short, but it seems to entail a great deal of confused thinking. It begins by saying:Motoring offences will also be excluded from the scheme, except"—and it gives one exception—where the motor vehicle has been used as a weaponin a deliberate running down. But surely there is one other obvious exception, and that is the case covered by paragraph 14(a), where there has been an attempt by the victim acting as a member of the public to apprehend a criminal. So if somebody tries to apprehend a bandit who is trying to escape in a motor vehicle after a crime, and he is run down by the vehicle—not deliberately, but because the escaping criminal is driving heedlessly and recklessly—then that case is within the scheme under paragraph 14(a), but it is out under paragraph 18 because it is a motoring offence. That seems to me rather a slipshod piece of work.
Then paragraph 18 goes on to say this:Injuries caused by identified vehicles are covered by insurance arrangements.So they are, but what about the unidentified vehicles? The explanation about them is thatwhere the vehicle has not been identified it is usually very difficult to prove that an offence has occurred.A more inaccurate statement than that I do not think I have ever heard. There must surely be any number of hit-and-run cases where there is plenty of evidence that an offence has occurred, notwithstanding that the identity of the driver has not been established.
If somebody driving a vehicle charges out of the fog, and runs into one of a group of people who are walking along the side of the road, there is ample evidence that an offence has been committed. But if he disappears into the 1373 fog, of course, the identity of the vehicle is not known. Indeed, I would venture to suggest that often where there are eye-witnesses of the running down in these hit-and-run cases, the natural thing for the eye-witnesses to do is to direct their attention first to the unfortunate victim who is in a plight, lying in the gutter perhaps. Only after some short time do people start to look up and try to spot the vehicle that has caused the injury. Of course by that time—it may be a few seconds later—the vehicle may be out of sight. So it does not seem to me to be a very helpful argument to say that it is usually very difficult to prove that an offence has occurred where the vehicle has not been identified.
There is, it is true, provision in some of the cases of unidentified vehicles for compensation to be paid because, as I understand it, the Motor Insurers' Bureau themselves sometimes make an ex gratia payment to the victim. That is all well and good, but there is no entitlement to that compensation. I should have thought that this scheme which we are now discussing was ideally suited to cover those few cases of running down, where there is no provision for compensation to the victim, so that it could be used where it applied in order to provide the compensation. So I should like to see paragraph 18 redrafted to say that motoring offences are not excluded from the scheme; so that, although in actual fact in most cases there is already compensation available under insurance schemes, nevertheless, where the lacuna applies, where there is no entitlement to insurance compensation, cases shall be covered by this scheme. My Lords, those are the only points that I have to put forward, which I hope may have been of some assistance.
§ 5.25 p.m.
§ LORD MANCROFT
My Lords, I, too, should like to offer a few words of welcome to these admirable proposals, which have been put forward to us by my noble and learned friend on the Woolsack with his usual skill and clarity. Your Lordships will, I think, not be surprised when I say that my welcome will be a good deal warmer than that extended by the noble and learned Lord, Lord Gardiner, and by the noble Lord, Lord Airedale. The noble and learned Lord, 1374 Lord Gardiner, told us with clarity and vigour, more than once, that he was not intending to make Party political points. I was therefore not the slightest bit surprised when he promptly did so. I am not in any way criticising him for doing this; I merely do not want him to think that he has got away with it.
Lord Gardiner told the House that he had not previously had the pleasure of knowing the noble Viscount, Lord Colville of Culross. Your Lordships will by now have realised that I have had the pleasure of knowing the noble Lord, Lord Gardiner, for nearly thirty years, and my belief that the landing space for flies on the noble Lord, Lord Gardiner, is remarkably small is in no way diminished by his speech this afternoon. My admiration for him is not diminished, nor is my reluctance to take for granted anything he says.
I welcome these proposals wholeheartedly. I think they do two things; first, they deal with a considerable sense of social unrest that people have felt about this problem for a long time. It is not, of course, a major problem. But it is something which everybody understands and which has been worrying us all. I think this proposal will undoubtedly set our minds at ease. I think it also goes a long way to meeting a grievance concerning the relationship between the public and the police. This has been ventilated frequently in your Lordships' House of late whilst the Police Bill has been going through its remaining stages. I must confess that I read the paragraph on the subject of aiding the police quite differently from the noble and learned Lord, Lord Gardiner, and I hope that the Lord Chancellor, when he comes to wind up, will be able to set our minds at rest on this point.
I do not think the number of people who are actually prevented from going to the aid of police, or of somebody who is being assaulted, because they think they will get no compensation, is very large. But if this proposal does anything to encourage a citizen to go to the aid of the police, then, my Lords, this is all to the good. I personally should like to go further (though I realise it is out of the question) and aid those who do not go to the aid of the police, or of their fellow citizens in trouble, because 1375 they do not wish to be embroiled with the law and the law's delays. I can think of one case recently in the papers of a man who had volunteered to give evidence of an affray. The case was put off on four separate occasions. On four occasions the poor fellow had to go all the way up to Newcastle and back again. There ought to be some way of encouraging a man to give support and help the law and not to put him to that sort of inconvenience.
I readily appreciate—seeing the look of apprehension on the face of my noble and learned friend the Lord Chancellor—that this point cannot go into the proposals. Nor do I want to ride another of my hobby-horses. Very often cruelty and hardship is caused to victims of crimes, not of violence but of fraud. There I would like to compensate the victim who has been defrauded. But, again, I realise it is well outside the scope of the proposals put before us to-day.
If these proposals are attacked for being too vague, I support them. I am glad they are vague. I am glad that the Government have not attempted to draw up too watertight a scheme. I am glad that the White Paper, unusually for a White Paper, admits there is room for improvement, admits there is room for experiment, and invites comment and criticism. This is a very unWhitehall attitude. I think it is unfair, on the one hand, to criticise the Government for having been dilatory in not bringing these proposals forward in a greater hurry, and then to criticise them for bringing them forward at all because it might be suggested there is political advantage to be gained thereby. You cannot have it both ways. I personally think that the Government have done quite right to go into the matter carefully, to collect the voices and sound opinion, and then to bring forward a proposal such as this, the general purpose of which can be readily approved by your Lordships and by the country, and the details threshed out afterwards.
Two points, my Lords, do slightly worry me. I am not quite happy about the arrangements for appeals. I think I understand it, but I wonder whether the man in the street is going to understand it. Here, I find myself in agree- 1376 ment with the noble Lord, Lord Gardiner, on the subject of the infallible lawyers. Far be it from me to say a word against lawyers, either. In my opinion, there is no such thing as too many lawyers. I did not hold that view when I was in practice at the Bar, but I do now. But I think that possibly the inclusion of somebody with experience as a welfare or social worker might enhance the standing of the court in the eyes of the man in the street. Frankly, I do not think this court is going to have a great deal to do. I think there are going to be few claimants. If the statistics put forward by the Cambridge Institute of Criminology are accurate, I should have thought that about a couple of hundred claims a year would be the most.
I say that having recently come back, a few weeks ago, from New Zealand, where I was naturally interested to see how they were working their scheme. I was glad to hear noble Lords pay a tribute to New Zealand for once again leading in social reform. It is not the first time we have followed New Zealand in a field of social reform. Your Lordships may remember that I spent eleven years getting through your Lordships' House a Bill called the Marriage Enabling Bill, to enable you to marry your divorced wife's sister. That was modelled generally on the New Zealand law. I am not, of course, suggesting for one moment that there is any connection between the compensation of victims of crimes of violence and marrying your divorced wife's sister. But when I was out in New Zealand I took the opportunity of going through some of their recent legislation to see whether it suggested to me anything further for Private Members' Bills, and your Lordships will be grieved to hear that it does.
The noble and learned Lord the Lord Chancellor was, I think, asking for trouble when he invited us to criticise the name of the court. Paragraph 9 says:The compensation scheme will be administered by a body to be known as the Victims of Crimes of Violence Compensation Board.This will not do. The noble and learned Lord the Lord Chancellor is quite right. This is the Home Office not at its best—and I am not going to stand here and have one word said against the Home Office, which I admire immensely, having 1377 served in it for three years. But it does have a penchant for long words, long names and long initials. The noble Lord, Lord Gardiner, tells us that for the first time he was speaking from the Despatch Box. I remember well the first time I spoke on behalf of the Home Office from the Despatch Box on this side of the House. At the top of my brief the official advising me had put the initials, "F.G S.B.C.S.T.B.". I said, "What on earth is that?" The official said, "Minister, this is your first appearance at the Despatch Box. You are new to the post. The matter is a difficult one. The Opposition are already restive. If you go wrong they will be after you—they will probably be after you if you go right, as well. F.G.S.B.C.S.T.B.—For God's sake be careful and stick to your brief".
My Lords, I hope that the noble Lord will be able to find some shorter title for this court. I have not given much thought to this myself—he invited us only a little while ago—but do they not still call some of the magistrates' courts courts of piedpouclre? You came in hotfoot from the market, the market dust still on your feet, and you went into the magistrates' court for justice. I would not suggest we call it the "Black Eye Court" or the "Bloody Nose Court", but some similar name might be found. Another point occurs to me. Do your Lordships remember the case of Alec de Antiquis, the modest and decent little greengrocer, father of six and good soldier, who came to the aid of the police and lost his life in so doing? Why not call it the Antiquis Court, in memory of the man who really first roused the public conscience in this matter?
But these are small points. The big point is that a social injustice is being put right by the Government in a generous and fairminded way. They are asking for our blessing to the proposals, and our help in formulating the details. I think the Government are to be warmly congratulated in the course of action they have taken.
§ 5.35 p.m.
§ BARONESS WOOTTON OF ABINGER
My Lords, we all know the story of the airman who came down by parachute at a lonely spot on the Yorkshire Moors and who asked the first person he met 1378 what was the best way to Leeds. The only answer that he got was, "If I wanted to go to Leeds I wouldn't start from here". Anyone who tries to devise a scheme of compensation for the victims of crimes of violence is very much in the position of that distressed airman. It will be apparent from the two White Papers and from the debates that have taken place in this House and in another place that the framing of any scheme bristles with difficulties, and those difficulties are, I think, derived from the fact that it is almost impossible to make a scheme which does not contain glaring anomalies in relation to other provisions. For the explanation of that we surely have to look to the fact that we have to start from here, and that "from here" means from a point at which we do not yet have a consistent and civilised philosophy about the right attitude to take to persons who, for whatever reason, find themselves, possibly seriously, possibly permanently, injured.
It might be worth while just spending a minute or two thinking of the different fate that may await someone who suffers, shall we say, a severe paralysis. This may be simply the result of an illness; he may be afflicted with a stroke. He will then be entitled to sick pay and, possibly, subsequently to disablement benefit, and he will receive, as a single person, £3 7s. 6d. a week. He may equally be disabled as a result of an accident in his employment, and he may then qualify under the Industrial Insurance Scheme and receive £5 15s. a week. If, on the other hand, he is injured at work and has reason to think that his employer is at fault, he may take a case against his employer and be awarded damages, receiving a very much larger sum. If, again, he is not injured at work but, as he leaves his work, is run over by a motor car, again he has the prospect of getting very substantial damages unless he himself has behaved so imprudently that the motorist is held to be either not wholly or not at all to blame.
Even without including the complexities of war pensions, it is obvious that the approach to the needs of the injured and disabled person in our society is derived primarily from trying to fix responsibility, from trying to locate the blame for the condition, rather than 1379 from trying to see what are the needs of the person who has been disabled and beginning to assess the problem from that end. The reason, in my opinion, is that the whole approach to this problem is obsessed with the search for blame, with the attempt to assign the blame, and to ascribe the fault to those persons responsible. Fault is relevant, my Lords, in so far as it may indicate the source from which compensation or benefit should come; but fault is elusive, and it is deceiving if it is treated as grounds on which to assess the amount of compensation to be paid to a person whose injury feels, presumably, just the same whether he has been paralysed by illness, by accident at work, by a motor car, in war or by a criminal.
It is therefore not possible to devise a scheme which does not bristle with anomalies, and the real question which I think faces anyone who attempts this difficult task is: by what way can the anomalies be minimised? I should myself like to say that I regret that the Government discarded the idea that the scheme might have been grafted, at any rate in part, on to the Industrial Injuries Scheme. I think, had that been done, it would have offered the opportunity, first of all, of giving a claim as of right—and I attach much importance to that—and, secondly, it would have provided, in the first instance at any rate, easy and experienced machinery for dealing with the claim. After all, an accident at work and an attack by a criminal producing the same physical result in the victim might well be handled, I should have thought, by the expeditious and efficient machinery which is established under the industrial injuries scheme; and, I might add, by the inexpensive machinery which that scheme affords. It would, moreover, have the advantage that we should all be covered. This is a risk we all run; but we are all members of the insurable population and the additional cost on our present insurance of carrying this risk would, fortunately, still be quite negligible.
When it comes to the actual details of the scheme the Government have adopted—and I regret that we have not followed the plan of grafting it on to the industrial injuries scheme—I shall not attempt to embroider on the polished eloquence of my noble and learned friend 1380 Lord Gardiner; I shall confine myself to very few points. I should like, first of all, to associate myself with what he and other speakers have said about the unfortunate decision that the Board should consist entirely of lawyers. My noble and learned friend Lord Gardiner said that he is naturally prejudiced in favour of lawyers, and I must accordingly plead guilty, as a layman, of being prejudiced in favour of laymen; but I should have thought that many of the questions that this Board will have to decide will be questions that are matters of fact rather than of law.
This is particularly so since the Board will have to decide what is called "eligibility" as well as having to do the assessing of damages. It may be that experienced lawyers have a technical skill in assessing damages, and this will be relevant to assessment of compensation; but in the issue, for instance, of whether the victim has himself in some measure been at fault, a question of fact will arise. On this, I should have thought a lay opinion would have been most valuable.
I should like also to associate myself with the doubts that have been expressed at the wisdom of allowing the Board to meet in private and to make no public notification of its decisions. Although the money is given ex gratia, it is public money; and the public, who is concerned that some scheme like this should be devised, is equally concerned to know if some justice has been done and, in particular, the amount of the ex gratia award. Many of the cases will not attract great public attention, but there have been cases involving very serious, permanent injury (where, of course, no compensation was received) which did so. I think public confidence in the scheme would be enhanced if it could be known in future what kind of provision is made for such unfortunate cases.
I would also challenge the decision that the ceiling should be determined by the average rate of industrial earnings. I presume that the figure meant by this is the Ministry of Labour's periodical assessment of earnings in industry. This is a very specialised return. It relates predominantly, indeed almost exclusively, to manual workers. It is affected by factors such as overtime and 1381 short time, and it seems a rather curious criterion to fix a ceiling of compensation for victims of crimes of violence. If the scheme is operated as is suggested in the White Paper, so that the industrial earnings figure will be divided according to the sex and age of the victim, it will also, of course, have the effect of making the ceiling of compensation payable to men just about double that payable to women.
There is one other criticism of the scheme in detail—perhaps it is rather more than detail—that I would make. It is, I think, common to all the proposals that compensation should be reduced, and, indeed, should not be paid at all if the victim has been materially at fault. Again, the criterion of fault enters into the discussion. But I wonder how this is going to work out in practice. The Board is going to have an application from someone who claims to have been injured by criminal attack. It may be a case in which no court proceedings have been taken because the offender had not been identified. In such cases it seems to me that to determine the degree of fault of the claimant is virtually going to mean having a pre-hearing of a criminal case without the defendant being present.
The claimant may say that he (or she) was attacked when no provocation of any sort was offered, when he was going about his peaceable pursuits and suddenly became the victim of an attack. The offender, on the other hand, might say that he was acting in self-defence and that at least half the blame, or more, lay on the claimant. But if the offender is not identified there will be no way of cross-checking the claimant's statement that he contributed no provocation.
I think the end of this story will be that it will be found impossible to determine the measure of fault of the victim. I think experience will prove that it is not practicable. I hope this will be so, because I tried to say at the beginning that this attempt to assess people's needs after they have suffered serious and possibly permanent injury by the question of whether it is their fault or anybody else's fault is an illogical and uncivilised approach to the subject. We appreciate the importance of any scheme which is so experimental being flexible, but the flexibility in this case has surely been 1382 carried rather far. The scheme gives no rights; it leaves complete discretion to what my noble and learned friend calls "the six infallible lawyers", and it gives virtually no direction to them as to how that discretion should be exercised.
It is true that it could easily be modified; but it is also the lesson of experience that schemes introduced experimentally have a remarkable way of continuing as they have begun. They may be extended or modified, but experience suggests that fundamental changes in the whole basis are exceptional—and long delayed, even if they do occur. After all, it has taken half a century to change the fiat rate of the National Insurance Scheme to a graduated scheme, and I think it would take more than half a century to change an ex gratia scheme of compensation to one that gives compensation as of right. If we begin with an ex gratia scheme, it is a fair assumption that we shall still be following that same ex gratia plan twenty, thirty or fifty years hence.
I do not understand why the Government are so much afraid of legislation on this matter. Legislative schemes would, at least, have been subject to detailed and constructive criticism. The matter has been under discussion in your Lordships' House and in another place for a period extending over some ten years. If the Government are not able to produce a Bill which will stand Parliamentary scrutiny in ten years, it is very odd that they have to be content with what my noble and learned friend Lord Gardiner indicated as an extraordinarily vague and imprecise scheme.
§ 5.50 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I think that this debate and a prior debate in your Lordships' House, as well as much public discussion, have shown that there is widespread general support for the view that some scheme should be introduced in order to give compensation to the victims of violence, and I am wholeheartedly of that view. It is natural, I think, that we should put to ourselves the question: what is the basis upon which we are proceeding? And it is natural that we should ask ourselves: is the State liable to pay these suggested sums of compensation? I should have thought that we should all be obliged to give the answer that the 1383 State is not legally liable to pay, while adding that there is in the community a real responsibility. We are all members of one community. If there is some general malaise, one symptom of which is the perpetration of crimes of violence, then in one way that is the responsibility of us all.
But it seems to me that it does not matter whether there is a legal obligation. The question is not: Must we do this? The question is not: Are we liable to do this? I should have thought that the question is whether all the urgings of concern and of compassion make us feel that we must do this. This is not a situation in which we should wish to pass by on the other side. Therefore, for myself, I would express wholehearted agreement with the approach that was indicated in paragraph 8 of the White Paper, when it says that:The Government do not accept that the State is liable for injuries caused to people by the acts of others. The public does, however, feel a sense of responsibility.And so on.
I think it is not without interest to remember that when damage has been done to property and damage has been suffered by property as the result of riots, there has been a provision for compensation. The ancient theory was that there was responsibility of each recognised area for the preservation of peace within its borders. And so the Preamble to the Riot Damages Act, 1886, began with these words:Whereas by law the inhabitants of the hundred or other area in which property is damaged by persons riotously and tumultuously assembled together are liable in certain cases to pay compensation for such damage …".That Preamble was later repealed, but the main provisions of that Act still remain in force and give a right to claim compensation out of the police rate to persons who have suffered loss as a result of damage to their property by rioters. That, of course, is a very special case.
I think it is not without interest to note that in Section 2 of that Act, in reference to compensation, are the words:But in fixing the amount of such compensation regard shall be had to the conduct of the said person whether as respects the precautions taken by him, as respects him 1384 being a party or accessory to such riotous or tumultuous assembly or as regards any provocation offered to the persons assembled or otherwise.That gives a useful pointer to the wisdom of the provision which is set out, I think, in paragraph 15 of the White Paper.
I certainly think it is wise to proceed, as is now being done, on an experimental basis, just as I think it is right that at the present time the payments should be regarded as ex gratia payments. I feel that it would have been extremely difficult at this stage, and perhaps not entirely advantageous, if a wholly precise scheme had been drawn up. The discussions in your Lordships' House and public discussions elsewhere have shown that there are some very difficult cases which will need consideration. It has been said that a lawyer is one who finds a difficulty for every solution. In defence of lawyers, I think it ought to be added that those who can look ahead and see the difficulties are performing a very necessary and a very useful function.
My noble and learned friend Lord Gardiner, for whose utterances I always have great respect, and I have listened to them so often with pleasure, referred to the "six infallible lawyers"—that is to say, the members of the Board. The noble and learned Lord on the Woolsack wondered whether the words "Victims of Crimes of Violence Compensation Board" was quite a happy phrase. In these days, when we put everything into initials, it would soon become known as V.C.V.C.B. I would endorse what the noble and learned Lord on the Woolsack said: that it might be better to find some other name.
My noble and learned friend Lord Gardiner referred to the "six infallible lawyers," but I do not think that anyone appointed to the Board would imagine himself to be infallible, nor would he think that others would regard the members of the Board as infallible. Indeed, I think that their whole usefulness would be because they would not be infallible. I quite see the force of the point taken by my noble and learned friend and the noble Baroness, Lady Wootton of Abinger, that it might be desirable not to have all lawyers on the Board, but I should have thought that in 1385 the first place it probably would be a good thing to have the Board consistting entirely of lawyers, because the functions of the Board would be not merely to do their best to administer the scheme as outlined in the White Paper, but also to apply their minds vigilantly and constantly to the question of how the machinery might be improved. And I should hope that, either in annual reports or in some other way, they would make representations not merely on what they had done, but also on what they thought could be done and how they thought the machinery could be improved.
In that connection, I should have thought that experience might show that after a time it would be necessary to draw up a scheme with more precision than would be possible at this stage. I quite see the force of the point taken by my noble and learned friend Lord Gardiner in having reports, so that members of the public will be aware of what the Board are doing. Somebody goes to a court of law having a case of a particular kind and receives judgment in certain terms, and it is right and proper that someone else who goes at a later time with a similar case should be treated in the same way. Therefore, as time goes on it may be desirable that there should be as much knowledge with the public as possible as to how the Board are proceeding.
But I would suggest that, in the first place, and as this scheme is starting and developing, it would not be desirable to issue reports of the decisions and reports of the facts of particular cases that have come before the Board. It is an ex gratia scheme; it is experimental. The whole virtue of its being experimental is that precedents should not be created at an early stage, but the matter should proceed by way of trial and error. I think in that way it can best proceed.
I would only add one or two other points. I wondered whether a situation might arise when there would have to be some machinery to require the attendance of some essential witness who would not be co-operative and would not give the help that was needed. Experience alone will show whether that is so. Again, I wondered whether it might be necessary in time to have some machinery for the administration of 1386 some lump-sum payments in the case of adults, as well as the case of infants. Again, I would suggest that experience will be the best way of deciding whether such a necessity arises.
I would add one further point. The fixing of damages on the Common Law basis and in reference to claims that may be made under the Fatal Accidents Act show that anyone seeking compensation must have legal advice. I think it is quite right that the proceedings should be as informal as possible and that they should be in private, but it will be essential to have some legal advice. That being so, I wondered whether there ought not to be some provision for making some payment, perhaps on a very modest and reasonable basis for obtaining that legal advice. Again, on such a matter it may be that time will show what is the best course.
I am sure that everyone who takes part in this debate will wish to be helpful, and I think that this has been the spirit of every speech made so far today. I join with all those who feel that a notable advance is being made by putting into effect some scheme of the kind that is now before your Lordships.
§ 6.4 p.m.
§ THE EARL OF LONGFORD
My Lords, the noble and learned Lord who has just spoken need have no doubt about our fondness for lawyers in this House: we are very fond of lawyers. We are also prepared to be very fond of Judges, but I am afraid that in their case absence makes the heart grow fonder. We miss them very much from most of the social debates. Therefore, I am pleased that the noble and learned Lord, Lord Morris of Borth-y-Gest, has been able to address us this afternoon, as he has on previous occasions. I was also looking forward to a speech later on from the Lord Chief Justice; but there is no sign of the Lord Chief Justice, and I fear that once again we may be disappointed by the Judges. I thought I heard somebody say, "He is coming", and somebody else say, "He's been, and gone". Perhaps both are true.
§ THE LORD CHANCELLOR
I know that the Lord Chief Justice was in great difficulty this afternoon. I understand he had an engagement, which may have lasted longer than 1387 usual. Sometimes people have to keep engagements after they have spoken, but in his case it is before.
§ THE EARL OF LONGFORD
Now all is plain, and I hope he will have the opportunity of reading all the speeches to-morrow, if he does not hear them before the reply this evening. At any rate, I was saying how much we like listening to Judges, including the noble and learned Lord the Lord Chancellor, who has helped us so much this afternoon.
The "old firm", if I may call them that—I would almost call them the "old contemptibles"—my noble friend Lord Silkin and myself, who bore the brunt on this side on the last occasion, have been powerfully reinforced this time by my noble and learned friend Lord Gardiner and my noble friend Lady Wootton of Abinger. I was very glad that my noble friend Lord Gardiner was in a position to point out to the Lord Chancellor, as I should hardly have dared to do, that the many difficulties which the Lord Chancellor explained on the last occasion as arising from the scheme, with which I was associated, have not in any way been cleared up by the scheme which he has expounded to us. He said last time that there were all these difficulties, and I think he implied that they would be disposed of before a scheme was proposed. Well, he would hardly claim that they have been overcome by being left to the "six infallible legal gentlemen".
There is one question that I should like to put sharply, if I may, though, of course, in a friendly and deferential spirit, to the noble and learned Lord the Lord Chancellor, which perhaps he will answer now, or maybe he will leave it to reflection. I want to ask—and I do not think any of us on this side of the House knows the answer at present—whether this scheme is capable of modification in any degree before it goes into operation. The Home Secretary encouraged another place by saying:My right honourable friend the Secretary of State for Scotland and I will welcome any constructive comments from both sides of the House.That was the tone, as it seemed to me, though I did not get down all the words, of the Lord Chancellor's opening speech 1388 to-day. But I should like to put this question clearly to the Lord Chancellor: is there any possibility of modifying this scheme before it goes into operation? I am well aware, from what he said, that when it has been working for some time it may or may not be amended.
There is one point I should like to make before I come to the main argument—and I do not intend to detain your Lordships for long. We are confronted with a scheme for ex gratia payments. I can understand, as my colleagues on this side have understood, the argument that the scheme is bound to be experimental, in the first place, and therefore for a time, at any rate, there are some reasons for making the payments ex gratia—though I sympathise very much with what my noble friend Lady Wootton of Abinger said about the danger of ex gratia payments, or experimental payments, settling down as a permanency. But I understood (if I misunderstood the Lord Chancellor perhaps he will correct me, now or later) that the noble and learned Lord argued further in favour of ex gratia payments that ex gratia payments are more suitable and proper because the State does not accept a legal liability here. I am ready to give way if I misunderstood the noble and learned Lord, but that was the impression he left with me. Yet we have been told by the Home Secretary elsewhere that in time to come these payments might become statutory.
§ THE LORD CHANCELLOR
My Lords, the noble Earl will surely distinguish between a statutory scheme, and making provision under a statutory scheme, and a scheme which imposes a legal liability. I was dealing with legal liability as a tortfeasor and contrasting it with that.
§ THE EARL OF LONGFORD
I realise that some legal jargon has been introduced, which I must be supposed to be incapable of understanding, but I think I get the general picture of the Lord Chancellor's reply without this peculiar lingo.
The Home Secretary said elsewhere:If in the light of experience it is eventually decided to have a permanent scheme, it may well become desirable then to put it on a statutory basis.Would that mean that the ex gratia basis would be modified? I suppose that there 1389 is no more legal jargon available, so to speak, for the moment. This, at any rate, leaves me in temporary possession of the field. I therefore go on to press this point. Are we to suppose that the reason why it is an ex gratia payment is because there is no legal acceptance of liability?
Here I am bound to say—and I share a good deal of the desire of the noble Baroness, Lady Wootton of Abinger, for clarification in the whole philosophy which is operating here—that I understood the Lord Chancellor to say that ex gratia payments were appropriate (I will give way in a moment if I have misinterpreted him) because this was not a scheme of legal liability, but an extension of the Welfare State. The Lord Chancellor certainly used that expression. Surely no one is going to suppose that the Welfare State has been set up primarily by ex gratia payments. I must raise this point, and I have no doubt the noble Lord, Lord Silkin, will press it again. If it is going to be a regular, normal, feature of the Welfare State, as one might think it would be from the reference to the extension of the Welfare State, then one would think it is to be on the same footing as the rest of the Welfare State. I am bound to ask the London Chancellor to inform us whether he is seriously arguing that, because this is just an extension of the Welfare State, therefore ex gratia payments are appropriate.
I have perhaps created enough difficulties for the Lord Chancellor to be going on with, and before turning to my main argument I would call attention to the point which I know is in the mind of the noble Baroness, Lady Wootton of Abinger, and comes to my mind also after the speech of the noble Lord, Lord Gardiner, and after what the noble Lord said just now. Surely there is a further argument for publicity beyond that given by the noble Lord, Lord Gardiner. Surely, unless there is a reasonable amount of publicity, unless we are told that the awards are made, this scheme will simply fade into oblivion. I suggest that we must ask for the publication of awards, otherwise people will not use this scheme, and all our labour will go for nothing.
Although I have been involved in the details in the past, I feel very strongly 1390 that the reason why some, at least, of the practical difficulties arise is because our values here are so fluid fundamentally. There is so little agreement about the formulation of what are our fundamental principles. I take a slightly different point of view but I do not think it conflicts with that of the noble Baroness. She was concerned more with the need for a proper approach to compensation, and I am more concerned with the proper approach to punishment, but I think that in many ways our arguments will come to the same.
What is rather striking, perhaps, in this field—and I think the Lord Chancellor may agree—is that while everybody seems to have reached the conclusion that some kind of State scheme should be introduced to compensate victims of violence, yet none of us finds it very easy to formulate our reasons for selecting this particular category of citizens and saying that they ought to be compensated. Why is it, then, that we all agree that some such scheme as this should go forward? It is surely not quite enough to say that public opinion demands it. We are none of us such slaves of public opinion as to adopt a scheme merely because it is popular, though I agree with the noble Lord, Lord Mancroft, and others, that, other things being equal, the popularity of one's proposals is perhaps an advantage rather than a disadvantage.
I suggest that the strong popular feeling which we in our different ways seem to share, the emotion behind this reform, is a mixture of sympathy for the victim and indignation concerning the outrage. The indignation is directed sometimes in an unchristian spirit, but naturally enough, in many cases, towards the aggressor. I cannot myself find a logical reason—I found this difficulty when I was Chairman of the Justice Committee—why crimes of violence should be singled out from all other crimes, except that, on the whole, they tend to arouse more sympathy and indignation than other crimes do.
If I am asked why, nevertheless, I am so strongly in favour of some scheme for the victims such as that being proposed, I reply that a start has to be made somewhere. This is fundamentally my own view. Some of the cases we are discussing represent ghastly outrages and appalling distress. In other words, 1391 if we are going to make progress eventually over the whole wide front of compensation to victims, we must begin in the sector where public opinion is most favourable to the cause. That is my own view, but I suspect it may be shared by others.
About the future—and I am more interested in the future than I am in the present, or in the next year or two—I wish to say only a few words and those of a general kind. I repeat what I was beginning to say just now: that the difficulties here arise partly from what the noble Baroness said about the need for a proper theory of compensation, and partly from the need for a proper theory of punishment. As I think I said in the last debate a year or two ago, I ventured myself to write a small book on the theory of punishment. I expressed the hope there that one day reparation by the criminal to the victim would come to play a much larger part in any scheme of punishment. As I am afraid I have said, and so many of us have said, so often in this House, incarceration in prison, our present main form of punishment, is a wretched form of punishment; and surely all of us, if we look towards the future, would prefer a system in which incarceration or imprisonment was largely supplanted by compulsory work for the community.
I realise, of course, that it is going to be a long time before incarceration becomes the exception, and compulsory work under relatively free conditions the rule. In the meantime, vastly more could be done than is being done to organise prison work efficiently. But however much is done in that respect, I am sure the real answer can never lie in imprisonment as the main national punishment of crime.
Even when we have arrived, some way on, at a penal code where incarceration, with all its moral sterility and economic inefficiency, has been largely superseded, I do not think—although this is a matter of argument—that a link between the aggressor and the victim will or should play a dominant part. Some people are drawn towards a scheme of the kind we are setting up to-day because they think if not now eventually it will enable the victim to be compensated directly by his 1392 particular aggressor. I doubt whether that will ever, in the end, prove a very satisfactory arrangement. The victim, it seems to me, will always need to look towards the State for his remedy.
But the idea that reparation is being made to a fund out of which victims are compensated should provide a great step forward in the philosophy of punishment. I think that a system of that kind would be far more likely to induce the prisoner to understand the error of his ways and to achieve his redemption than any punishment based, as it now is, on the theory that he has sinned and must suffer, without any obvious benefit to anybody. In other words, in order to reform the delinquent I think one must bring home to him that his punishment is helping somebody, and in the long run is helping the person he has injured, if not directly in the individual cases.
For these reasons, I personally take the utmost interest in anything which leads in the direction of making restitution a major feature of our penal system. But until we drastically reform the life we impose upon those we punish and until we get rid of incarceration as the main feature of that punishment, we shall make little more than token progress towards the required revolution. In the meanwhile we shall certainly relieve the distress of a number of innocent people through the scheme which the noble and learned Lord, the Lord Chancellor, has explained to us. For that, at least, we have every reason to be grateful.
§ 6.21 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, it is with some trepidation that I plunge into this labyrith of law, but I do so because I once had an acquaintance who was coshed and rather badly hurt, so I feel rather strongly on this matter. I think I am one of the few laymen to speak in this debate, so I must crave the indulgence of noble Lords.
There is no doubt at all that this White Paper is going to be extremely popular with the public. It has become apparent, I think, for some time—though this feeling has been slightly redressed by the train robbery convictions—that a large number of the public have been 1393 rather under the impression, rightly or wrongly, that the courts and lawyers generally have lent over backwards to be kind to the criminal. I do not wholly agree with that view, but its existence is a fact, and it is going to be of great encouragement to the public to have these proposals put into practice.
But when we come to paragraph 8, I rather agree with the noble Earl who has just sat down. I cannot really agree that the State ought not to have any legal liability to the victim of a crime of violence. Surely the State ought to have a qualified duty to such a victim. After all, if you want to get revolver ammunition to defend yourself, it is extremely difficult to do so. We are not allowed to protect our houses by electrified barbed wire, land mines or other devices, so I think that the State, in so far as it refuses to allow the individual to protect himself from hardened criminals, has a duty to compensate if the individual is injured. But, as I have said, I think it has to be qualified. You cannot have people being compensated who are hurt in a public house brawl or through gang warfare, or a husband and wife having a family quarrel. Obviously, it has to be defined. I think several noble Lords have said that the White Paper has not defined it. But the White Paper appears to have defined quite clearly the type of crime where restitution is to be paid.
May I turn to paragraph 17, about which the noble and learned Lord, Lord Gardiner, had something to say? As I have said, I agree that if a husband or wife quarrel the State cannot be responsible. But how about a man who had a cook—if he were fortunate enough to-day to have a cook—who had earlier been let out of a State institution and who went berserk and seriously hurt members of the household? I should have thought that the State had a duty to recompense the members of that household. I am quite sure that that argument would very easily be shot down by lawyers, but, From a layman's point of view, I think it appears quite reasonable—from my point of view, anyway.
I now turn to paragraph 26, regarding the cost of legal representation. Why, if the victim is extremely poor, cannot he have legal aid, as in an ordinary court? I cannot see that there is any objection to that. If the victim is 1394 poor, and perhaps is unable to plead his case himself, obviously he will not have the means to engage a first-class solicitor or barrister. I think that in that case the victim ought to have legal aid if he cannot afford to pay for the best legal assistance available.
Paragraph 28 is, I think, the most important and has caused most controversy. Really, this idea that criminals are extremely poor people is completely out of date. The average criminal, particularly, for example, a hardened, experienced cat burglar, is probably a lot richer than some of your Lordships. I think it is quite absurd to look upon him in a nineteenth century manner as a poor, down-at-heel individual.
§ THE EARL OF LONGFORD
My Lords, I am sorry to interrupt the noble Viscount. He may have had a lot of experience of delinquents, but I should be really astonished if anybody who had had a great deal to do with delinquents thought that many of them were of the type the noble Viscount mentioned. I should have thought that what the noble Viscount has just said is almost 100 per cent. removed from reality, except in the case of a few, possibly a handful, who have made a lot of money out of crime.
§ VISCOUNT MASSEREENE AND FERRARD
I am thinking chiefly of burglars who know their job; but, of course, with the petty criminal, perhaps—
§ THE EARL OF LONGFORD
I do not want to keep interrupting the noble Viscount, but we are talking of the criminals involved in crimes of violence.
§ VISCOUNT MASSEREENE AND FERRARD
Of course, burglars are often involved in crimes of violence. I have had friends who have been burgled and involved in crimes of violence. Perhaps the noble Earl holds this view. I think it is completely absurd to say, as a great number of law reformers do, that criminals will continue to commit crimes even if they do have to pay for the result of their crimes. I am quite sure if it did not materially pay criminals to indulge in crime the average criminal would soon stop doing it; I am quite certain of that.
I quite agree that, as our penal law is at the present time, we cannot have 1395 a criminal directly paying the damages. But I do heartily agree with the White Paper that the State should restitute and make reparations to the victims. I think that when penal reform comes along and prisoners are allowed to earn standard wages they ought to have to pay for the result of their crimes, but through the State. People say it is very hard to organise prisoners to make goods which are saleable to the public, and to make them into an economic unit. But I have visited prisons abroad. I have seen prisons abroad where prisoners are gainfully engaged in making first-class goods. So it is really no excuse to say it is impossible to do that.
I understand that the trade unions have this archaic idea; if you employ prisoners at a wage and make them turn out goods they object to it for some inexplicable reason. I think it is time that the unions dropped their objection in that matter. Of course, I quite agree that if a prisoner is making reparation through the State it ought to be only a certain percentage of his wage. He has to be rehabilitated and he presumably has dependants. But I think that, even after he is out of prison, if he has not made full restitution the State ought to keep an eye on him and see that he pays, for the rest of his life if needs be, until he has repaid the damages.
After all, if I am on a bolting horse and knock somebody over I am had up for damages, but if I go and cosh somebody and take his wallet I shall have probably two or three years at the taxpayers' expense in—I do not say comfort, but I suppose there are worse places than prisons. I can be sued I agree, but the law is, I think, rather an ass as regards that.
§ LORD AIREDALE
My Lords, I think it would happen. If the noble Viscount coshed somebody and he is a person, as he is, worth suing, I think he would find himself sued.
§ Viscount MASSEREENE AND FERRARD
Yes, I suppose I should; I think the noble Lord is right there. There is one point which strictly is perhaps not covered in paragraph 28. I do think that when it comes to damage to 1396 property the public ought to be allowed their burglary insurance premiums on their property as a 100 per cent. charge against taxation. I think it is only fair. As I have said before, they are extremely heavily taxed, by income tax, rates and all other forms of taxation, and the State has a duty to protect us and our property. I hope that some future Chancellor of the Exchequer will bring that in. I do not suppose he will, but the present position seems extremely unfair.
To conclude, I repeat that I am quite positive that we shall have a reduction in crime if in the future, through future legislation, the criminal starts to realise that crime does not pay; if he has got to pay part of his wages or he has to sell his car to pay recompense, I am sure that the country will have a reduction in crime. I personally think that the really bad criminals are born. I know the noble Earl opposite will not agree with that. But even if a criminal is a born criminal, if he sees it does not pay I am sure he will reject his course of crime. I hope this White Paper will be implemented as soon as possible, and I am sure it is going to be of great encouragement to the public.
§ 6.40 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, I am indeed sorry not to have been able to be here sooner to listen to this important, interesting debate, and if I say anything which has already been said I can only ask your indulgence. In welcoming this scheme. I should like first to pay tribute to our friends in New Zealand. They are renowned for the breeding of race horses, and on this occasion I venture to think they have beaten us in the reform stakes by a head. The scheme has, I believe, the general blessing of all sections of the House and also of the legal profession. Many, no doubt, would wish to go further than is provided in the White Paper, and particularly to make the scheme a statutory one. But there is, I am convinced, much to be said for advancing slowly in this new field and treating the scheme as experimental, so long—I repeat, so long—as the ultimate aim is to put it on a statutory basis in the light of the experience gained meanwhile.
1397 Granted that the scheme is experimental, nevertheless I think it should be clear beyond doubt, in order that it may be properly administered. I would venture to spend but a few moments in drawing attention to one or two matters, maybe of detail but nevertheless important. The first concerns paragraph 22 of the White Paper, the basis of compensation. As is clearly stated, this is to be that of Common Law damages, subject to three exceptions. No one I think would quarrel with the general principle of an exception along the lines of sub-paragraph (a), or indeed of subparagraph (b), but I venture to think that the exception in sub-paragraph (c) ought to be deleted.
Much attention was paid to this exception in another place and I expect before your Lordships' House; but the way it strikes me is this. Granted, as I feel sure is the case, that the expression "loss of expectation of happiness" is the same as "loss of expectation of life", nevertheless in a claim at Common Law the amount paid for a reduction in an injured person's expectation of life is almost insignificant compared with the general damages for loss of potential earnings and for loss of amenities; and yet those general damages will be cut down according to the reduction in the span of life. Thus, if, as a result of injury, a victim's life is reduced to say a span of five years, the damages represented by his loss of potential earnings and loss of amenities will be confined within those five years. Why, therefore, I ask myself, that being so, should he be deprived of the comparatively small sum due to him as the result of his loss of expectation of his normal life? It seems to me, to put it bluntly, that it is really cheeseparing to take that element out of the Common Law damages.
When one comes to the case of a victim who is dead, then there is a claim, and properly so, for damages, dependent on the basis of the Fatal Accidents Acts. Nothing is said of damages under the Law Reform Act, and I imagine intentionally, because the main element in Law Reform damages is the loss of expectation of life, and this is not a scheme to benefit those who will inherit the estate and therefore get the damages for the loss of expectation of life, but for 1398 compensation to the individual injured. Nevertheless, there is another head of Law Reform damages—namely, funeral expenses. It is true that if there is a dependency claim and an action is brought under the Fatal Accidents Acts, funeral expenses may be recovered. But there may well be cases where there is no dependency claim. Take, for instance, an infant who is killed. His father has to bear the funeral expenses, and yet the father has no dependency claim. Why, one asks oneself, should not that father be reimbursed the funeral expenses?
The other matter to which I desired to draw attention was paragraph 14 of the White Paper. That provides that the Board will entertain applications only in certain cases; and the one that I wish to draw attention to is the case where there has been injury of the required degree directly attributable to an attempt by the victim, acting as a member of the public, to apprehend a criminal. The words, to me at any rate, are not clear. I am not at all certain what the intention is. Must it be an attempt by the victim himself personally to apprehend a criminal? Should it not rather be an attempt to assist the police to do so? Secondly, as worded, it would appear that the attempt to apprehend will attract compensation only if the man concerned turns out in fact to be a criminal. Why should it not be extended to assistance to apprehend a suspected criminal?
Finally, in its context I fear that there are some who may construe the reference to the criminal, an attempt to apprehend whom has been made, as a criminal of the type being dealt with—namely, a man guilty of a criminal offence involving violence. I venture to suggest there is no reason to confine compensation to such a case, but that it ought to extend to assisting the police to apprehend a criminal or suspected criminal, of whatever type, of whatever criminal offence it is suspected he is guilty. I confess that I should like to widen the scope of paragraph 14(a) to cover assistance to the police to something of this nature: that it should coverinjury … directly attributable to actions taken by the victim, acting as a member of the public, to assist the police with a view to apprehending any criminal or suspected criminal or otherwise".1399 I agree that that is of course subject to the comment that it falls outside the context here being considered; but it seems to me that there is much to be said today for encouraging, rather than discouraging, a member of the public to assist the police. I see that in this I have the support of the Report of Justice. In paragraph 25 of their Report they say:Furthermore, we see no logical distinction between persons injured accidentally in the pursuit of offenders who commit one of the scheduled offences and those injured in the pursuit of other offenders. We appreciate that compensation in such cases may fall outside the general context of a scheme mainly concerned with crimes of violence: but we are persuaded that the need to encourage members of the public to give more assistance to the police justifies the making of special provisions.I would urge that the matter should be extended in that way. My Lords, that is all I desire to say.
§ 6.48 p.m.
§ LORD SILKIN
My Lords, in making the final speech from this side of the House I should like to begin by seeking to clarify what this valuable discussion this afternoon has been about. The point was made by my noble and learned friend Lord Gardiner, and also by my noble friend Lord Longford, that we ought to be quite clear as to what we are doing. Formally, we are being asked to take note of the Government White Paper. We have indeed taken note of it, and have discussed it at some length. We were also told that there was room for improvement in the White Paper; and I would assume that the purpose of this discussion was to put to the Government our points of criticism of the White Paper and suggestions for improving it; and that the Government would take note of what was said and in due course, if they thought it necessary, revise the White Paper and bring forward another one.
I should like to know whether that is the intention of the Government. If it is not, and if they are going to stand firm on this Paper, then what has been the point of this discussion this afternoon? The debate has taken a mixed form. Some noble Lords have directed themselves practically entirely to discussing the general principle of compensation; others have made detailed comments and criticisms. In fact if one 1400 takes the analogy of a Bill, some noble Lords have spoken as if they were addressing themselves to the Second Reading of the Bill, others to the Committee stage.
Most noble Lords have had detailed criticisms to make, and none more acute than the noble and learned Lord the Lord Chief Justice, who made a number of penetrating points, which he need not have excused himself from making because, although they were to a certain extent made by other speakers, they were certainly greatly reinforced by what he said. Even the valiant defender of the Government, right or wrong, the noble Lord, Lord Mancroft, made a number of detailed criticisms. He criticised the composition of the Board, or perhaps I should say he made suggestions as to the composition of the Board. He thought that there ought to be a social worker, and dealt with the question of appeals.
Therefore, I should be glad if the noble and learned Lord the Lord Chancellor would tell us whether in fact note will be taken of the points that have been made here, and that if the Government are sufficiently impressed by them a new White Paper or scheme will be issued which will constitute the charter for the Board to be set up, and which we shall have an opportunity to discuss—although I would assume that the Government would wish for some finality about it and that we should be asked either to approve or not to approve the final White Paper.
I would further ask who is to be the Minister responsible. I take it that it will be the Home Secretary, but it is by no means clear that it will be so. And since this is what is called an ex gratia scheme or voluntary scheme, could the Lord Chancellor tell us what is the statutory authority for the expenditure of money? It is not clear to me, and I should be glad to know whether the Home Secretary really has authority to spend money on a matter of this kind without statutory permission. I hope he knows that we are all very anxious that this scheme should be introduced as quickly as possible, but I should not like to see even the Home Secretary standing in the Box having to justify a large expenditure of money which he was not authorised to expend.
1401 There was a good deal of discussion about the question of whether this was an ex gratia scheme or otherwise. I find this an entirely academic question, and I think I said so the last time we debated the question. I suppose that it is ex gratia in the sense that the Government are under no obligation to introduce a scheme at all, but once they have introduced the scheme and carry it into operation I should assume that the payments would not be ex gratia. The Board would be required to make payments in accordance with the scheme. They would have no discretion beyond the normal discretion which any Judge may have. They would be required to carry out the scheme in all its detail both as to liability and as to compensation. Therefore, from that point of view I cannot follow what is the point of calling it an ex gratia scheme.
The noble and learned Lord the Lord Chancellor called the scheme experimental. I take it there will come a time when it will no longer be experimental. What is the intention of the Government at the end of the experimental period? Is it then intended to introduce legislation and to make it a statutory scheme? Is that what we are working towards? Most noble Lords expected, and certainly the noble and learned Lord the Lord Chief Justice expected, that in due course, once we had got over the initial difficulties and problems, the scheme would become a statutory scheme, and certainly that is the view of most of us on this side of the House. We accept—I certainly do—the Government's case for making it at this stage an experimental scheme, but we should wish that in due course it should be a statutory one.
There have been a number of criticisms and suggestions made. I will not try to put them forward again at any length, but I feel that it is perhaps desirable that they should be stated once more in a concise form so that the noble and learned Lord will be able to deal with them when he comes to reply. The first was as to the machinery of the scheme. There was criticism of the composition of the Board. My noble and learned friend Lord Gardiner referred to the Board as "the infallible lawyers". I will not go so far as that, but I think that most noble Lords who discussed the composition of the Board 1402 felt that it should not be confined to lawyers only. In this connection I would remind the Lord Chancellor that there are two kinds of lawyers; there are solicitors and barristers. I hope that he will remember that many solicitors have great experience of this kind of work, and that he will find it possible to appoint a number of solicitors, if the members are all going to be lawyers.
I feel that there is great weight in the case put forward that there should be other members of the public on the Board—for example, medical practitioners, and at least one woman. I should have thought that it might be of value to have somebody with experience of local government, magistrates, and so on. At any rate, I hope the Government will give consideration to the question of the composition of the Board, which no one has justified, except the noble and learned Lord, Lord Morris of Borth-y-Gest, in the first instance. He went so far as to say that, at any rate at the beginning, it might be desirable that they should be lawyers, but he did not rule out the possibility of adding to their number by having different types of experience represented as time went on.
Then there was the question of the type of hearing. As the scheme stands the hearings would be private, and I do not think anybody sought to justify the privacy of these hearings. Most noble Lords who referred to it thought that it would be desirable in the public interest that as much publicity as possible should be given to these inquiries. I do not think that even the noble and learned Lord, the Lord Chancellor really justified the case for private hearings.
In this connection I should like to reinforce what the noble and learned Lord, Lord Morris of Borth-y-Gest, said about legal advice. People may be in need of legal advice in putting forward their case, and I hope it would be possible for assistance to be given to people to get this advice. But I would go even further. Many people require assistance in presenting their case. After all, it is not always going to be an easy case to put forward, particularly on the question of liability. I think there will be many instances where a victim will be handicapped by not being able to have his case presented for him at the 1403 hearing. I would suggest that provision ought to be made for legal assistance at these inquiries.
Again, the noble and learned Lord, Lord Morris of Borth-y-Gest, put forward the difficulty that it may be necessary to enforce the attendance of witnesses. There is no provision for that, and while I fully appreciate the desire of the Government to make these hearings as informal as possible and to give them this informal atmosphere, nevertheless there ought to be some way of enforcing the attendance of a reluctant witness who is a material witness for the purposes of the inquiry. It may be that application ought to be made to the Board for leave to subpœna the witness. It should not be possible to require the attendance of a witness as a matter of course, but if the Board is of opinion that a witness is a material witness, then I think there ought to be machinery for enforcing his attendance.
I am, like other noble Lords, a little doubtful about the desirability of three members of the Board sitting as a sort of court of appeal over the decision of one member of the Board. I am not suggesting that they will not be objective or fair. I do not suggest that at all. In fact, as I understand it, it will not really be in the nature of an appeal; actually, it will be a re-hearing of the case with, I presume, any evidence that the victim wants to bring forward. Nevertheless, I think we ought to give an appearance of being fair, and it does not sound right that you appeal from one member of the Board to three members of the Board. It would take a lot to convince a person who is aggrieved that he has had a fair deal, and I would strongly suggest that we try to devise some other machinery for giving people who are aggrieved the right of appeal. So much for the machinery.
The amount of compensation came under criticism, and I should like to associate myself entirely with the criticism of my noble and learned friend Lord Gardiner, and the noble and learned Lord, the Lord Chief Justice. So far as paragraph 22 is concerned, I think that the noble and learned Lord, the Lord Chief Justice, without having heard the remarks of my noble friend, agreed with him completely that para 1404 graph 22 was vague and that it ought to be clarified. He gave certain examples which I do not think I need go into, but which illustrate the inadequacy in certain respects of paragraph 22. For instance, there is the case where there is no actual dependant, and where there is the question of funeral expenses. If our intentions are the same, there is no reason why we should not make paragraph 22 as clear as we possibly can.
I agree, also, that we should not confine the damages to pure financial loss; that there should be something for pain and suffering; that there should be some payment for loss of enjoyment or expectation of life; that in cases of rape there should be paid the expenses of pregnancy and, where the mother decides to keep the child, there should be a contribution to the cost of maintaining the child. I think that was supported on both sides of the House.
I should like to say one word about the scope. There is no list of crimes, and it is a debatable question whether a list should be incorporated in the scheme itself. There are arguments both ways. I fear that if you had a list of crimes you might exclude something which, on reflection, you felt you ought to include. Perhaps it is on the whole wiser to depend upon experience, and leave the definition as wide as you possibly can. I see the case for excluding minor injuries and very minor loss of earnings, but I wonder whether we have not gone too far. Three weeks' loss of earnings can mean quite a lot to poor people, although it may not mean very much to others, and I think it is a pity that we should impose this limitation upon the power of the Board to provide compensation.
Then there is the question of the members of the household. My noble and learned friend Lord Gardiner dealt with that, but there is also the question of definition. What is the position of a lodger, of a paying guest, of an au pair girl, or a servant? Are they to be excluded from the payment of compensation even though they are the victims of violence? Is that the intention? I should he glad if the noble and learned Lord the Lord Chancellor would explain whether it is the intention of the Government deliberately to exclude these classes of persons as being 1405 members of a household. I think, in any case, that that ought to be defined more closely in the scheme and, perhaps, if the Government intend to produce a final scheme, they will be able to consider more carefully what the mean by members of a household.
I should be happier if the definition were restricted to members of a family. There can then be no difference of opinion as to who are the members of a family living in a household. But to widen it to cover anybody who is living in a place and regard them as being members of a household, and to exclude them from compensation, certainly seems much too wide and leaves the matter open to a great deal of difficulty.
I hope the Government will give serious consideration to all the criticisms that have been made. Like every other speaker, I welcome these proposals, even if they are late, and I do not think the noble Lord, Lord Mancroft, is really facing us with a dilemma when we say that they are late and that they are also not very carefully considered. If the time, the ten years, had been taken up in preparing a very careful scheme and in presenting it to the House, then, of course, we could not have had it both ways; but, in fact, they have taken a long time to produce a scheme, and still they have not produced a scheme which is watertight or satisfactory in all respects. Indeed, everyone who has commented in detail on the scheme has found room for criticism. Nevertheless, I welcome the fact that a scheme has been produced. It is a beginning, and we very much hope that, as time goes on, it will be improved until, in due course, it becomes a statutory obligation on the Government in the same way as the welfare services are.
I have just one final point. The noble Viscount, Lord Massereene and Ferrard, and others, have made the point about a contribution from the aggressor, from the person who has committed violence. I fully agree that we should seek to obtain retribution where possible, but I would not agree with the noble Viscount that there are in prison many persons who have committed violence and who are capable of making a contribution. There are no doubt a great many wealthy people in prison, but they are not the violent people. They are the forgers and the manipulators, and so on, but 1406 they do not come within the scope of this scheme.
The people who commit violence are generally, though not invariably, people who are either without means or against whom you cannot enforce a judgment to pay. I am glad, therefore, that the scheme has not been made dependent upon obtaining reparation from the prisoner, or the person committing the violence. Nevertheless, we would all agree that every effort should be made, even as part of the scheme of retribution, to the end that a prisoner is required to pay as much as possible by way of compensation to the victim of his violence. I hope that the noble and learned Lord the Lord Chancellor, when he replies, will be able to give us satisfaction on these points, so that the scheme, when it goes forward, can do so quickly and with the general approval of all sections both of this House and of another place.
§ 7.13 p.m.
§ THE LORD CHANCELLOR
My Lords, with your Lordships' leave I will now, if I may, seek to reply to the points that have been made. The Motion that I moved was to ask your Lordships to take note of this White Paper. No one can doubt that that has been done. The noble Lord, Lord Silkin, has posed the question: what is to happen now that your Lordships have taken note of it? And the noble Earl, Lord Longford, raised the same question in the course of his speech. The Government would not ask your Lordships, nor would I, to take note of a White Paper, and invite your Lordships to debate it and comment upon it, if we were not going to have due regard to the observations made in relation to that White Paper.
The noble Lord, Lord Silkin, suggested that another White Paper should be brought forward if, in the light of what has been said, we thought it right to make some changes in the present scheme. I am certainly not going to undertake that. He himself expressed his anxiety to see the scheme being brought into force as soon as possible. But it would be only right to those noble Lords who have taken part in this debate—and, indeed, to Parliament—to keep Parliament informed of any change of substance which it is intended to 1407 make or which is decided upon in the light of the debate that is now reaching its closing stages in both Houses of Parliament.
The noble Lord then went on to ask me who was the Minister who would be responsible. Of course, there will be no Ministerial responsibility for the decisions of the Board. I am sure the noble Lord will think that right. There will be Ministerial responsibility in the sense that there will have to be a Vote for the money which the Board will have to distribute, and that Vote will be borne, as the White Paper says, by the Home Office Vote and that of the Scottish Home and Health Department.
The noble Lord then asked what was the statutory authority for the expenditure, and he feared lest the Home Secretary might get into difficulties if this scheme were introduced without any statutory authority. I assure your Lordships that that question has been most fully considered. In fact, this scheme can be put into operation, and, if the Vote is passed, the money used for this particular purpose, without a Statute being passed in advance. If this scheme functions—and it may grow as it goes on—then it is perfectly clear that there must be some statutory authority for it; but it is right, I think, to take advantage of the constitutional position with regard to that and to have the scheme experimental at the beginning. Then, when we see the result of a year's work, we can decide to what extent the scope or the operation of the scheme needs to be defined in a Statute, or whether there should not be, in the operation of this, a very considerable amount of flexibility.
The next point the noble Lord made was that he thought that the controversy as to whether this was an ex gratia scheme or one of entitlement was really rather academic. There was a good deal of discussion about this. The noble Earl, Lord Longford, used the word "entitlement", and, I fear, got rather tangled up with that. I think one of the difficulties here is that the noble Earl, Lord Longford—and, I rather suspect, the noble Baroness, Lady Wootton of Abinger—was using the word "entitlement" in a somewhat different sense from that in which I had used it in the course of my opening speech.
1408 I was putting it forward in this way If one considers the position of a litigant a litigant comes to the courts to enforce a legal right, and can sue for it. As I said in my opening speech, I have always rejected the proposal, as the Working Party did, and as this White Paper does, that there should be any obligation or legal liability on the State to pay as if the State was a tortfeasor or wrongdoer. But that, of course, is quite a different thing from saying that you have a statutory scheme making provision for certain payments, and that those who come within that scheme are, under the Statute, entitled to those payments. So you can use the word "entitlement" in two different senses; and I think that that is where, with great respect to him, the noble Earl, Lord Longford, got into a little bit of difficulty. Surely—
§ THE LORD CHANCELLOR
—the main point here is to secure a scheme which gives compensation to the people who want it, to those who we think ought to have it.
Having dealt with those points, which I think were the points that the noble Lord, Lord Silkin, mentioned initially in his speech—
§ THE EARL OF LONGFORD
Before the noble and learned Lord goes on, is that the last word he is going to say on the subject of ex gratia payments? Has he finished on that subject? If he is leaving the question of ex gratia payments, may I ask him why he says that this is to be an extension of the Welfare State, and why ex gratia payments are thought to be particularly necessary here and not in other parts of the Welfare State? Is it merely because this is experimental, or is there some deeper reason?
§ THE LORD CHANCELLOR
My Lords, I think I can only ask the noble Earl to read the speech I made in moving this debate, because I am afraid he did not appreciate the analogy I was drawing. I was not linking it to ex gratia in that particular passage. This should be an ex gratia scheme and not based on the proposition advanced—I do not know whether it was by the noble Earl—that the State should be regarded as a 1409 wrongdoer if anyone sustains an injury at the hands of a criminal.
My Lords, I do not want to keep your Lordships too long; but I have to deal with a large number of points which have been raised and to which I think noble Lords would like me to reply. I should like first of all to make the general observation that this debate has taken very much the course that I personally anticipated. I thought this scheme would be welcomed in all quarters, as it has been, but I thought that welcome would be coupled with the most critical speeches from the Labour Benches—and that has happened. We have had not only one but three Front Bench speakers from the Labour Party, putting forward various criticisms. I am glad that that has happened; but the fact that they thought it necessary to do that rather leads me to suppose that there is perhaps more in their feelings than was expressed by the noble Lord, Lord Gardiner, when he drew attention to the popularity this scheme might have in view of a possible Election; and that leads me to feel that perhaps this scheme is even better than I thought.
The noble Lord, Lord Gardiner, began his speech by welcoming it; he ended by welcoming it. The rest of the time of his speech he spent in damning it. He twice said, as my noble friend Lord Mancroft pointed out, that he was not going to make Party points, and each time he made that remark the following sentence was a political Party point. I take no objection to Party politicians making Party points. They are often made in Parliament; Parliament is the place to make them. That requires no apology from the noble Lord, Lord Gardiner. But anyone who thinks that the noble Lord, who is a distinguished lawyer, is not also a very keen and active Party politician, is making a very great mistake.
He it was who made this reference to the electoral value of the scheme; and I detected some anxiety in his speech about that. Of course, it is a very old tactic, when you are in Opposition and the Party which is the Government brings forward something good which, because you cannot condemn it, you must welcome; then the right course is to devote as much time as possible to criticism, to try to make out that it is not a good 1410 scheme at all. That, with great respect, is what the noble Lord, Lord Gardiner, did.
§ LORD SILKIN
My Lords, is it not the fact that this is what we were invited to do—not merely to say "Hear, hear! Well done!" We were asked to look at it, to comment on it and to criticise.
§ THE LORD CHANCELLOR
My Lords, I do not complain of criticism at certain lengths and I do not complain of any of the criticism the noble Lord, Lord Silkin made. But the debate started on a somewhat different tone. It is on that difference of tone that I am entitled to reply, and I propose to do so if your Lordships will permit me. The main objection was, so the noble Lord, Lord Gardiner, asserted, that this scheme did not attempt to solve the difficulties and that there was no Ministerial responsibility. The Ministerial responsibility is as I have indicated. I simply do not accept his statement that this scheme does not solve the difficulties. He said—and he put this in the forefront—that there would be a necessity to make a list of the crimes to which this scheme would apply. The noble Lord, Lord Airedale, I am sorry to say, was led astray to make the same point. And the noble Lord, Lord Airedale, read out part of paragraph 13 of the White Paper. I am sorry that he did not read out the first two lines which read:Personal injury may arise from a great variety of offences, including crimes against property as well as crimes against the person.Then, in paragraph 14, the White Paper goes on:Thus the Board will entertain applications only in those cases where:(a) there has been an appreciable degree of injury … directly attributable either to a criminal offence involving the use of force or to an attempt by the victim, acting as a member of the public, to apprehend a criminal:I dealt with this—I fear it must have escaped Lord Gardiner's attention—in my opening speech, when I said:If the Board are satisfied that the applicant suffered injury as a direct result of the commission of a crime involving the use of force, then unless he is disentitled to compensation on other grounds, that will suffice.I thought that was quite clear: and I said that, after dealing with the suggestion that there should be a list of crimes. There is, in fact, no need to draw up 1411 a list of crimes if you accept the proposition set out in paragraph 14(a) of this Paper. I agree with the noble Lord, Lord Silkin, who said that he did not think a list of crimes was necessary, and I am sure that is right.
The next point the noble Lord, Lord Gardiner, made—I will deal as shortly as I can with all the points made—was with regard to the wordsor to an attempt by the victim, acting as a member of the public, to apprehend a criminal".The noble Lord first, if my memory is right, suggested that that would not cover the case where the victim was assisting a police constable to apprehend a criminal. If your Lordships will remember, I intervened to point out that that was a very narrow construction of those words and that if the victim was attempting to assist a policeman to apprehend a criminal it really could be said that he was attempting to apprehend a criminal. Then the noble Lord, Lord Gardiner, changed his ground and put the hypothetical case of a man who was arrested by a police constable and was seeking to break away from arrest. Obviously, it would be the intention that that case would be covered. That would be part and parcel of the apprehension. He would not have been securely apprehended if, in that particular process, he was getting away.
It may be that the language could he improved. It is easy to criticise language; but the substance of this was, as I have indicated, the desire to secure—and I made this point—that the person who was the victim, who sustained injuries while attempting to apprehend a criminal, should receive compensation, whether or not he suffered those injuries at the hands of the criminal. The noble and learned Lord, Lord Parker of Waddington, who made a most interesting speech to which I will refer later, raised a point which really was different from that raised by the noble Lord, Lord Gardiner. He asked whether it was necessary to have the provision limited to the arrest of a criminal, or whether it would not do to have a "suspected" criminal.
The difficulty here is this: the legal rights of a member of the public to effect an arrest are pretty clearly defined. 1412 I do not think it will be easy, under a scheme like this, to make provisions to compensate a person who is injured when seeking to arrest someone else when he has no right to arrest someone else. On the other hand, I see the case which the noble Lord, Lord Parker of Waddington, put, of whether one could not, perhaps, expand this to make it clear that the scheme would cover the man who is injured while assisting the police in the arrest either of a criminal or someone who is suspected to be a criminal. That was a different point from the one made by the noble and learned Lord, Lord Gardiner. He criticised the language, but did not make that point. With regard to that, I can only say that I will consult my right honourable friend the Home Secretary.
The noble Lord's next point was what was to be the position if a criminal was insane, and he pointed out that there had to be proof of intent to establish criminal responsibility. That does not arise under this scheme. We are not seeking to ascertain whether or not anyone can be convicted and punished for a crime, but the position of the individual who suffered injury. I do not think that we want to get into any of these legal refinements about whether the accused could be convicted or would escape conviction through lack of proof of what lawyers call mens rea. I think that the Board will want to be satisfied that there has been (using ordinary parlance) a crime involving the use of force and that the person applying for compensation is the victim of it.
Several noble Lords raised the question of the exclusion of the household. I agree that difficult cases can arise with regard to that, but I do not agree with the noble Lord, Lord Silkin, who said that there would be no difficulty if we took the test of the family and not of the household. I think there well might be. I think that, to start the scheme off, we must adhere to that exclusion. For the reasons given in the White Paper, it is one which I think we must maintain. Lord Gardiner asked whether the dependants who could benefit under the scheme were dependants who could bring actions under the Fatal Accidents Act. The answer to that is, Yes.
The noble Lord spoke of the "six infallible lawyers" who are going to 1413 operate the scheme, and a lot has been said about them. I agree with my noble and learned friend Lord Morris of Borth-y-Gest. I do not think for one moment that they would claim any degree of infallibility. When we were considering the details of this, we knew that suggestions would be made that the Board should be differently constituted. One of the problems about this, if we adopt this system of one member dealing with a matter initially and three other members dealing with it on the hearing, will be to keep some degree of uniformity between the two. We want the same type of people dealing with it. I must say, for the reasons given by my noble and learned friend Lord Morris of Borth-y-Gest, that in the initiation of this scheme there is great advantage in confining the original membership of the Board of lawyers. In moving this Motion, I pointed out that more members could be added, if necessary.
The next point I was asked was why an individual member of the Board should not give reasons for his decisions and, coupled with that, why should the Board not sit in public? In the course of my speech I said that I doubted whether it would be an advantage, in the initial stages, for a single member to state what conclusion he had arrived at. As to the hearings being in public, we do not want the assessment of compensation for a victim of violence to be held up because there is a possibility of finding the criminal, charging him and bringing him to justice. And if the hearing were held before the criminal case came on, and it were in public, it might well be said that the publicity of the hearing before the compensation court was prejudicial to the trial. That is one reason why I think we should try, at any rate to start with, to have the hearing in private, although we must very much see how we go in this field. Whilst saying this, I repeat that I think that it would be advisable if the Board were to make a ruling, to be of general application, that they should secure publicity for their work.
To say that this scheme has been rushed through without much thought, as the noble Lord, Lord Gardiner did, just shows, I am afraid, his ignorance of the work that has been done upon it. It has been the result of many hours 1414 of hard work. When I spoke in the debate in December, 1962, I drew attention then to some of the difficulties involved, and those difficulties do not disappear in consequence of just ignoring them. I think that we have here satisfactory safeguards against fraud, with the requirement that the circumstances of an injury have to be reported to the police without delay or have to have been the subject of criminal proceedings in court.
The noble Lord, Lord Airedale, asked, "Who has to report?" I do not think that it matters who reports. But, if there are criminal proceedings, then at least someone thinks that there has been a crime and there is some reason for supposing that there has been a crime, even though the accused is acquitted. And if a person says that he has been the victim of conduct which led to these criminal proceedings, that is a certain kind of safeguard. Of course, there may be cases where there is no prosecution at all. So the second safeguard is there. I think the noble Lord rather misunderstood this. The requirement was not put in in order to say to the victim that he must rush up to the police and report. But the circumstances of the offence must be reported to the police. I think that that is a check we must have to stop claims which are not genuine from being put forward.
§ LORD AIREDALE
My Lords, supposing a victim has severe concussion and remembers nothing about what happened. Nobody else happens to go and report the matter to the police without delay, or indeed at all. Why then should the wretched victim be denied compensation, by failure under paragraph 14(b) of this White Paper, because nobody complained to the police, when nobody was under any obligation to do so?
§ THE LORD CHANCELLOR
My Lords, the noble Lord assumes in this case that the man who has concussion, who does not know how he got concussion and who has no witnesses to say how he got his injury was the victim of a crime of violence. That I do not accept. The noble Lord went on to deal with a case of the motorist. Again he posed his question in a way which produced its own answer. He said that there were a few cases of hit-and-run, 1415 where insurance did not apply, and that this scheme ought to apply in those cases. In the state of our streets to-day, if a human being comes into contact with a motor car it by no means follows that there has been negligence on the part of the driver of the motor car, or that there has been a criminal act by the driver of the motor car; and one cannot assume there has.
The next point that the noble Lord put to me was whether a person who was assisting in the apprehension of a criminal, and in the course of that was run down by a motor car, would be within the scheme, by virtue of paragraph 14, or taken out because he was run down by a motor car, under paragraph 18. I think I can give him the positive answer that if he comes into the scheme under paragraph 14, he does not come out of it again under paragraph 18.
I am most grateful to my noble friend Lord Mancroft for his powerful speech in support of this proposal. I agree with him that it is not easy logically (I think other noble Lords touched on this, too) to draw a line between compensation for victims of crimes of violence and victims of fraud. Many of us who have had experience in the courts know what great hardship can be caused by cruel and heartless frauds and the suffering that is involved. But I think it is the accepted view that in this scheme we should not go beyond compensation for victims of crimes of violence.
The noble Baroness, Lady Wootton of Abinger, regretted that this scheme had not been grafted on to the Industrial Injuries Scheme. I can assure her that we considered this point most carefully. I will not take up time in going through all the arguments, but I will say this to her. I think the arguments were fairly evenly balanced, but the balance came down as the White Paper proposes. The noble Lady then questioned the ceiling for the loss of earnings. Again, one can have different views as to where that ceiling should be, but I think she would agree with me that one must have some ceiling to exclude from the assessment of compensation people who are earning big incomes and are perhaps able to make provision for themselves. We have again given thought to this. We think the ceiling here is about right. 1416 But it is one of the advantages of a flexible scheme that it can be adjusted in the light of experience.
The noble Lady then asked how the scheme is going to work out in practice, if there is an issue as to whether there has been provocation, or something of that sort, on the part of the victim. I think she asked how would one determine the degree of fault, and whether this would not be a pre-hearing for the criminal case; and she said that there would be no way of checking the story that there was no provocation. Before the assessment was reduced on account of there being provocation there would have to be some positive evidence that there was. You may get a case where there was provocation and some responsibility on the part of the victim for the injuries which he suffered, and that not appearing before the Board. But the Board will be able to reduce compensation on this account only if they are satisfied on the evidence that there was some responsibility on the part of the victim for the injuries which he suffered; and then it comes to much the same process as the assessments which are commonly made in the courts in assessing what proportion of liability should fall upon one party or the other, depending on their degree of responsibility.
§ BARONESS WOOTTON OF ABINGER
My Lords, would not the Lord Chancellor agree that great unfairness may be caused? Would he not agree that the parallel with the courts does not help? Because in the courts both parties are always heard, but in this case, in a large number of instances, only one party can be heard, because the other party is not known. Would there not be some unfairness?
§ THE LORD CHANCELLOR
I am afraid I do not agree with the noble Lady. You will not ordinarily have the criminal giving evidence before the Board to say that it is all the fault of the man who is claiming. That, I should think, would have to be established probably in some other way. I hope the noble Lady follows this point. I agree that there may be some cases where there has been some provocation, and it will not appear so to the court, and then the damages will not get reduced. That may be unfair, and it may be 1417 someone's misfortune. Damages can only be reduced when the Board are satisfied on the evidence brought before them of the degree of responsibility. I think, in principle, that is right, because I do not think State money should be used to compensate injuries for which the victim is himself or herself responsible.
I am grateful to the noble and learned Lord, Lord Morris of Borth-y-Gest, for his intervention. That takes me on to the noble Earl, Lord Longford, who always tries to tempt one up to interrupt him, even to the extent of resuming his own seat hoping that one will swallow the bait; and he always hopes to get the last word. But reflecting on this ancient custom—as we were both at school together in the same house—I retained my seat, knowing that on this occasion I should have the last word. I think I have answered the main points he made. I would certainly go so far with him as to say this: I do not want this scheme to be buried away and hidden, so that people do not know of it and do not take advantage of it. That is the last thing one wants to see. At the same time, partly because of the incidence of criminal proceedings, I am somewhat nervous as to the extent to which one can give publicity. But that can be considered. It will not really alter the main operation of the scheme.
The noble Viscount, Lord Massereene and Ferrard, if I may say so with all respect to him, ranged pretty wide in the course of his speech, and at this late hour I will not follow him over all the ground he covered. I would, however, make this point. I think paragraph 8 of the White Paper is absolutely right. I must say that I cannot see (I think this was the noble Viscount's argument) why the State should be under any legal liability for something happening in the privacy of a house.
That brings me to the two points raised by the noble and learned Lord, Lord Parker of Waddington, and they are important points. Although there was great discussion in another place about the phrase "loss of expectation of happiness" in paragraph 22(c), until the noble and learned Lord spoke here it had not been suggested in any quarter that it was not necessary or right to 1418 have that exception. Naturally, the words the noble and learned Lord uses on a matter of this sort carry great weight with me, and I propose to consider what he has said with regard to this with my right honourable friend the Home Secretary, as also what he said with regard to funeral expenses, although there is a death grant which has to be borne in mind when you are dealing here with the expenditure account.
That, I think, covers all the points that have been raised, except two points mentioned by the noble Lord, Lord Silkin. He asked about the re-hearing of a case. I do not regard it as a re-hearing because it will not be before the hearing of a case as we lawyers refer to it in a court, before the single man; it will be a hearing on the evidence which is produced before the three. The noble Lord asked, too, about legal representation. I certainly should like to pay tribute to the useful part in the obtaining and assessment of damages played by both sides of the profession. If I could get his support for the Government's proposal by saying that this would be a closed shop, that would be another matter. But I will not pursue that.
He posed the question, "Have we gone too far in excluding the minor cases?" There, again, I say quite frankly that we had long discussions about this point, and, as usual when you have to draw the line somewhere, there are those who think you have drawn it in the wrong place. We think that initially, at any rate, this was the right place to draw it, and I would not hold out any prospects that we shall think fit, without the experience of the working of this scheme, to make any change. May I in conclusion—because I think I have now dealt with the main points raised—
§ BARONESS WOOTTON OF ABINGER
My Lords, the noble and learned Lord has not dealt with one point of mine, and that is that the ceiling of compensation, as at present to be calculated, would be twice as high for men as for women.
§ THE LORD CHANCELLOR
My Lords, I think that brings in a much 1419 wider question about the remuneration of men and the remuneration of women. It is difficult to find a line that you can draw. The ceiling is to be twice the average of industrial earnings at the time when the injury was sustained. It is not easy to find—as I am sure the noble Lady will agree—a yardstick which is of general application and is right. While I do not want to be drawn at this late hour into an argument as to whether it is the right principle that there should be these differences in remuneration to which the noble Lady drew attention, I think that, to start off, at any rate, it is a pretty good yardstick.
§ LORD SILKIN
My Lords, on that point, would the noble and learned Lord say why he is assuming that everyone who is injured is an industrial worker? There may be professional people involved, or housewives. What would be their position as regards compensation?
§ THE LORD CHANCELLOR
My Lords, the position simply is this: they would not for loss of earnings. This applies only to loss of earnings. For instance, take the figures for February, 1964. The average weekly earnings for men over 21 employed in manufacturing industries in October, 1963, was £17 5s. 9d. Therefore, the rate of loss of earnings which would be taken into account in assessing compensation would not exceed £34 11s. That would be the rate. It is not too low a rate; it may be thought to be lower.
I have dealt as best I can with the points your Lordships have raised. I should like to conclude by thanking your Lordships for the welcome that has been given to this scheme, despite the criticisms, and thank your Lordships for participating in the debate.
On Question, Motion agreed to.