§ 5.57 p.m.
§ Lord Allen of Abbeydale rose to call attention to the need to put the Criminal Injuries Compensation Scheme on a statutory basis; and to move for Papers. The noble Lord said: My Lords, I beg leave to move the Motion standing in my name on the Order Paper. Contrary to what is sometimes said, a good deal of thought has been given in this country to what can be done to help victims of crime as well as to cope with the perpetrators of crime. Our record compares well with what is done in other countries around the world. Whether enough is done is of course a matter for argument. Anyway, it seemed to me that it was perhaps time to invite your Lordships to have a look at the operation of the main instrument of government in this context, the Criminal Injuries Compensation Board, after 19 years of its existence. I should like to 284 thank noble Lords and the right reverend Prelate—who will no doubt be returning—for putting down their names to speak in the debate, and the Chief Whip for giving us such a generous allocation.
§ I begin by going back to 1964. In that year, following initiatives by Margery Fry and the Howard League, the Home Secretary, Mr. Henry Brooke, as he then was, with the Secretary of State for Scotland, announced in a White Paper a scheme for compensating victims of crimes of violence. It explained that the Government thought it right that the sense of responsibility felt by the public for the innocent victim should find practical expression in the provision of compensation on behalf of the community, but as the scheme was breaking new ground—only New Zealand had anything comparable—it would be experimental, and payments would be made ex gratia. A board of part-time lawyers would be set up. The initial decision on an application would be taken by one member, but a dissatisfied applicant could ask for a hearing before three members. Awards would follow the procedures of the civil courts, but with some important modifications. Applications could be made by anyone injured in a crime of violence, or when helping the police to make an arrest.
§ Your Lordships will be glad to know that I can now rapidly skip 15 years and come to 1979. By this time the Pearson Commission had reported. It commended the scheme in general—and I ought to make it clear at the outset that I think that the board has carried out the duties entrusted to it with considerable success—but urged that the scheme should be made statutory. The then Home Secretary, happily now the Leader of this House, said that he accepted this recommendation, but he went on to say that some changes were being made, notably that the scheme was being extended to cover victims of family violence, and so a still further period of experiment was needed.
§ When I spoke in the debate on the Address at the beginning of this Session. I asked about the prospects of legislation. In due course I had a letter from the noble Lord, Lord Elton, saying, in effect, that the Government would introduce a Bill when a suitable niche could be found, but not this Session, and no indication of timing could be given. I mean not the slightest disrespect to the noble Lord, as I am sure he will appreciate, but the formula he used is one that is apt to be used when a department feels over-burdened and sees little attraction in pressing for a place in the legislative programme for something which is carrying on without too much trouble. I know, for I have used the formula often enough myself.
§ Today I am talking about a non-statutory body which records in its 19th annual report just published that it has so far paid out in ex gratia awards rather more than £150 million. Last year its awards came to nearly £30 million and its administrative costs amounted to £3.7 million. During the year it received nearly 30,00 applications. It has a board of about 18 part-time eminent lawyers whose fees are not derisory. Last year most of them received more than £25,000 each. It has a staff of 185 and would like more because delays are piling up. Its own forecast is that the number of applications and the awards paid out will both increase. It looks to me like an open-ended commitment of a kind which I should have thought 285 might not be altogether attractive to the present Government. My first question must be whether the Government have any plans to check this steady increase.
§ There are some other rather odd features about the operation of the board and I should like to pick out three. First, although the board has no statutory basis and there is no entitlement to its awards, ever since 1967 the courts have been prepared to take delivery of applications for prerogative writs against the board. In their judgments, as I read them, they sometimes tend to construe the scheme under which it operates as though it were an Act of Parliament; although it is no more than a working document issued by Ministers and can be altered by them by a stroke of the pen overnight. There are mysteries here which the layman finds rather hard to understand. I hope that my noble and learned friend, Lord Bridge of Harwich—who I was pleased to see in the list of speakers—will be able to enlighten us about them when he speaks later in the debate.
§ Secondly, there are the police. I was not in the Home Office when the scheme started, but I cannot help feeling a shade doubtful whether the founding fathers ever contemplated that the police would go ahead and apply to the board for compensation for injuries received in the course of duty. But last year there were nearly 1,500 cases. One is bound to pause and wonder whether it is entirely appropriate for the board to operate a kind of industrial injuries scheme for the police, rather than that they should be covered by an occupational scheme of their own. I am not suggesting that compensation should he withheld from an injured policeman. I am suggesting that how this is best to be achieved is something which is appropriate for parliamentary scrutiny.
§ Thirdly, there is the provision in the scheme telling the board that, unlike the courts, it must reduce compensation by the full value of any present or future entitlement to social security benefits. Unfortunately, the scheme does not explain how this is to be achieved. Full deduction of social security benefits is entirely in line with what Pearson urged for the courts, but it is a complicated matter and the scheme does not suggest how the board can carry out this policy with any accuracy in the absence of other Pearson reforms. I am sure the board does its best, but this provision in the scheme needs considering again when one realises that it means that the board, when awarding a lump sum, has to deduct something to take account of future periodical payments which, as the years go by, will be increased by amounts which at the time of the award cannot possibly be known.
§ I shall not delay your Lordships by discussing the quite numerous other respects in which the scheme requires the board to depart from the practices of the courts. I shall pick out one or two for mention. There is the restriction on the amount of earnings to be taken into the calculation or the fact that no award can be given unless the amount reaches a certain minimum or the exclusion of the victims of road traffic offences. All these differences from the ordinary practices of the courts may be perfectly sensible, but they ought to be subject to some kind of parliamentary scrutiny.286
§ At this stage I should say that I do not see any need for a long Bill. It would seem right that in view of the changes needed from time to time the details could be left to subordinate instruments. But I see the need for an enabling measure and that pretty soon. If the board were made statutory it would still be for consideration whether anything more needed to be done to look after the victims of crime. But I will pass lightly over any function of the criminal courts in awarding compensation against persons convicted of crime and also over the scope for voluntary help in aiding and advising victims, although I cannot help remarking that the increased grant, which I understand is to be paid to the National Association of Victims Support Schemes, will still come out at rather less than one-half of the award made last year by the board in an individual case.
§ There is one issue to which I must advert before I sit down. It was put to Pearson in evidence that it was not easy to find any social principle to justify selecting one particular group of unfortunates for special treatment. Pearson rejected this argument, but it is one which seems to weigh with the Government in other contexts, such as their rebuttal of suggestions for a "no fault" system for the victims of road accidents or for a new measure of compensation for vaccine damage. I trust that when the noble Baroness replies she will not tell us that the Government have resiled from their earlier position and are now thinking about scrapping the criminal injuries scheme altogether. If she does not, it will be of considerable interest to those of us concerned with these other issues if she can explain how her Government's philosophy enables them to accept in principle the need to make this scheme a permanent feature of the landscape but leads them to reject other proposals for special treatment for equally specially deserving members of the community.
§ Finally and briefly, one or two additional questions. Are the operations of the board open to scrutiny by the ombudsman? Do the staff count against the Home Office manpower ceiling? Is the board subject de facto to the supervision of the Council on Tribunals, as I imagine it would be if it were made statutory? Can an applicant to the board look for legal aid; and, if so, is this a significant feature of the cost? It would seem a bit hard if he cannot when the perpetrators would not have much difficulty in getting legal aid when they appear in court in their turn. Is there any move within the EEC to try to get a common policy in this context? Nearer home, is the noble Baroness content that the Northern Ireland scheme, which oddly enough is statutory, should continue to be run on rather different principles from those of the Great Britain scheme? I am conscious that for a period I had some responsibility for the operation of this scheme but this was quite a long time ago.
§ To sum up, I would say that while I think that the board has met in large measure the expectations of those who set it up, I hope that I have said enough to explain why I think that 19 years is long enough for an experiment and that the time has come to bring the scheme—involving as it does substantial expenditure, the employment of substantial numbers of staff and its own legal code—under the authority and scrutiny of Parliament. I beg to move for Papers.287
§ 6.13 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble Lord, Lord Allen of Abbeydale, for raising this very important subject. He brings to its consideration great experience in the Home Office, his own expertise in the field and, of course, the fact that, as he has indicated although hehas put it with his customary modesty, he was a member of the Royal Commission which was presided over by the late Lord Pearson whose death we lament. I think that it may well be common ground in this debate that the need for a Criminal Injuries Compensation Scheme is undoubted and was undoubted when the scheme was introduced. Its introduction, I think, reflected the public sense of responsibility for and sympathy with the innocent victims of crime, and it was inspired by the feeling that it was right that there should be reasonable provision for victims of crime, as indeed for the victims of accident and disease. It was an appropriate part of the provisions of the welfare state.
Theoretically, the victim of criminal assault or other criminal action causing personal injury to him has a claim in tort against the criminal. But, unhappily, the criminal is very rarely worth powder and shot. Indeed, the Seventh Report of the Criminal Injuries Board found that the number of cases in which offenders would be worth suing was six in nearly 6,000 cases, a proportion of about 0.1 per cent. Therefore, the need for a Criminal Injuries Compensation Scheme was undoubted, and until the scheme was set up most victims of criminal attack received little compensation for personal injuries other than the remedies available through the social security system. Since then we have had not only the scheme itself, the Criminal Injuries Compensation Scheme, but the legislative provisions which now enable the magistrates' courts and the crown courts to award sums of compensation for personal injury.
My noble friend Lord Longford has time and again emphasised that in looking at the picture of crime we have to examine carefully what can be done for the victims of crime; and with that, I think, there will probably be agreement in the House. The question that has been raised by the noble Lord, Lord Allen, is whether the present extraordinary provisions of the scheme should be placed on a statutory basis. I say "extraordinary" because, as the noble Lord has pointed out, here is a scheme whereby there was paid out of the public purse in the last year the sum of £29 million with what can only be described as a minimum of parliamentary supervision. There is an annual report; and I shall be interested in learning the answers to the questions that the noble Lord put towards the end of his speech.
Among them were the questions of whether the board is subject to the possibility of investigation by the ombudsman, the Parliamentary Commissioner for Administration—which was recommended by a working party in I 978—and also whether the board is under the supervision of the Council on Tribunals. I am glad to receive a positive affirmative nod that that is so. Perhaps I can also receive now a nod that it is subject to the work of the ombudsman; but I see a doubtful look upon the face of the noble Baroness in response to that; so that we shall want to press that before the conclusion of our deliberations.
288 It must be said—and there was a modest tribute to the board and its work by the noble Lord at the end of his speech—that a great deal has been achieved by the board and its members. It is interesting that the report of the working party of civil servants in 1978 upon the board was complimentary in many very important aspects. It found, for instance, that the present financial arrangements worked well and that, so far as the awards of the hoard were concerned, they were in line with the levels of damages awarded in the courts for similar injuries; and that the speed with which the board does its work has also been highly commendable—far, far quicker than the processes of taking cases through the courts, as the record of the work done by the board indicates. Last year, for instance, 26,098 cases were resolved, more than half of them within nine months of the application being made. Since the scheme was introduced there have been as many as 263,000-plus applications, of which all but 30,000 were resolved. Therefore, although this is a constitutional anomaly in a great many ways, as is sometimes the case with these institutions that, like Topsy, "just growed", they have worked better than some had feared might be the case.
But now we have the continuing situation that this body, which operates by executive, not legislative, action, has responsibilities in a field of great importance to the subject. As the noble Lord has indicated, it has not been enacted into law. Whether enacting it into law would create new legal rights I am not sure; nor am I sure about the consequence that might have for the work of the courts; and I suppose the giving of new legal rights is not something that we should be too excessively worried about.
The scheme is ex gratia, but not in a real sense at present. In reality denial of a right to sue is somewhat meaningless. In a sense, the board has no discretion to refuse claims except within the terms of the scheme itself. Payment of compensation which it may award is not legally enforceable but in practice, of course, payment follows automatically once the board is determined that payment should be made. So although the scheme is somewhat "naked" in a legal sense, in practice the way it works has not proved to be too unsatisfactory.
Nevertheless, as the noble Lord has indicated, there are aspects of its work which I think call for overall parliamentary supervision through legislation, but we should not expect any great changes to emerge from what is proposed. As, indeed, the noble Lord has indicated, the legislation required ought not to consume too much parliamentary time, because there is a good deal of common ground as to the value of many features of the existing scheme. It is interesting that the working party—and I read its report with interest—in 1978 recommended no change in the type of board administration on the scheme or the method of making appointments to the board or the qualifications of the members of the board. I suppose I may be suspected of merely looking after the interests of lawyers when I remind the House that the working party did comment that this was work essentially to be performed by lawyers with experience in the consideration of damages and personal injuries cases. Therefore the value of what has been achieved in practice in that way should not be overlooked.
289 Nevertheless, in the face of the importance of this provision within our welfare provisions in the community, and in view of the importance of Parliament's maintaining the power to overlook the work of the hoard, I myself would support the view put forward by the noble Lord in introducing the Motion. I think it is not merely constitutional and legal tidiness that calls for it; but in view of its growing importance and, alas, because of the growing prevalence of crime in the community, I think the time has come to legislate, as the noble Lord said.
§ 6.25 p.m.
§ Lord Foot
My Lords, nobody will disagree with what the noble and learned Lord said in opening, that nobody could introduce a Motion of this kind with greater authority and experience than the noble Lord who has done so. He referred to what had been done by Margery Fry, whose work laid the foundation of this report. I do not think he would want it to be forgotten that another contribution was made, and that was a report prepared by a committee of the Society of Justice, which was published in 1962 and which I think it is fair to say was the framework upon which this scheme was based. I am sorry to see that the noble Lord has just left the Chamber for a moment or two, but I wanted to put that on record and to remind the House that the chairman of that committee was the noble Earl, Lord Longford. As long ago as 1962 he had already made himself the champion of victims of violent crime. I take some pleasure in reminding the House of that report from Justice because at the moment, by a curious set of chances, I am temporarily the chairman of the council of Justice, although I played no part whatever in the preparation of the report to which I have referred.
I want tonight to address myself to only two particular matters. In one sense the Motion moved by the noble Lord is of rather a restricted character, because it raises the question simply as to whether it would be desirable and right to put this scheme now upon a statutory basis. I should like to say a word or two about that and then go on to say a word or two about one particular aspect of the scheme and about some changes which were made during the earlier part of this year.
Referring to the noble Lord's arguments for putting this scheme upon a satisfactory basis, I find them overwhelmingly persuasive. I think we have left it far too long before we take that step. I say that for some of the reasons which the noble Lord himself advanced. It was clearly indicated at the beginning when this scheme was embarked upon that it was to be of an experimental character. Ever since then successive Governments have repeatedly said that it was their intention to put it upon a statutory basis. However, 19 years have gone by and that has not been achieved.
During that period there have been a succession of changes, amendments and alterations, and one would have supposed that after 19 years of experience we should be sufficiently competent to ensure that the scheme was all right and good enough to be put upon the statute book. Therefore, I should have thought that the argument for putting it on the statute book and making it statutory was indeed overwhelming. Indeed, 290 as the noble Lord has said, while there has been this controversy and argument in the Pearson Commission about whether it was philosophically right to make special provision for victims of violence as opposed to other people who are in a situation of—"pressure" is not the right word—deprivation, as a result of the 19 years' experience we have had, it is now part of the common thinking in this country that there should be, in any civilised community, some special provision for these people, on the philosophical principle that where somebody suffers from an act of criminal violence, to that extent society has let the injured person down and has failed to give him the protection to which he is entitled. Therefore, I hope that we can get an indication that at an early date the Government will be prepared to move along the lines that the noble Lord has recommended.
Having said that, may I say that I share to some extent the feelings of the noble and learned Lord, Lord Elwyn-Jones, that if this is made statutory we cannot expect any dramatic changes. I say that for two reasons, both of which are matters of congratulation. One of them is that it is pretty evident that, although the board have, as it were, complete discretion and any awards they make are ex gratia, they have over the years behaved as if they were a statutory body. The other matter which I say is one for congratulation is that it has been almost universally recognised that the scheme has worked particularly well.
It is all the more encouraging when one finds, for example, that in a report which was prepared and issued by a compensation working party of the National Association of Victims Support Schemes, when they were considering the provision for compensation for victims under this head by the Cirminal Injuries Compensation Board, they went out of their way to say:Members"—that is, their members throughout the country—generally report that most victims they have dealt with are very satisfied with their awards and greatly reassured by this expression of public concern".That is a fairly remarkable tribute from people who are engaged in this business in the voluntary field, and it is an acknowledgement of the value of the work which is done by the board.
The last point that I want to make about this issue of the statutory basis is this. It may be said—I do not know what the noble Baroness will tell us—that if you were to put this scheme upon a statutory basis you would be introducing an unnecessary element of rigidity, and it would be more difficult to amend the scheme in the light of experience as you went along. If that is an argument that is likely to be advanced, there is one fairly simple answer to it. You could enact this scheme by a very short statute making provision enabling the Home Secretary to promote a scheme by way of statutory instrument. If you did that it would be a very simple matter, if you wanted to make some change, to make the change by means of another statutory instrument.
Perhaps I may now turn to the other matter about which I should like to say a few words, which arises from some changes that were made in the scheme in the earlier part of this year. They are dealt with in the 291 19th report of the board, which recorded, quite rightly, that,On 1st February, 1983, the Home Secretary announced in a Written Reply to a Parliamentary Question that he and the Secretary of State for Scotland had made two changes in the scheme. The first of them was in consequence of the Aministration of Justice Act 1982 and he announced that the introduction of bereavement awards was being made.Previously of course it had not been possible for the board to make any provision by way of bereavement award. But that was introduced in February of this year. The second change which he made was described by the board in this way:Second, to reduce the overall cost of the scheme, whilst allowing for the additional expenditure in connection with bereavement awards, he"—that is, the Home Secretary—said 'We have decided that when an injury is sustained on or after 1st February, 1983, compensation will be payable under the scheme only if the injury is one for which compensation of not less than £400 would be awarded"'.When the scheme was first initiated, a limit was set below which no award could be made, and the original limit was the sum of £50. I well understand, and entirely agree, that you must have some minimum below which it would be impracticable for the board to consider a claim. I think that is right, because if it were not so, and if the board had to consider claims of £5, £10 or £15, they would be overwhelmed and the whole scheme would be likely to break down. So the first minimum limit that was put on awards was £50. Subsequently it was raised to £150, and subsequently again to £250.
The reason given for those additions was simply the fall in the value of money, and they were to maintain the minimum at a real figure. But this change is not in order to keep pace with inflation. It is, as the Home Secretary himself has said, in order to reduce the overall cost of the scheme. What does that mean? It means, first, that in 1982–83 the total number of awards was in the region of 20,000, and of those no less than 6,000 were awards of less than £400. So the claims which are now to be defeated and not allowed were some 28 per cent. of all the awards that were made by the board. Therefore, approximately 6,000 people, who, if they had been the victims of violence before 1st February this year, would have been entitled to make a claim above the limit of £250, will now be deprived of the right to make any claim at all.
The other result that follows from that decision on these two changes is that less money will be paid out to the victims of violence than before. I say that for the reason that some figures were given by The Times newspaper as early as 17th February this year, which must have been shortly after this change was announced. The Times reported to this effect:The Home Office estimates given to The Times show that about £16 million was paid out to the victims who received compensation of less than £400 last year. Estimates"—that is, Home Office estimates—also indicate that about 180 people would have been eligible last year for the new bereavement award, involving a total sum of £630,000".So as a result of these changes, the net amount that is paid out to victims of violence will be less, by decree of the Home Secretary, than it was in the previous year, and for no better reason than that, having 292 decided to make bereavement awards available, the Home Secretary then decided that those awards should be paid for by the people who were no longer entitled to an award of under £400. So one section of the community, the recipients of bereavement awards, are benefiting from this decision, not at the expense of the taxpayer but at the expense of the poor people who are now to be deprived of the benefit which they previously enjoyed. I cannot regard that as a proper step for the Government to take.
In conclusion, the £400 limit is not entirely irrelevant to the subject of the noble Lord's Motion. If this had been a statutory scheme at the beginning of the year and if it had been the wish of the Home Secretary or the Government to make the two changes which they then made in respect of bereavement benefit, and so on, they would have had to lay before Parliament a statutory instrument. There would then have been the opportunity to discuss the matter and debate it both in this House and in another place. If the proposal had come before this House in the form which emerged according to the say-so of the Home Secretary, it is, I suggest, doubtful whether the House would have assented to it. The great advantage which is to be gained, I believe, from making this a statutory matter is that before we can tamper and tinker with the scheme we must obtain the assent of both Houses of Parliament. The House will be very grateful to the noble Lord. Lord Allen of Abbeydale, for raising this matter.
§ 6.42 p.m.
§ Lord Campbell of Alloway
My Lords, I wish to follow in the steps of those noble Lords who have already spoken in the debate and to lend my support from these Benches to what has now truly become an extraordinary situation—extraordinary in the sense in which the noble and learned Lord, Lord Elwyn-Jones, used the term, and used it advisedly.
Why should this scheme be put on a statutory basis? Surely it is because a scheme of quasi ex gratia payments, awarded on a discretionary basis—on the basis of a ministerial document which can be altered within the four walls of the Ministry, without appeal to the courts, and which is not even subject to ministerial review—is not appropriate. As I understand it (I speak, of course, subject to correction by my noble friend the Minister who is to reply) there is no jurisdiction in the council of tribunals; there is no jurisdiction in the ombudsman: there is no review whatever. I am comforted to see that the noble and learned Lord, Lord Hams of Greenwich—I do apologise: Lord Bridge of Harwich, is in his place. From his experience he will be able to confirm, or perhaps refute, my understanding that even a prerogative writ in practice would not lie. Whether or not this be so, the scope for a prerogative writ is small indeed.
In so saying, there is no hint of criticism of any member of the board who is concerned with these awards—quite the reverse. There is no criticism of any particular decision. There is no criticism of the efficient manner of the despatch of business. The criticism is with the system, for the experiment surely has now run its course. As the noble Lord, Lord Allen of Abbeydale, reminded us, the system was introduced in 1964. It was revised in 1969. Under it, a claim is 293 normally decided by one member. If the claimant is dissatisfied, the claim can then be decided by three members—but on an wholly discretionary basis, without review. The hearings are in private. The procedure is informal. In 1982–83, about £30 million was awarded to those who qualified to claim. They included those who suffered injury as a result of crimes of violence, including arson and poisoning; those who sought to arrest offenders; those who sought to prevent the commission of criminal offences; and those who assisted constables.
By and large, the board is obliged to apply the principles of common law, but as there is no regulatory machinery for this type of discretionary justice, there being no review by the courts, the assessment of damage tends to become disparate. The assessment of damage for injuries is one of the most difficult problems with which your Lordships' Appellate Committee has had to deal on more than one occasion. Indeed, there was a case in the High Court today in which a new dimension of damage was afforded.
Furthermore, there are limitations which do not obtain at common law, as the noble Lord, Lord Allen of Abbeydale, observed. The incidence of these limitations lies within the unfettered and unappealable discretion of the members of the board. These limitations warrant stating in a debate, for they are concerned with reporting without delay to the police, with giving the board reasonable assistance and with the conduct, character and way of life of the claimant which may reduce or defeat the claim. And they are subject to Home Office practice. On 20th July there was a House of Commons official report which said that one does not exclude a person with criminal habits. A further limitation is that the loss of earnings is limited to twice the average industrial earnings when the injury was sustained. There is a reduction for pension rights and social security benefits, and there is a reduction for compensation received under the powers of the criminal courts Act of 1973, to which the noble Lord, Lord Foot, has already referred in some detail.
It would, when my noble friend the Minister replies, be of interest to know how many claims have been rejected for delay, how many claims have been rejected for not giving assistance, how many claims have been rejected on the ground of conduct, character or way of life. It would also be of interest to know, in the reply, the statistics of awards for compensation under the Act of 1973 as, for reasons there is not time to develop, this can only apply in a relatively simple case, and the magistrates in any event are limited to £400.
Surely this system of private justice, administered behind closed doors, under which £30 million a year is awarded on a discretionary basis, without appeal, warrants review and a measure of reappraisal, as has been suggested already by all noble Lords who have spoken before me, at least so that justice may not only be done but be seen to be done. Is it not essential that a statutory basis should be introduced so that the courts can ensure that such awards are in conformity with common law and that the limitations which do not apply at common law and to which I have referred should be removed. What is the point of arguing the 294 case for any type of no-fault compensation scheme on the merits, even this one, which is a hybrid no-fault in the sense that there often is fault, and, as the noble and learned Lord, Lord Elwyn-Jones, pointed out, the problem is not fault but want of powder and shot.
The Pearson Report of 1979 lies buried, really and truly, in the dust of oblivion. Her Majesty's Government will not take, cannot take, cannot afford to take a step towards a general comprehensive scheme which embraces all sections of society. Yet any plea to improve or amend any particular scheme, such as vaccine damage, for example, is met by Her Majesty's Government with the reply that it would be wrong to legislate further for any particular section and that a general comprehensive scheme, which we all know will not be introduced, is the only answer. As the noble Lord, Lord Allen of Abbeydale, has pointed out, the position of specially deserving sections of society was expressly reserved in the Pearson Report. The stand of Her Majesty's Government remains equivocal in this matter, so we can but tread this wheel of compassion and justice, and hope. And what is the hope?—that each particular scheme for each section of society may be considered by Her Majesty's Government on its merits with a view to amendment, with a view to improvement, within the financial constraints applicable. It remains to be seen whether those who tread that wheel in this instance labour in vain.
Furthermore, and finally, it is much to be doubted whether my noble friend the Minister would be briefed to deal with the additional costs to the Legal Aid Fund of appeals to the courts, if such, as is suggested, were allowed—another noble Lord who preceded me put that point—and if the restraints under the scheme which do not obtain at common law were to be removed. But if we are concerned with expense and expense alone, which is often the way in which Her Majesty's Government meets a case for reform, then this question is a relevant question. Surely, on any showing, is it not plain that this scheme, set up as an experiment some 19 years ago, has now run its course and warrants review and reappraisal in context with embodiment in statutory form? Indeed, as has been pointed out, this need was recognised as long ago as 1979 and this is the need to which reference is made in this Motion for Papers. May I also be allowed to express my own gratitude to the noble Lord, Lord Allen of Abbeydale, for having introduced this important subject.
§ 6.57 p.m.
The Lord Bishop of Norwich
My Lords, it is a privilege to take part in this debate, which is, I believe, seminal, concerning change in this vital area which touches a good deal of compassionate matters in our nation. And although each of us from these Bishops' Benches speaks alone and personally, except when he is sharing with your Lordships some statement or other which may have received general support in one of the Church's discussion areas, I do know that today I can in one sense represent very many of the right reverend Prelates who are engaged in work in these areas. Because of our own professional hazards all of us Prelates are awash at the moment with carol services in our cathedrals. That is where most of us are 295 who would like to be here engaged in this debate. My programme tomorrow is one in which your Lordships might have been engaged 60 or 70 years ago. The whole cathedral will be full of what used to be called "mixed infants" tomorrow afternoon. When we have got our little "St. Trinians" out, then we get the whole of the Norfolk and Norwich police forces crammed into the cathedral. I hope I can give a word of cheer from your Lordships to those who seek to support law and order in the perilous bypaths of Norfolk and Norwich. Therefore I am encouraged to feel, having spoken to one or two of my brothers, that I speak for others too.
I should like to say a word about legislation, a word about publicity and a word about voluntary help in this matter. Lord Allen of Abbeydale—and we stand in his debt for initiating this most important debate—used the phrase at the beginning "carrying on without too much trouble, therefore let this very good sleeping dog lie, because it is doing very good work". I am putting my gloss on it—though, as the noble Lord, Lord Foot, reminded us, they are now nudging £30 million, which is quite a lot of money. I could think of quite a number of things in my diocese I could do with £30 million. I have 550 mediaeval churches, the largest concentration of mediaeval churches in the whole of christendom, and if I could see some way of having some of that money coming towards … well, that is another issue: but it is a lot of money.
I therefore turn to the question of legislation. The graph on page 5 of the Criminal Injuries Compensation Board Nineteenth Report is, of course, an alarming graph. It is rising sharply right through to this moment and nudging the 30,000 claimants mark, which is anenormous number. It seems to me that the question of legislation touches this rather practical issue. If this work was on a more formal and firm statutory basis it might be that those concerned with the implementation of this work of mercy, which it is, on a national scale would be more powerful in getting hold of facts and would be able not only to implement policy but, as the noble Lord, Lord Foot, reminded us—he made the point of the £400 scheme—bring it before your Lordships' House and the other place before such decisions were made. The noble Lord explained that these issues are very grave and touched not only the personal care of individuals but a large amount of money.
The question of legislation is, therefore, one which I hope the Government will take seriously, and I hope that the noble Baroness will take the general tenor of this debate firmly back to the Minister concerned, because there seems to be very much a consensus feeling that after 19 years action is needed concerning legislation. In that way the board may be not only strengthened and sharpened with statutory power hut controlled and guided by such power and made even more responsible concerning the large sums of money and the large number of applications that it deals with. As the noble and learned Lord, Lord Elwyn-Jones, said, this matter is of growing importance.
So I think it might be possible for us to do what I believe Cicero said at the end of every speech—"Curthaga delende est."which he put in on and on and on—dripping on the 296 stone—in rather the way adopted by my youngest daughter, who your Lordships will know gave birth to her second daughter on Saturday night and all is well, as with my wife, her mother. We used to say to her, "Why do you go on and on and on at your mother, Jane?". And Jane said. "Because if I go on long enough, she does what I say". I leave that touching point with your Lordships because I thought it might appeal to the kindly and motherly heart of the noble Baroness.
I now turn to the question of publicity. Let us search our hearts. Would every one of your Lordships, spread across the Chamber, have read the 19th Report of the Criminal Injuries Compensation Board from cover to cover if it had not been for this debate? I think this business of publicity is important. It is not that any of us has the slightest shadow of doubt concerning the board. It is a magnificent board. Some of its members are personal friends of mine. Most of them seem to he very distinguished lawyers. Until December 1982 the deputy chariman was Sir William Carter, former chairman of the Law Society, one of our most distinguished lawyers in Norfolk and a friend of mine. We know that the board is magnificent and there is no question of showing any disrespect or doubt about it.
But if publicity was on a statutory basis I believe that more people would know about the board's work. I refer to one human instance. It seems to me that the Criminal Injuries Compensation Board cannot help but touch people who are shocked, injured, distressed and disheveled, at the point of violence. Possibly without good publicity the victims simply may not know that this help is open to them. As I say, the question of publicity is one that needs balancing and may even need reappraising.
Thirdly, there is the question of voluntary help. Reference has already been made by the noble Lord, Lord Foot, to those who have been voluntarily engaged in this matter. I am glad that the noble Earl, Lord Longford, is in his place, because he is well known to those of us who are concerned with matters of prisons. He is about to initiate a debate on the parole system. Perhaps it is not quite so well known that he has been, and is, deeply involved in the matter of victims of violence. I shall quote from his book, recently published, in which he talks about the conference concerning victims sponsored by the noble and learned Lord, Lord Denning, at Windsor, which he attended. I pay tribute to his work among victims. He says that the,effort would be impossible without Michael Whitaker, who was the inspiration behind our report in 1978 and my Private Member's Bill in 1979".Your Lordships will remember that that was very much concerned with this area and sought to alert the conscience not just of this House but of the nation to the compassionate care of victims of violence. He speaks of Michael Whitaker, who had so much to do with the victims of violence movement. Michael Whitaker's daughter was brutally murdered some years ago. We were aware of this in our family because I was, in fact, that little girl's godfather.
The noble Earl continues that Michael was,the life and soul of our committee on victims which reported in 1978 and the inspiration behind my Private Member's Bill which got a Second Reading and a Committee Stage in 1979. Michael is 297 now pushing ahead under his own steam in Yorkshire, the best outlet for his articulate passion … But nothing will stop him and in my small way I shall never desert him".The noble Earl speaks of someone who has since died from heart trouble, having given the last years of his life to victims of violence.
I use that story not to wring your Lordships' hearts but to sharpen up the compassionate factor in this debate. We are dealing with human situations and we are seeking to deal with them after 19 years of experiments, roughly speaking, through the Criminal Injuries Compensation Board. The question that appears to underlie this debate is whether from all sides of the House we should press the Government to build upon the good work done in the last 19 years and, in furtherance of this word "compassion"—which the Government have been particularly sensitive to work to and to take on board in recent months—to take another step in the care of individuals, to encourage voluntary work in this area, to widen the publicity which the nation offers and, by seeking to study the question of legislation, to see whether there is more than is already done that can be done for those in these distressed conditions.
§ 7.9 p.m.
§ Lord Bridge of Harwich
My Lords, I enthusiastically welcome the initiative of my noble friend Lord Allen of Abbeydale in introducing this very important debate. I concur in what has been said by him and other noble Lords in support of the general proposition that the Criminal Injuries Compensation Scheme should now be put on a statutory basis without further delay. In particular I agree that all that is required is an enabling Act and the scheme itself can safely be left to delegated legislation.
The aspect of the matter to which I want to draw attention is, if I may borrow a phrase from my noble and learned friend Lord Elwyn-Jones, the really remarkable constitutional anomaly inherent under present arrangements in the relationship between the board, the courts and the executive.
I do not know how far I can respond effectively to the invitation extended by my noble friend Lord Allen of Abbeydale to elucidate the mysteries of the courts' supervisory jurisdiction over the decisions of the board. At least I can disabuse the noble Lord, Lord Campbell of Alloway, not only of the belief that I am Lord Hams of Greenwich, but also of his mistaken belief that there is no such supervisory jurisdiction. It has been exercised by the courts over the board for the past 16 years. Indeed, I can go a step further. I can tell your Lordships how that jurisdiction originated.
In 1966 a policeman was killed and his widow claimed compensation from the board. Her claim was disallowed. She promptly instituted proceedings before the Divisional Court, claiming an order of certiorari on the ground that the board's decision disclosed an error of law on its face. Those are proceedings of a nature which we should now call an application for judicial review. If my noble friend Lord Allen of Alloway wants to check the accuracy of what I am saying, the case was R v. Criminal Injuries Compensation Board ex parte Lian, reported in 1967 2 Queen's Bench, though I cannot tell him the page.
§ Lord Campbell of Alloway
My Lords, the noble and learned Lord, Lord Bridge of Harwich, has got his own back. I am not Lord Allen; I am Lord Campbell.
§ Lord Bridge of Harwich
My Lords, the case of ex parte Lian—that was the widow's name—came before a very strong court: the late Lord Parker of Waddington, Chief Justice, with my noble and learned friend Lord Diplock, then Lord Justice Diplock, on his right, and the late Mr. Justice Ashworth on his left. Junior counsel to the Treasury appeared for the board. He had better remain nameless. He argued vigorously, though I fear incompetently, that since this was a purely administrative scheme, the court could not possibly have jurisdiction to review the board's decision. The court would have none of it. It decided that it clearly had jurisdiction, though it also went on to decide that there was no error of law on the face of the decision; so there was no opportunity to carry the challenge to jurisdiction further, up to the Court of Appeal. All that goes to show that where there is the judicial will, there is a jurisdictional way.
As a matter of strict jurisprudence, I have never been able to understand how a payment described in the scheme as being ex gratia can become enforceable as of right, pursuant to an order of the court, nor how a board interpreting a scheme which consists of a series of administrative instructions can make an error of law, since the instructions do not form any part of the law of the land.
But having said that, if I may say so with respect, I recognise that the judicial ingenuity exercised by the court in Lian's case was exercised in response to a sound judicial instinct, appreciating, as the court did, that decisions of a body such as the compensation board are essentially decisions of a kind which ought to be subject to review in the courts. I believe that that view is now widely shared. At all events, it is the fact that since Lian's case the challenge to jurisdiction has never been renewed, though there have been ample opportunities to do so if anyone had wished. There have been many cases—some successful—which claimants seeking compensation have carried up to the Court of Appeal. I know that successive chairmen of the board, so far from being hostile to the courts' supervisory jurisdiction, have welcomed such guidance as the courts have been able to give them on the many obscurely drafted provisions of the scheme in its various manifestations from time to time.
But all that said, under present arrangements there remains an inherent possibility—and here is the constitutional anomaly—of a conflict between the Judiciary and the Executive. As my noble friend Lord Allen of Abbeydale said, the Secretary of State can amend the scheme at a stroke of the pen. If the court reaches a decision which interprets the scheme in a way which the Secretary of State does not like, he can effectively overrule that decision by amendment of the scheme. No doubt he will in practice tell Parliament he has done so, but he needs no assistance from Parliament to achieve such an amendment. That surely in itself is constitutionally undesirable. In theory the Secretary of State could make a much more drastic amendment of the scheme at a stroke of the pen. If he can amend one provision, he can amend another in just that way.
299 It has always been provided in the scheme, ever since it first appeared in the 1964 White paper—and I shall quote from the current version of the scheme—that,The Board will be entirely responsible for deciding what compensation should be paid in individual cases, and their decisions will not be subject to appeal or to Ministerial review".In theory at least, if the Secretary of State were so minded, he could amend that provision. He could rewrite it to say:The Board will normally be responsible for deciding what compensation should be paid in individual cases, but the Secretary of State may in any particular case reduce or disallow the compensation proposed to be paid",adding for good measure, if one wishes, the words,whether or not the case has been the subject of a decision by any court".That really would be to set the executive cat among the judicial pigeons. I am not suggesting for one moment that the present Government would take such a drastic course, but so long as the scheme remains an administrative scheme, who can say that another Government, egged on perhaps by officials in the Treasury anxious to exercise a tighter and more direct control over the administration of the scheme, might not do so?
Perhaps I may make one further point. So far as I know, neither the Secretary of State, nor anyone on his behalf, has ever invoked the supervisory jurisdiction which the courts exercise, inviting the court to quash a decision made by the board—it may be by a single member—in favour of an applicant. I am not at all sure whether in theory it would be possible to do so, or how the courts would receive such an application. I have a feeling that in practice, so long as the scheme remains purely an administrative one with no legislative basis, that kind of challenge is unlikely to be made. Yet if it is right, as I think and as I hope all your Lordships agree, that the courts should have power to correct errors made by the board—and single members of the board, excellent lawyers as they are, will make errors from time to time—it is just as right in the public interest—perhaps more so—that an award of compensation to which an applicant was not in truth entitled should he susceptible to quashing by the courts, as that an unsuccessful applicant should have the courts come to his assistance. That is something for which a statutory scheme could readily make provision. It could be drafted in such a way that decisions of the board under the scheme were subject to the courts' super advisory jurisdiction by way of judicial review, or it could provide directly—and the effect would be very little different—for an appeal on a point of law only, as very many other analogous statutory schemes have done.
In conclusion, I sincerely urge the noble Baroness to accept on behalf of the Government that it is now high time to legitimise the active and healthy brainchild to which the court gave birth in 1967, taking the opportunity on the way to make the courts' jurisdiction bilateral instead of unilateral, by giving the board a proper legislative framework within which to operate.
§ 7.22 p.m.
§ The Earl of Longford
My Lords, we have all 300 benefited from the highly expert speech of the noble and learned Lord, Lord Bridge of Harwich, which has clarified these matters. I hope that he will take it as a compliment if I say that I shall need to read what he has had to say before I can be quite sure that I have taken it all in. Like the noble and learned Lord, Lord Bridge, and all the speakers, led by my noble and learned leader Lord Elwyn-Jones, and the noble Lord, Lord Foot—who were kind about me—as well as the noble Lord, Lord Campbell, I support the Motion of the noble Lord, Lord Allen.
If I say that I do not do so for what may be the same reason, I do not mean that I am necessarily disagreening with the noble Lord, but there have been two strands of thought in the House today. One was summed up in the phrase to the effect that the present arrangement is a constitutional anomaly. The other, which was put before us by the right reverend Prelate the Bishop of Norwich, was the desire to show more compassion for the victims. That, of course, animated me, as it did that wonderful person, Michael Whitaker, when we made some efforts a number of years ago. We were then animated by the desire as I still am, to see more justice come to the victims. That is a slightly different angle from wondering whether the money is being properly expended. I do not say the implication is that some of it might be wasted but, at any rate, it is a different angle.
As the right reverend Prelate mentioned, in 1979 I brought before this House a Bill which received an unopposed second Reading. It was strongly supportded by, for example, the noble Lord, Lord Mishcon, who had earlier made a fine maiden speech on this very subject. Of course, other noble Lords have shown an immense interest in trying to help victims. The noble Lord, Lord Foot, I know has done a great deal personally and professionally for victims, but I shall not go into those matters now. The Bill which I brought before the House did not receive in all respects the approval of the noble Lord, Lord Allen. Indeed, by some Freudian process he has managed to avoid mentioning it, as though it were a kind of unmentionable activity. At any rate, it was given an unopposed Second Reading in this House. It got through the Committee stage, and it was withdrawn only because at that time the Government seemed to be doing more for victims than they had done in the past.
The noble Lord, Lord Foot, is quite right in saying that my own interest goes back a long way before that. I was chairman of the committee of Justice: I believe that Lord Foot mentioned this, but I am sorry I was not present. In paying tribute to everyone who is involved in this matter, including ourselves, the Howard League, or Dame Margery Fry, I recollect that at that time Justice took a strong initiative.
We all took an interest in these questions for a long time. I am not going to go into this subject in detail, partly because the House will hear me yet again tonight, but I feel that between them the noble Lord, Lord Allen, and the noble and learned Lord, Lord Bridge, have clarified the whole matter. I make no bones about it; whether or not I agree with everything they say I understand it better now than I did before they spoke.
301 It is worth remembering that when the scheme was introduced in 1964 it was always assumed that it would be placed on a statutory basis when the new plans had had time to work. When we debated these matters in 1979, the noble Lord, Lord Belstead, who was then the Home Office Minister answering in this House, appeared to accept the view which the Labour Government had expressed a few months earlier while they were still in office, that there would be legislation after what was called a trial period. So in 1979 it was understood that there would be legislation after a trial period; that was the ministerial attitude. Now four-and-a-half years have passed. Without going into any great detail, I do not think anybody can seriously argue that we must allow more time to pass before we know how the scheme, which has been slightly amended, is working.
I therefore come back to the fairly simple support of the Motion of the noble Lord, Lord Allen. I was following the noble Lord, Lord Foot, very closely and for one moment I waivered in my allegiance to the idea. I thought he was going to say that the last state might be worse than the first, but he ended up on the right side. I feel that that would be an additional reason for putting the scheme on a statutory basis. It would be much more difficult for an ill-intentioned Minister to tamper with the scheme in a sense adverse to the victim, so I am not worried any more; I am encouraged by what the noble Lord told us.
I think that the reasons have been stated. They may have been overstated by the noble Lord, Lord Campbell, but they have been clearly stated by him. I think they are the same reasons as I stated before in 1979. One of the reasons is that there will be a recourse to the courts, which at the present time—how shall I put it after listening to the noble and learned Lord, Lord Bridge?—in the case of an individual victim is a very difficult affair.
I recall that when I was trying to help a few victims I went with a victim as a prisoner's friend before one of the tribunals. There was never any idea that the matter could go to the courts. That was four years ago. It may be that today the options would be slightly more open, but in a great many cases the victim does not have legal advice; that is a matter one could go into on another occasion. In the case to which I refer it was simply assumed that the decision of the tribunal was final. Perhaps the law is a little more open than it then was; but that, I believe, is how it is still widely understood by the victims. A great deal of confidence would be given if it was put on a statutory basis.
I shall close in a moment or two, but I should like to ask whether any noble Lord still has any doubts as to why the scheme should be placed on a statutory basis. What is the reason? What is so special about victims that leaves them without a statutory basis? All the other disadvantaged in our society have statutory schemes of one kind or another, plus voluntary aid to help them. Is there something second class about victims? Do we think that victims, in some mysterious way, are lucky to get anything at all and ought not to complain if they are not on the same footing as others who need help? One must ask oneself why it is. I think that it is an historical accident of inertia. The intention was that it should be put on a statutory basis but no 302 one has ever quite got round to it. The time has come when we should get round to it without further delay.
§ 7.31 p.m.
§ Baroness Lane-Fox
My Lords, like other noble Lords, I am grateful to the noble Lord, Lord Allen of Abbeydale, for this short debate on a subject of such importance in the lives of those hostages to misfortune in this violent age. I intend to pursue only one aspect of compensation in general about which I feel deeply and believe is relevant in dealing with this subject. My views are about assessment of awards. It seems immodest to refer to my own contribution to an earlier debate, but it was in a short debate about a year ago on vaccine damage payments that I spoke of compensation. I said then that it is not the cause of disability but the extent of the resulting disablement and handicap which should govern the calculation of what financial help should be awarded. Such help should be through a national disability income. I should hardly have had the temerity today to repeat this theme if my noble and learned friend the Lord Chancellor had not shown interest and expressed an encouraging measure of approval for it, even referring to it again in answering a Question from the Woolsack on 29th November.
That this is a complex matter is obvious, but it is also very urgent. I am sure that this is evident to noble Lords. There are families and others who care for severely mentally and physically handicapped people who cannot claim more than the basic invalidity pension, attendance allowance, et cetera, while others, no more severely disabled, can obtain much more through industrial injury allowances, and yet others again who receive huge awards from the courts for damages sustained in accidents for which there is no apparent yardstick. Your Lordships have shown understanding of how expensive it is to live when disabled and therefore will not expect me to suggest that these awards are over-generous. But they serve to highlight the paucity of provision for those physically and mentally handicapped cases whose condition requires keepers both night and day. Alas, this can too easily be the result of crimes of violence. What is unchanging is the inability to equate such physical and/or mental disaster in terms of cash.
It seems to me necessary to examine the subject on account of the lack of support for some disabled people in the community who perforce depend on dollops of loyal and sustaining care and effort from family and friends just to get by. The surprising inequality in the finances of one clobbered fellow compared to another surely needs thought. Awards from the board can widen the gap.
Of course, court awards are salubrious in that they add finance to insurance for some disability needs. In these days of closer collaboration between public and private endeavour, would it not be possible to look for bridges between state funding and private insurance provision? In order to discover what exists already to quantify impairment, I studied the table used by the industrial injuries benefits scheme and found it alarmingly couched, mainly in terms of amputations—points gained for loss of a hand or leg and extra for both hands or both legs. That all seems pretty bald, although no doubt in action many refinements are used.
303 Wishing to see tables showing wider measurements of the permutations involved in disability, including neurological and psychological, plus other effects in the countless conditions that prevail, I was much encouraged by the manual published by the World Health Organisation in Geneva in 1980, called International Classification of Impairments, Disabilities and Handicaps, which I feel sure is well known to some noble Lords. It was published for trial purposes in accordance with Resolution WHA 29.35 of the 29th World Health Assembly in May 1976 and it contains a wealth of information. I am told by the Royal Association of Disability and Rehabilitation that it would also be glad to know how soon it can expect this trial stage to be reported upon. The sooner the better, for it seems possible to me that it could form the basis of a categorisation and definition method without which we, who support a more rational method of financial aid for those I am discussing than exists at present, are just whistling in the wind.
Classification and categorisation, it seems to me, should not be irretrievably fixed but under constant review. Then it would be possible to have an invaluable way of providing better social provision, both more economic and more humane. Without categorisation local authority and other lists of cases are too mixed for their number to carry really authentic weight. In order to be prepared for speedy remedy, and if possible action, I consulted an eminent legal practitioner, a Member of your Lordships' House. I am impressed by his suggestion that to set up such a possible way of providing would need a separate division of the High Court presided over by a High Court judge and supported by two distinguished medical men. I believe that the daunting subject under discussion today should be considered in the context of such a scheme.
§ 7.37 p.m.
§ Baroness Trumpington
My Lords, I should like to join with everyone in thanking the noble Lord, Lord Allen of Abbeydale, for providing the opportunity today for this debate. The subject, concerning compensation to the victims of violent crime, is one to which the public and the Government attach considerable importance, and to which the noble Lord brings special knowledge and expertise. We have heard some fascinating speeches. I hope that they will not be insulted if I say that the right reverend Prelate the Bishop of Norwich made me feel quite broody and nostalgic when he spoke of mixed infants. On the other hand, the noble and learned Lord, Lord Bridge of Harwich, made me feel like an unmarried mother when he begged me to legitimise the scheme. I am happy to say that, in many respects, we are all in agreement.
In the Government's view, the main argument for placing the scheme on a statutory footing is to provide explicit statutory authority for the existence and operations of the Criminal Injuries Compensation Board, in view of the considerable amount of public money for which the board is responsible. In 1982–83 it paid out nearly £29.5 million in compensation and incurred administration costs, already spoken of, 304 amounting to nearly £3.75 million. It is right that Parliament should have the opportunity to consider in detail and approve in formal legislation the general composition, functions and procedures of a board in which is placed such trust and responsibility. It was good to hear the noble Lord, Lord Foot, praising the noble Earl, Lord Longford, for his pioneering activities in the early days—pioneering activities which, with his efforts and those of others, resulted in the introduction of the Criminal Injuries Compensation Scheme in 1964, after several years of public debate, with the aim of ensuring that the innocent victims of criminal violence were able to receive appropriate compensation from public funds. We have come a long way since then.
The noble Lord, Lord Allen of Abbeydale, said that this was a novel scheme at the beginning involving newly devised and untested quasi-judicial and administrative procedures. It was entirely appropriate and sensible that initially it should be in a form that could be amended or modified quickly and easily, if necessary, should its provisions in practice be found wanting or in need of refinement. A statutory format would not of course have afforded as much flexibility. Indeed, time and practice have led to various changes in the scheme about which your Lordships know. The most extensive changes were made in 1979 when the scheme was revised following recommendations of an interdepartmental working party which reported the previous year. Generally speaking, the working party found a high degree of satisfaction with the scheme.
The revised scheme accordingly did not alter the main judicial and administrative procedures of the board which had proved their effectiveness over the past years. It contained however a number of changes aimed at improving the efficiency of the board's operations, such as the introduction of time limits for initial applications and for applications for hearings. The most significant changes however were those which widened the scope of the scheme for the benefit of certain categories of applicant. The hoard were given discretion to re-open cases in certain circumstances and to pay compensation in cases of violence within the family, the latter being experimental, subject to certain special conditions.
Most recently, as your Lordships know, a number of the recommendations of the Pearson Commission regarding compensation for personal injury or death were implemented in the Administration of Justice Act 1982 and the relevant changes in the civil law came into effect for the most part on 1st January 1983. These changes were adopted automatically for the most part in the operation of the Criminal Injuries Compensation Scheme.
When announcing the revised scheme in July 1979 the Home Secretary at that time, my noble friend Lord Whitelaw, confirmed the Government's acceptance of the recommendations concerning the Criminal Injuries Compensation Scheme which had been made in 1978 by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission). These were that the scheme should be put on a statutory basis, that compensation under the scheme should continue to be based on tort damages and that consideration should be given to applying to the scheme the commission's recommendations for 305 changes in the assessment of tort damages. He added however that the Government did not intend to introduce legislation to make the scheme statutory until there had been sufficient experience of the revised scheme to enable any problems to be identified and solved.
I should perhaps stress however that the absence of statutory cover hitherto has in no way affected the ability of the victims of violent crime to benefit from the scheme. Legislation would formalise and put on a statutory footing the arrangements that have been developed since 1964, but this would not make much difference in practice to the victims concerned. We must not forget that. The scheme is administered by an independent board of very experienced barristers and eminent solicitors with vast experience in the assessment of damages in the civil courts. Their duty is to consider applications and award compensation in accordance with the terms of the scheme and the practice of the civil courts in assessing damages for personal injury and death. The board reach their decisions and award compensation on their own authority and their decisions are not subject to Ministerial review. The Home Secretary and the Secretary of State for Scotland have responsibility for general oversight of the scheme and of the board's operations, but they play no part in the resolution of individual applications. The board's functions under the terms of the scheme require them to award appropriate compensation to all who are eligible under the provisions of the scheme. In practice therefore a right to compensation already exists, as compensation cannot be refused by the board outside the terms of the scheme, and no victim or dependant suffers any disadvantage through lack of formal statutory recognition of this right.
At this point I should like to pay tribute to the members and staff of the Criminal Injuries Compensation Board. The processing of some 30,000 applications a year is a formidable undertaking. The generally high level of satisfaction with the operation of the scheme is entirely due to the thoroughness and fairness with which applications have been dealt. Both staff and board members have approached the ever-increasing workload with a high degree of professionalism and with commendable dedication.
I turn to a number of matters which have been referred to in the course of today's debate. My noble friend Lord Campbell of Alloway has been good enough to suggest that I may reply by letter to some of the points he made. If I fail to answer the comments made by any other noble Lords, I hope that they will let me know so that I can make good my omissions in the same way. For example, my noble friend Lord Campbell of Alloway referred to some statistics. I am afraid that I do not have those statistics at my fingertips, but I believe that most of them are to be found in the board's annual report.
I shall go through the points raised as I have noted them. The noble Lord, Lord Allen of Abbeydale, my noble friend Lord Campbell of Alloway and my noble friend Lady Lane-Fox raised the question of the deduction of social security benefits, occupational pensions, et cetera. Reference has been made to the deductions which the Criminal Injuries Compensation Board are required to make from compensation 306 awards. First, there are the circumstances where the victim has received compensation from the person responsible for his injuries through action in the civil courts, or an out of court settlement, or as a result of a compensation order made by a criminal court. I imagine that no one would dispute that it is right that the hoard should take account of such payments. The scheme exists, after all, because it is not often possible for the victim to obtain full compensation from those responsible in view of their lack of means. Where however those responsible have the means to pay all or part of the appropriate compensation, it is clearly proper that they should do so and that only the balance due should be payable from public funds.
Similarly, as regards social security benefits, where general rights exist to payments from public funds as a result of injuries incurred—such as sickness, disability and other social security benefits—it is proper that the board should take these into account. Duplication of payments from public funds cannot be justified. In this respect it is entirely appropriate that the scheme should depart from the practice of the civil courts.
The civil law provides that in assessing damages for injury there should be deducted only half the amount of any sickness, injury or disability benefit received in respect of the injury during the first five years after the injury. In the assessment of damages in fatal cases, the civil law provides that social security benefits, payable as a result of the death, will not be taken into account. The state cannot be expected to provide compensation according to the full civil liability of the offender, especially where this would involve duplication of payment from more than one source of public funds in respect of the same injury.
The Government do not propose therefore to alter in legislation on the scheme the present requirement that the full value of social security benefits should be taken into account by the board in the assessment of compensation. In the case of occupational pensions, the practice of the civil courts is to ignore these in assessing the civil liability of the defendant on the grounds that he should not benefit from any prudence, foresight or contractual arrangement on the part of the victim. The Government agree with the views of the working party which reviewed the scheme that there is a strong case for restoring the purchasing power of the applicant, but little justification for going further.
The approach of the civil courts is related to the liability of the wrongdoer and is not appropriate to a Government compensation scheme which seeks only to restore the victim's or, in fatal cases, his dependants financial loss. It is of course appropriate to take account of the income tax liability and pension contributions, where appropriate. The Government consider that the scheme does this in a fair way at present by providing for deduction of only one half of the amount of pensions which are taxable.
The noble and learned Lord, Lord Bridge of Harwich, the noble Lord, Lord Allen of Abbeydale, and my noble friend Lord Campbell referred to the right of appeal. The Government are well aware of the feeling that there should be a right of appeal to the courts against a decision of the Criminal Injuries Compensation Board. To some extent the absence of a formal channel of appeal under the scheme has been 307 catered for in England and Wales by the decision of the Queen's Bench Division of the High Court in 1967, that that court had jurisdiction by way of prerogative orders to review and quash a decision of the board where an error of law had occurred. However, this procedure for judicial review is not available in Scotland.
The interdepartmental working party, whose report and review of the scheme led to its revision in 1979, recommended that when the scheme was made statutory, provision should be made for a formal avenue of appeal to the High Court in England and Wales and to the Court of Session in Scotland on points of law only. The Government propose seriously to examine this recommendation when the time comes to prepare the relevant legislation. With regard to vaccine damage, this scheme is confined to compensation for criminal injury and, as the noble Lord, Lord Allen of Abbeydale, said, was introduced as an expression of public sympathy and feeling of responsibility for victims of crimes of violence, not as an acceptance of state liability. I have just received a note—which has appeared out of a clear bluesky!—about vaccine damage. I fully sympathise with all that the noble Baroness said about vaccine damage; but I regret that I can say no more than that I shall bring her remarks to the attention of my right honourable friend. I have no detailed information about the question of vaccine damage, but I assume that the pressures have not been as strong.
The noble Lord, Lord Allen of Abbeydale, asked a question about Northern Ireland. The situation in Northern Ireland is quite exceptional and calls for the special provisions which exist in the Northern Ireland statutory arrangements. These statutory arrangements arise as a result of the history of the Province where state compensation has been necessary in this and other fields for many years. The police are on the same footing as the general public and the Government see no reason why they should not be.
I turn to supervision by the Council on Tribunals. The Government accept the recommendation of the working party which reviewed the scheme that the judicial processes of the board should come under the supervision of the Council on Tribunals. This will be pursued with the council in the course of preparing the legislation to place the scheme on a statutory footing.
§ Lord Allen of Abbeydale
My Lords, does that mean that it is not currently de facto subject to the council?
§ Baroness Trumpington
My Lords, I take it that currently it is not, but that it will be. A question was raised about the ombudsman. In its review of the scheme, the working party recommended that allegations of maladministration on the part of the board's staff should be capable of examination by the Parliamentary Commissioner for Administration. Unfortunately the working party overlooked the fact that the Parliamentary Commissioner's remit does not extend to non-Crown bodies, such as the board. Therefore, it would not be appropriate to act on this recommendation until such time as the PCA's remit may be extended to such bodies.
I should like to have dealt with the question of publicity, and I appreciate the anxieties of the right 308 reverend Prelate on this score. I should be very happy to give him this copy of this leaflet, which is simply written and which is available in all those places where people are most likely to go. I do not think that by making the scheme statutory it would help people in any way to learn more about where they could obtain help. All the relevant bodies know and they all have these leaflets.
In a short debate I do not think that I can deal with any more questions. I hope that I have picked up the main points and, as I have said, I shall certainly write to noble Lords. I conclude by repeating that it is the Government's intention to introduce this legislation. It is important that any such legislation should take into account our most recent experience in the operation of the scheme and, in the light of other demands on parliamentary time, time would be needed to prepare legislation. It is also very important that the legislation should afford the utmost flexibility consistent with parliamentary accountability to enable amendments to the scheme to be made quickly in response to relevant developments; for example, in relation to the practice of the civil courts. The House will understand that I cannot give a commitment to legislation in any particular Session but—and I would be most grateful if the Front Bench opposite would listen because this is a tiny message of hope—it is the hope of my right honourable friend the Home Secretary that provisions putting the scheme on a statutory basis can be included in a Bill in the course of the present Parliament.
The Government are most grateful for the helpful advice and guidance of noble Lords and the noble Baroness who have taken part in this debate. The views expressed in your Lordships' House today will of course be fully taken into account when the Government introduce legislation to place the scheme on a statutory footing. I am sure that your Lordships will agree that it is most important to ensure that when the Bill comes before Parliament it is right. A little more time with this aim in view is surely worthwhile—and those words were not written by any Minister!
§ 7.58 p.m.
§ Lord Allen of Abbeydale
My Lords. I have a little time but I do not propose to exhaust it. I should just like to thank the noble Lords, the noble Baroness and the right reverend Prelate, for the contributions that they have made to what I thought was an extremely interesting debate. I was comforted by the support for urgent action which seemed to be felt on all sides of the House, irrespective of party lines. I do not have time to comment on individual contributions—it would not be appropriate for me to do so—but I should like to say how illuminating I found the examples given by the noble Lord, Lord Foot, and by my noble and learned friend Lord Bridge of Harwich, in what I think we should all agree was an authoritative and fascinating speech, showing why urgent legislation is desirable.
As I think the noble Lord, Lord Foot, knows, the enthusiasm of the National Association of Victims Support Schemes for the working of the scheme as it has been in the past, is a little tempered by their disappointment about the raising of the limit to £400. I am bound to say that until the last moment I found 309 the reply of the noble Baroness somewhat disappointing. I am afraid that she just did not begin to answer the point that I raised—perhaps I did not make it clear—about the problems of deducting the whole of future social security awards. What happens if, five years after the board has made a lump sum award, the individual has to become subject to a constant attendance allowance? I know that this is not an area in which the Home Office claim any expertise—I certainly did not when I was there—and I hope that the noble Baroness's advisers may be encouraged to consult some of those who know more about it.
§ Baroness Trumpington
My Lords, if I may interrupt the noble Lord, I did the best I could with the question about social security benefits and pensions and I promised that I would write. If any noble Lord would like a copy of the letter that I shall write to the noble Lord, I shall be glad to send him one.
§ Lord Allen of Abbeydale
My Lords, I thank the noble Baroness very much. I also hope that we shall receive a letter, or perhaps a Question can be arranged, on the very important point made by the noble and learned Lord about the possibility of there being some procedure for quashing an excessive award by a single member or by the three members of the board. I do not want to detain your Lordships any further. May I just say to the noble Earl, Lord Longford, that I did not mention his earlier Bill because what I was concerned about was legislation legitimising the board. Whatever other merits his Bill had, it did not do that.
§ The Earl of Longford
My Lords, may I interrupt the noble Lord? It would have put it on a statutory basis; there is no doubt about that. The noble Lord misunderstood it at the time, as a matter of fact.
§ Lord Allen of Abbeydale
My Lords, it would have put something on a statutory basis but, as I read it, it was not the board. However, the record is there. I would certainly be the first to pay tribute to the work which the noble Earl has done over the years in this context. I am sorry that in the time at my disposal I did not have the opportunity of going into more detail about the origins of this whole idea, in which I know that the noble Earl played a prominent part.
I shall not say any more, except to conclude that there is general agreement that the board has done the best it can. However, there is also general agreement on the really narrow point raised in this Motion that the time has come to legislate. After 19 years—19 years in which the statute book has been littered with legislation about the perpetrators of crime from various aspects—the time surely has come to find a place for just a teeny-weeny little Bill about the victims. I hope the words that fell from the lips of the noble Baroness at the end mean that we shall not have to wait too long. I beg leave to withdraw the Motion in my name.
§ Motion for Papers, by leave, withdrawn.