HL Deb 22 July 1988 vol 499 cc1686-8

319A Line 8, after ("pursuer") insert ("exemplary or").

Lord Irvine of Lairg

My Lords, I move the amendment in the place of my noble friend Lord Morton of Shuna who, I can assure noble Lords opposite, is not victualling himself elsewhere on the premises but is I hope on a train to Scotland, which appears to be a sensible direction in which to be travelling at this time on a Friday afternoon.

Before Amendment No. 319, the Bill provided that compensation should not include exemplary or aggravated damages. The purpose of my noble friend's amendment is to call attention to the fact that in Amendment No. 319, perhaps by a slip, the reference to "exemplary" has fallen away. Before the amendment, paragraph 6(4) of Schedule 7 provided that: Compensation … shall not include any element … corresponding to exemplary or aggravated damages". "Exemplary" was correctly in paragraph 6(4) of Schedule 7, but Amendment No. 319, we rather think by a slip, excludes only aggravated damages.

Aggravated damages are the extra compensation which is payable to a plaintiff for injury to his feelings and dignity and are truly compensatory; but exemplary damages are different. One of the circumstances in which the right to exemplary damages may remain is where there has been oppressive action by a government servant. This House in its judical capacity in Broome v. Cassell held that the concept of a government servant included the police. I should have thought it would have extended to prison officers as well.

Your Lordships should know that the present scheme as operated by the Criminal Injuries Compensation Board excludes both exemplary and aggravated damages, and that was the original intention of the Bill. The fear of my noble friend Lord Morton of Shuna is that if this amendment is not accepted in cases which come before the board—for example of assaults by the police or prison officers—exemplary damages will be claimed. The argument would be that under the previous scheme exemplary damages were expressly excluded. Parliament, by putting in only the word "aggravated" has addressed the question but has implicitly admitted that claims for exemplary damages may be made. Therefore I beg to move this amendment.

Earl Ferrers

My Lords, the noble Lord wondered whether the word "exemplary" had fallen away by a slip. I can assure him that it did not fall away by a slip. After the amendment had been put down we went to considerable trouble to ensure that the position was correct.

Under paragraph 6(4) of Schedule 7 of the Bill compensation payable by the board expressly excluded exemplary or aggravated damages. That reflected the position which prevailed under the present non-statutory scheme. As we accept that aggravated damages are compensation, they are therefore specifically excluded in Amendment No. 319 from the assessment of compensation under the new statutory scheme. Exemplary damages are not compensation. Now that the heads under which the board may pay compensation are clearly set out in Clause 106 as a result of Amendment No. 163, we do not consider that exemplary damages need specifically to be excluded. They are not compensation, therefore they do not fall to be paid under the provisions of the Bill.

Lord Irvine of Lairg

My Lords, it may be that the noble Earl is right. It appears to me however that the first thought was right and it would be a safer and surer course to follow to make it express that exemplary damages are excluded. But in the circumstances I do not press the amendment. I beg leave to withdraw it.

Amendment to Commons amendment, by leave, withdrawn.

On Question, Commons Amendment No. 319 agreed to.