§ 8.43 p.m.
§ Lord Ackner rose to ask Her Majesty's Government whether their plans (contained in the White Paper Compensating victims of violent crime, Cm.2434) to 1072 replace common law and statutory principles of compensation by a tariff system will give effect to the intention of Parliament expressed in the Criminal Justice Act 1988 and will ensure that all victims receive no less favourable compensation than at present.
§ The noble and learned Lord said: My Lords, for almost the past 30 years, successive governments have acted with reasonable generosity towards victims of violent crime by providing them with a scheme operated by the Criminal Injuries Compensation Board with compensation based on what the victim would have received if he or she had successfully sued the criminal in the civil courts. That has been known as the common law basis for damages for personal injuries.
On Good Friday, the Government intend to repudiate their obligation contained in the Criminal Justice Act 1988 to put the scheme on a statutory basis and, without first obtaining any parliamentary approval, to replace it with an entirely different non-statutory scheme—a tariff scheme providing merely what is described as,
a tangible recognition of society's sympathy and concern".
I wish to make three submissions to your Lordships. The first is that the Government, in asserting that their new scheme will,
provide a better service to victims", are guilty of hypocrisy. This is a cost-cutting exercise.
My second submission is that the proposed scheme is grossly unfair since those who suffer the more serious injuries and the more substantial losses—that is, the most vulnerable—will receive but a fraction of the compensation which is now provided. Thirdly and lastly, I submit that the Government's proposed action is an abuse of power.
Before addressing your Lordships further, perhaps I may say how delighted I am that my noble and learned and old friend Lord Nolan is choosing this Unstarred Question as an opportunity to make his maiden speech. I have known him all his professional life. Our chambers were on the same staircase in Pump Court. We are members of the same Inn, the Middle Temple, and I know that, having had an outstanding judicial career, he will be able to bring wisdom to your Lordships' House on all matters, including in this case on the assessment of damages for personal injuries as provided in the civil courts.
There are certain factors in the history of this matter which I think that it would be convenient if I referred to, taking them as quickly as I can. I believe that they are relevant. In March 1964, the Government, having considered the report of a working party set up by the Home Secretary in 1961, set out in a White Paper, Cmnd.2323, the arrangements which they proposed to make for compensating the victims of crimes of violence. Compensation was to be administered by a board and, subject to three exceptions, assessed on the basis of common law damages. Perhaps the most important exception was that the rate of loss of earnings was not to exceed twice—I believe that it is now one-and-a-half times—the average of industrial earnings at the time that the injury was sustained. In the case of fatal injury, any compensation awarded to the spouse or dependants would be assessed on the same principles as a claim under the fatal accidents Acts, except that the 1073 total income of the deceased to be taken into account would be subject to the limitation to which I have just referred.
I wish to stress what I think is an important point. Since there was virtually no previous experience on which to draw in assessing how a compensation scheme would work in practice, the White Paper proposed that it would be an experimental and non-statutory scheme, the compensation being paid ex gratia.
The next stage was that on 24th June 1964 in your Lordships' House it was announced that a board, to be called the Criminal Injuries Compensation Board, would be set up. The scheme in the White Paper, with certain amendments, would be put into force and the first applications would be dealt with on and after 1st August 1964.
Things proceeded smoothly for some 15 years with annual reports being made by the board, until the Royal Commission on Civil Liability and Compensation for Personal Injury, the Pearson Commission, reported in 1979. It had considered and commended the scheme, but recommended that it should be put on a statutory basis.
In paragraph 1: 589 of its report it drew attention to the fact that similar schemes, usually statutory, had been set up in New Zealand, the Federal Republic of Germany, Netherlands, Sweden, Australia, most of the provinces of Canada and several states of the USA. It observed that the Council of Europe had recently adopted a resolution inviting its members to make special provision for criminal injury compensation.
In July 1979, a few months later, the Home Secretary confirmed the Government's acceptance of the recommendation of the Pearson Commission that the scheme should be put on a statutory basis and that compensation under the scheme should continue to be based on common law damages.
In December 1983 in a debate initiated by my noble friend Lord Allen of Abbeydale who, among his many other distinction;, was a member of the Pearson Commission, attention was called to the need to put the scheme on a statutory basis, it having by then operated on an ex gratia basis for some 19 years. At the end of the debate the Government confirmed what they had already confirmed: it was their intention to do exactly that
In July 1987 the Second Reading of the Criminal Justice Bill, which became the Criminal Justice Act 1988, took place in your Lordships' House. The Bill contained inter alia clauses implementing the undertaking of the Government given some four years previously to make the scheme statutory. Detailed provisions concerning the scheme are to be found in Sections 108 to 117, Schedule 6 and Schedule 7. Section 171 places a statutory obligation upon the Home Secretary to bring the relevant sections into force.
In 1989, because of the unprecedented rise in applications and the very sizeable backlog of cases with consequent delays to all claims, it was decided that to make the scheme statutory at that date would disrupt the work and add to arrears. It was therefore agreed not yet to make the scheme statutory but to streamline it in certain respects.
I now turn to the proposed tariff scheme. On 23rd November 1992 the then Home Secretary, Mr. Kenneth Clarke, announcing the scheme, said that it offered,
the best prospect of providing quicker payments to claimants through a means that is fair, straightforward and understandable".
In December 1993 the Government presented their White Paper, Cm.2434, setting out plans in more detail. The opening paragraph stated:
The aim would be to provide a better service to victims".
Perhaps I may now refer to the unfairness of the scheme. As recently as Tuesday of last week my noble and learned friend the Lord Chancellor, when answering a Starred Question, raised by the noble Lord, Lord Gisborough, relative to the high quanturn of damages awarded to litigants in the civil actions, agreed with me that by far the major part of such awards reflected loss of income, loss of pension, medical treatment and often the large expenses involved in making the establishment in which the injured person lives capable of being used properly by him.
The accuracy of the propositions which I put to the Lord Chancellor and of his confirmatory answers is well borne out by a recent case in which the board awarded a man in his mid-40s, who was paralysed from the neck down, £ 1,153,000. Of that figure, £ 72,000 was attributable to future loss of earnings, that is, £ 6,000 per year over a 12-year period; future medical and care costs of £ 726,000 over 15 years; and special damages for the adaptation of the house, special needs and transport of £ 255,000. Under the Government's tariff none of those heads of loss would be payable since compensation will no longer be assessed on the basis of common law damages. Accordingly, there will be no separate payments for loss of earnings or medical expenses or any other special damage.
As the Government have conceded, the new scheme is not intended to provide compensation to reflect a particular victim's losses. The effects on the particular individual of his injuries are irrelevant. All victims would be lumped together and would receive a payment based solely on the category of injury without regard to the age or sex of the victim. Victims will either receive too much or too little, and those who lose out most are the most vulnerable, that is to say, those whose injuries and loss are the greatest. They fall into the following three categories: first, those who have suffered the most severe injuries; secondly, those whose injuries have resulted in significant impairment of earning capacity and loss of employment; and thirdly, families of victims of murder and manslaughter. As I shall seek to show by reference to a very few decided cases, all the above categories will receive but a fraction of what is currently being paid.
I have given my noble and learned friend Lord Fraser of Carmyllie a lengthy list of recently reported cases. In the time available I shall refer to a few only. I choose first from the list which I provided one of the cases of paraplegia—Tansley—decided in January 1992. His loss of past earnings was £ 30,852; loss of future earnings over £ 97,000; past care £ 35,000:, and future care £ 250,000. The total award, involving the special damages referred to, was £ 689,000. Under the new scheme he would get £ 175,000.
1075 I now refer to one of the cases of brain injury, the case of Burleigh, decided in September 1992, a case in which the victim required continuous care day and night, the strain of which proved too much for his wife, with the result that they separated. The total award was over £ 510,000 of which future care accounted for £ 234,000. Under the new scheme he would receive £ 40,000 which in no way recognises the need for care of the victim, even if provided for by relatives, nor the effect on the family, particularly in cases such as this of marriage breakdown.
I now refer to my second category of cases where the injury, although not of the greatest severity, significantly impairs the earning capacity and involves loss of employment. The first case, Holton, decided in April 1993, concerned a female psychiatric nursing sister aged 35 whose arm was badly injured. She was assessed as unfit for any work. She received a total of over £ 126,000 of which only £ 17,720 was attributable to general damages for pain, suffering and loss of amenity. Under the new scheme she would have been awarded £ 5,000 which would account on its own for only three months loss of earnings.
Burrows, decided in March 1933, involved a wrist injury which did not unite properly leaving the applicant with a continuing disability in her dominant right hand. She received a total award of £ 55,000. Under the new scheme she would receive £ 3,000. The award for the injury alone under the old scheme was more than three times the total award under the new scheme.
Stonier, decided in March 1993, involved a back injury to a male police officer aged 34. He received for future loss of earnings over £ 61,000, that is, a little over £ 8,000 per annum times seven. Together with other items of special damage, his total award was £ 121,000. Under the new scheme he would receive £ 7,500.
Lastly, under this heading, Parslow, decided in September 1992, involved a knee injury. At the date of the hearing he was in receipt of a disablement pension following assessment of 30 per cent. disability. He had no prospect of obtaining employment in the future. As he was aged 37, the board applied a multiplier of 11 for future loss of earnings, and his total award, including £ 46,000 for future loss of earnings, amounted to over £ 74,000. Under the current scheme he would receive £ 5,000.
I turn to my third and last category—the families of victims of murder and manslaughter. Under the provisions of the fatal accident Acts, as your Lordships probably know, dependency awards to a wife or dependant children are based largely on an assessment of the amount of financial support provided by the deceased and for how long it would have lasted. Future loss of earnings feature prominently in such calculations. I shall refer to one case, details of which I have provided to my noble and learned friend.
Slater, decided in June 1993, involved a female aged 38 at the time of the hearing who witnessed her husband dying, following a stabbing at the front door of their home. She was married with two young children aged six and four. She suffered the deepest distress as a result of that traumatic experience. She received general 1076 damages of £ 17,500 but, in addition, received nearly £ 120,000 for the loss of dependency, making a total award of over £ 137,000. Under the new scheme, she will receive £ 10,000 by reason of the death of her husband and £ 7,500 for her condition, making a total of £ 17,500 plus funeral expenses.
Those cases illustrate that innocent families of manslaughter and murder victims, whose financial security was previously provided by dependency awards, receive nothing for the future. There are a number of anomalies and oddities about the figures and scales provided but I do not propose to refer to them in view of the time factor.
The Government are proposing to act in defiance of the will of Parliament as expressed in the Criminal Justice Act 1988. Paragraph 38 of the White Paper states:
Provision was made in the Criminal Justice Act 1988 for the scheme to be placed on a statutory footing … With the impending demise of the current scheme the provisions in the 1988 Act will not now be implemented. They will accordingly be repealed when a suitable legislative opportunity occurs".
As your Lordships know, I am a child in these matters but I find it difficult to imagine a more arrogant refusal by a Minister to carry out his statutory duty. I await with interest the first of the set of proceedings for judicial review to test the legality of the Government's action.
§ 9.2 p.m.
§ Lord Irvine of Lairg
My Lords, the timing of the noble and learned Lord is impeccable. The whole House should be grateful to him. From 1st April, if not checked, the Government, without any reference to Parliament, will destroy the scheme for compensating victims of violent crime that has stood since 1964. That scheme aims to compensate a victim for the losses that he or she has suffered and will suffer. It treats the individual claimant as an individual. The new tariff scheme represents a government attack on the victims of violent crime whose losses are the greatest.
Before proceeding with my speech, I should say that we look forward from these Benches with keen anticipation to the maiden speech of the noble and learned Lord, Lord Nolan, a lawyer of the highest distinction.
I agree with every word that has come from the noble and learned Lord, Lord Ackner. The reasoning of the White Paper is so obviously specious that I do not occupy more time by exposing it. It is an insult to the intelligence of its readers. The assertion that the object is,to provide a better service to victims",is humbug. The proposition that,everyone sustaining a similar injury will be treated in a similar fashionis deceptive if it suggests that like cases will be treated alike. The financial consequences of injury to individuals are infinitely variable. The new scheme is a denial of justice precisely because it will treat fundamentally different cases as though they were the same.
Let us take a different sphere—compensation for personal injuries caused by the negligence of another at the workplace or in the street. Compensation is not 1077 confined to a tariff for the injury itself. Common law damages apply. Loss of past and future earnings are compensated, as was the case in the criminal injuries compensation scheme, until 1st April. There would be public outcry if the workman injured at work due to an employer's negligence or a citizen in the street injured due to the negligence of a driver could not recover for his loss of earnings capacity. Do the Government propose legislative change so that in cases of personal injury caused by the negligence of others, the civil courts should in future be entitled to make an award from a tariff based on the extent of the injury, without any regard to loss of earnings and loss of future earnings capacity?
The answer to that is no, but why should that not be the case if the right award for criminal injuries is a tariff sum based on the nature of the injury? Why should that not he so also in the case of personal injuries caused by negligence? The Government could promote a tariff system as a better service by the courts to the victims of injury at work—to borrow the language of the White Paper and adapt it—and they could sell it to an audience of employers as a welcome reduction in the costs of employment.
Of course, the Government have no intention whatever of altering the basis under which the courts compensate victims in personal injury cases for the loss of income, past and prospective, which each has suffered and will suffer as an individual. The fact is that the Government have decided to introduce a tariff system to discriminate against the victims of violent crime, who suffer the greatest loss, because the Government have to pick up the tab. I ask the Minister where the Government stand in relation to all the calls at the Tory Party conference last October for more to be done for victims of violent crime? Will they acknowledge that they will do so much less for those who suffer the greatest loss from violent crime?
The point about the existing scheme is that the compensation paid distinguishes among victims according to the impact of the injuries upon their individual earning capacities. From 1st April, without a word of parliamentary debate if the Government have their way, this crude tariff scheme will deprive the victims of violent crime, who have lost their livelihoods because of their injuries, of the financial support that they require.
In my contribution tonight, I propose to confine myself to the legality of what the Government propose. I have given the noble and learned Lord, Lord Fraser of Carmyllie, advance notice of the two specific points that I propose to make. I look forward to hearing his replies. First, The European Convention on the Compensation of Victims of Violent Crimes was ratified by the United Kingdom in 1990. No doubt it was then thought by the Government that it could safely be ratified—safely, because the existing criminal injuries compensation scheme complied with Article 4, which provides:Compensation shall cover, according to the case under consideration, at least the following items: loss of earnings, medical and hospitalisation expenses and funeral expenses, and as regard dependants, loss of maintenance".I ask the noble and learned Lord to tell the House whether, in deciding to introduce a new tariff-based 1078 scheme, the Government had specific regard to their convention obligations and whether they believe that their new scheme will comply with them.
The preamble to the convention records,that it is necessary to establish minimum provisions in this field".As I read Article 4, every case is an individual one which must be considered on its own particular facts; and, as a minimum, compensation must cover—that is, completely defray—"loss of earnings" consequent on violent crime. Yet the White Paper in terms declares as one of,the main features of the new arrangements [that) no separate payment will be made for loss of earnings or medical expenses'".That is two of the heads of loss which Article 4 requires, as a minimum, to be covered. The current compensatory scheme treats every case as an individual case. It has regard to the particular circumstances of each individual victim of violent crime and the loss that he or she has suffered and will suffer. The awards cover, in just the same way as in personal injury awards in these cases, what is called special damage for past losses; for example, earnings and medical expenses, and general damages, compensation for the pain and suffering caused by the injury itself, together with compensation for future loss of earnings.
Under the new scheme, awards are not to be loss related but injury related. The payments are to be related to the nature of the injury suffered. The consequences on the earning power of the individual are not to be addressed. The award will depend solely on the tariff band within which the particular injury falls. It would be hard to devise a scheme of greater crudity. The reasoning of the White Paper is as specious as the scheme it devises is crude. It actually asserts that the new scheme,means that people with similar injuries will get the same payment, which is by no means the case under the present system where people can often get radically different awards for similar injuries".That is a thoroughly deceptive sentence. Precisely because no injury or group of injuries is identical, there are well known guidelines for the assessment of general damages which were published by the Judicial Studies Board in 1992. So there is a range for particular categories of injuries. But because the extent of the disability within the headings varies in the individual case, the guidelines are flexible and allow justice to be done in each case. Inflexible tariffs for classes of injury are not a virtue. Not to compensate specifically for loss of earnings, past and prospective, is a vice.
I turn now to my second and major point. Sections 108 to 117 of the Criminal Justice Act 1988 put the existing criminal injuries compensation scheme, which had been established under the Royal prerogative, and the board which administered the scheme on a statutory basis. Paragraph 8 to Schedule 7 provided that the amount of compensation should basically be what would be recoverable for the relevant injuries in a civil action brought against the offender, with a ceiling on loss of earnings of one-and-a-half times the "gross average industrial earnings". Thus, Parliament decided that what had been a system of ex gratia payments based on common law compensatory damages should become 1079 statutory so that claimants should become entitled as of right to payments under the scheme. These provisions were, as the noble and learned Lord said, to come into force by order of the Secretary of State under Section 171(1), but no order has been made. The White Paper feebly states that,at the request of the Board the relevant provisions were not brought into force, because this would have disrupted efforts to deal with the heavy workload".That, surely, was a purely temporary reason for not bringing the provisions into force immediately. In any event, workload problems depend upon the resources that are brought to bear upon them. Any suggestion that the workload problem justifies the Government's failure over six years to implement the will of Parliament is absurd. Although no doubt the board would always wish to improve upon its turn-round figures, the current figure of reaching first decisions in 80 per cent. of cases within nine months of the making of the claim is good and compares favourably with the ordinary courts.
The White Paper then continues:With the impending demise of the current scheme the provisions in the 1988 Act will not now be implemented. They will accordingly be repealed when a suitable legislative opportunity presents itself".That represents, I suggest, a staggering disregard for Parliament. The original authority of the board to grant compensation derived from the prerogative. But for the 1988 Act, the Government could unilaterally have made the changes to the scheme that they have announced with effect from 1st April, but the 1988 Act has changed that. By the 1988 Act Parliament decided two distinct things: first, that the scheme should continue on its existing common law basis with compensation for loss of future earning capacity and, secondly, that it should be put on a statutory basis giving claimants legally enforceable rights to compensation under the existing scheme. Thus, Parliament has decided that the scheme should cease to be based upon the prerogative. But the Secretary of State's decision to change the scheme fundamentally in accordance with the White Paper can only be based upon the prerogative, for he has no other power to which he could lay claim. I submit that the Secretary of State may not lawfully derive power from the prerogative, once Parliament has decided that the scheme should become based on statute, not the prerogative.
The only power that the Secretary of State had in relation to the scheme after the passage of the 1988 Act was to determine when, and not whether, Sections 108 to 117 should be brought into force. He certainly had no power unilaterally to reverse the will of Parliament and fundamentally alter the scheme that Parliament had approved. The White Paper states that the provisions of the 1988 Act will,be repealed when a suitable legislative opportunity presents itself'.Why bother repealing these provisions if the Secretary of State is acting lawfully in changing them unilaterally from 1st April? Why has a suitable legislative opportunity not occurred in the shape of the Criminal Justice Bill now going through the other place? Is it 1080 because the Government fear full exposure by debate in Parliament of their reduction in the rights of victims of violent crime?
Why have the Government wilfully abstained from providing an occasion for parliamentary debate of their proposals to diminish compensation for those who have suffered the greatest loss from violent crime? Why has it been left to the initiative of the noble and learned Lord? If the Government bring in these changes unilaterally on 1st April I agree with the noble and learned Lord that they will be playing with fire and I, for one, would predict that they will get their fingers burnt in court.
This is the latest example, as we see it from these Benches, of overreaching power by a Government who have been in power too long.
§ Lord Callaghan of Cardiff
My Lords, I hope my noble friend will excuse me for one moment. I listened with growing incredulity to what he and the noble and learned Lord, Lord Ackner, have said on this subject. I hope my noble friend can help a layman like myself. He thinks the Government will get their fingers burnt. Will there be any remedy for someone who is given an award under the Government's new proposals? Will he be able to take the Government to court and get a decision from the court on the matter? What remedy is he likely to have?
§ Lord Irvine of Lairg
My Lords, the remedy will be in judicial review. The remedy would be available to a complainant who under the new scheme will receive substantially less than he would have received under the previous scheme. The argument will be that the Government are acting unlawfully in setting aside, without reference to Parliament, a compensatory scheme and putting in its place a tariff based scheme which has no specific regard to individual financial loss. I believe I have taken up sufficient of the time of the House.
§ 9.19 p.m.
§ Lord Carlisle of Bucklow
My Lords, in taking part in this debate in your Lordships' House tonight I must declare an interest as the Chairman of the Criminal Injuries Compensation Board. As your Lordships will know, that board consists of 40 part-time members, all of whom are leading practising lawyers. We are a totally independent body, appointed by the Home Secretary, responsible for implementation of the scheme, for deciding whether individual claimants are eligible for compensation and for deciding in each case the amount of that compensation. I am delighted to be able to take part in this debate introduced by the noble and learned Lord, Lord Ackner, and to have this opportunity to express to the House the considered and unanimous views of the board as to the Government's proposals as set out in their White Paper.
Before I do so I should like to make two general points. First, I accept that the scheme for the compensation of victims of crimes of violence which we have had in this country since 1964 and which aims to provide for the individual the same award as he would have achieved had he sued his assailant in the court, is 1081 a scheme of which we are entitled to be thoroughly proud. As has been said in another House, it is the leading scheme of its kind in the world. It has been the model for many other schemes elsewhere.
Secondly, I say to the Minister that I accept that much has changed over the 30 years that the scheme has been in operation. A scheme which was appropriate in 1964, with five members on the board,2,500 applicants in its first year and paying out compensation of some £ 403,000, is not, I accept, necessarily the appropriate framework for a scheme which has now grown so that we have some 70,000 applications and are dealing with some £ 160 million of compensation.
I can assure the Minister that the board fully understands the anxiety expressed by the Government as to the ever mounting cost of the scheme. We share the aims of the Government in wanting to see an efficient scheme, a scheme which deals with individual cases as reasonably quickly as possible, and one which is readily understandable. But I have to say to the Minister that the board is concerned and dismayed that the Government should decide to change the fundamental basis on which until now compensation has been based without any prior consultation of the board, even as to the practicality of what is being proposed. They have done so in a way which the board considers to be fundamentally flawed, in that we believe that the move to a total tariff system as is proposed will be seen to be manifestly unfair and certainly a far less fair system of compensation than that which at present exists.
Until now, as has been said, under the common law damages system each application is individually considered so as to compensate the individual victim for the loss and injury he has actually sustained. To replace it with a tariff system with one single lump payment for a particular type of injury is, I believe, a retrograde step in that of its very nature a tariff system cannot and does not take account of the vastly differing effects of similar injuries on different people.
A tariff of its nature, for example, means that no regard can be had to such fundamental matters as the age, sex, occupation or way of life of the victim, all of which are reflected enormously in the effect which an injury may have on an individual. Many examples of that have been given. I take only one. The elderly lady mugged in the street, when she is knocked to the ground and her handbag snatched, may suffer very little physical injury, but the effect on her life may be totally devastating. I fear that she may be far more gravely injured than in a similar incident occurring to a fit young person in their twenties. Yet I fear that under the tariff system the elderly lady will probably no longer succeed in achieving any rights to compensation.
Further, in arriving at the tariff figures in the way in which the Government do, as the noble and learned Lord, Lord Ackner, said, no proper account has been taken of the loss of earnings or the loss of future earning capacity. The effect of that is that those who have suffered the most will in future be under-compensated, in many cases substantially so.
It is said by the Government that the figures in the tariff are based on an analysis of the Criminal Injuries Compensation Board's awards. I accept that. I accept 1082 fully that the figures in the tariff are generally comparable with the pain and suffering element of general damages. I believe that the White Paper is right when it states that many victims will receive the same amount or perhaps slightly more than they would receive under the present scheme. However, it is equally true that many will receive less, and some substantially less, as no proper account has been taken of loss of earnings and earning capacity, or of the cost of future medical care.
The man whose injury means that he is off work for six months will receive no more than the retired or the unemployed person with a similar injury but who has no similar loss. The building worker who has an injury to his ankle or knee which means that he can never work again, or cannot work at the skilled tasks that he now undertakes, again will receive no more than for a similar injury occasioned to a person who has no loss in earning capacity. Surely that cannot be a fair system.
The Government say that there is in each of the awards a degree of loss of earnings. To some extent that is true, but it simply means that those who have no loss of earnings will be compensated slightly more than they are at present, at the direct expense of those individuals who have lost as a result.
We believe that the proposed scheme is unfair. Further, we believe that in many areas the scheme will be shown in practice to be unworkable. There are certain types of offences where the resulting injury caused to the victim varies so widely as to make any tariff system unworkable. I pose certain questions. Let us take the area of child sex abuse. What is the correct tariff figure for sexual abuse? Every case differs. The effect of such cases on any child varies so enormously that it seems to me that each case must require individual assessment. What is said about sex abuse of children can be said equally about many cases of rape. I give another example. The effect of the shock on the bank clerk who is the victim of an armed robbery varies enormously depending on the makeup of the individual concerned. Psychological injury, sexual abuse and rape are, sadly, growing areas of our work.
The final example I take is the whole question of facial scarring. While I accept that the Government have made an effort in their tariff to provide a classification of facial scarring, frankly I do not believe that one can fairly compensate an individual for facial scarring without assessing the effect on that individual of his scars, rather than saying that they are merely medium or severe, or words to that effect. Thus, the board's feeling is that the scheme proposed is unfair and in certain aspects unworkable.
I turn briefly to consider the advantages that the Government see in their proposals. The White Paper says that the scheme will be quicker and more readily understandable. As regards speed, I accept that if each case does not have to be considered individually, there will be some savings. But I am bound to tell the Minister that I do not think that the savings in time will be significant. Delay has always been a problem for the Criminal Injuries Compensation Board. Lack of resources at an earlier stage created a system where in 1989 92 per cent. of applications were not able to be 1083 dealt with in less than nine months from the date of the application. I remind the Minister that that has now dramatically changed and that in 80 per cent. of all our applications a decision is now given to the victim within a nine-month period. I do not believe that a great deal of saving can be made beyond that because the restraints that exist are the need to obtain reports from the police to find out what happened and reports from the doctors to see the effect of the injuries the person received. Those restraints will be there, whatever scheme we have.
As regards the scheme being more readily understandable, I am at a loss as to what the Government mean. I do not know whether they realise that we already send to every applicant a piece of paper which is a guide to the level of awards and which sets out, as the noble Lord, Lord Irvine, said, the pattern of general damages awards that people can expect.
Finally, the cost: again, I accept that there should be some saving in administrative cost. But I think the Minister will agree and the Government will accept that the amount will be unquantifiable. Our costs today are something less than 9 per cent. of our total budget. What of the cost on the compensation scheme? If I may say so, the Government are rather coy there. They say that they will be providing more money in compensation in the next few years than in the current year. I remind noble Lords that the total overall cost depends far more on the volume of violent crime and the number of applications that are made than on the individual amount given to any applicant. But doing the best we can, our calculation is that the new scheme will mean that the amount paid out in compensation will be 20 per cent. less than it would be under the current scheme. Our objection—and I believe it is a fundamental objection—is that the whole of that saving will be made at the expense of the biggest losers. It is those who have borne the worst injuries who will suffer the most. The board believes that that is the wrong way to make the savings. We believe that there are other and better ways. We have expressed our willingness on many occasions to discuss the changes which we think would meet the Government's aims and so far, frankly, we have not been heeded.
I end by saying to the Minister that I hope that the system for compensation of the victims of crimes of violence is outside the ambit of the party political battle. Since its inception, the scheme has been supported by both parties in Government and in Opposition. It has been reviewed twice by the Home Affairs Select Committee, both times with approval. It was put forward, as we have already been reminded in speeches, by the present Government to Parliament in 1987 as the proper basis for a scheme which should be statutory. On 23rd November 1992 the then Home Secretary, without any prior consultation with any of those interested, announced the intention to change the basis of the scheme. At that time he stated that the Government's intention was to publish a White Paper in the early part of last year and introduce the scheme in April of this year.
1084 In replying to an Adjournment debate on 18th March 1993 in another place, the then Minister of State said:Of course, there will be an opportunity for the House to consider our proposals when the White Paper is published". —[Official Report, Commons,18/3/93; col.508.]In the event, the White Paper was not published in the early part of last year. It was published on the eve of Parliament's adjournment for the Christmas Recess on 15th December. The scheme is due to be implemented next month. The effect has been that there has been no time for that informed discussion which the Government said they had intended would take place. The Government claim that the great advantage of a non-statutory scheme is that they can change it at any time without requiring parliamentary legislation or debate.
I hope that, in the light of the criticisms that have been and may still be made tonight, the Government will look again at their proposals, with the clear intention to achieve what I believe to be possible; namely, a scheme that will reflect the changing nature and volume of the board's work, one which will achieve the Government's stated aims but will do so in such a way as to avoid the fundamental flaws which are inherent in a total tariff system such as is now proposed.
§ 9.36 p.m.
§ Lord Nolan
My Lords, I am very conscious of the fact that a maiden speaker should avoid controversy, and also of the fact that in the present debate that is rather a tall order. I shall do my best to be constructive and not contentious. I have three points to make. The first two are based on my experience of trying personal injuries cases as a Queen's Bench judge. As your Lordships well know, the amounts of the awards made by the Criminal Injuries Compensation Board are based on the awards made by the courts in these cases.
The White Paper speaks, in paragraph 12, of,the very difficult and time consuming task of trying to assign a precisely calculated, but essentially arbitrary, sum to the injury suffered".It points out that,under the present system … people can often get radically different awards for similar injuries".That is one of the arguments for a simple and uniform tariff.
I should be the last to suggest that the assessment of compensation for personal injuries is an entirely simple and straightforward matter. I wonder, nonetheless, whether there is a danger of over-estimating the difficulties and the differences that are involved.
I should like to speak from my own experience, for what it is worth. When I was at the Bar I specialised in tax law. I did no personal injuries work. When I was appointed to the Bench, the Lord Chancellor, mercifully recognising that tax was getting far too difficult for me, put me in the Queen's Bench Division. There I did virtually no tax work but a great many personal injury cases. Although I was inexperienced, the assessment of damages in those cases was an area—I think probably the only area—in which none of my judgments was ever overturned, or even questioned, on appeal. If that seems a very vain and remarkable thing to say, let me add at once that in my three very busy years in the Court of 1085 Appeal I can remember hearing only one case in which the judge's assessment of damages was challenged, one party saying that it was too high and the other that it was too low. Of course, there were other cases heard by other divisions of the Court of Appeal during that time, but they were rare.
The reason is that certainly at High Court and Court of Appeal level one had the assistance of very experienced barristers and solicitors like the members of the board, although seldom so distinguished. With their help one found that the range within which injuries of the same kind should be compensated was well established. There was a pretty clear upper and lower limit. Within that range, as my noble and learned friend Lord Irvine said, there would be substantial differences according to the irnpact of the particular injury upon the life of the individual concerned. The noble Lord, Lord Carlisle, has given a number of examples. A young manual worker or a musician, say, who lost the use of his dominant hand, would be at or near the top of the scale. A middle-aged businessman with a chauffeur, a dictating machine and a secretary would be at the lower end of the scale. Examples can be multiplied.
The Judicial Studies Board, as has been said, has put forward proposals for codifying and narrowing the range within which compensation should be awarded for specific injuries. Those proposals are designed for the benefit of recorders and district judges who have to try such cases without the assistance of very experienced advocates. If the White Paper's proposals are to go ahead in their present form—that is a matter of policy and of law on which I say nothing whatever; it would be improper for me to do so—I wonder whether, with the assistance of the Judicial Studies Board's guidelines, it may yet be possible to retain a measure of flexibility in the new arrangements so that compensation can continue to be related to individual loss.
It may be said that that would perpetuate in the new arrangements the uncertainty and unpredictability of the awards made by the courts. There is always an element of unpredictability in litigation. However, in my experience, there are many cases in which the amount of the damages is agreed once the question of liability or entitlement has been answered. I think I am right in saying that the vast majority of personal injuries cases in the courts are settled by agreement once that stage has been reached and once entitlement has been determined.
That brings me to my second point. Normally the most difficult and anxious task for the judge is deciding whether the claimant is entitled to compensation at all and, if he is, whether his entitlement should be reduced because of his misconduct or carelessness. The board has stricter requirements than the courts in that respect. In a recent letter to The Times, Sir John Palmer, a distinguished former member of the board, wrote:In a high proportion of cases it must be decided whether or not the applicant's own conduct was wholly or in part responsible for his or her injury and whether or not he or she co-operated with the police. Those ate difficult matters of judgment requiring professional experience in assessing evidence".For my part I would add that there are also many cases where the victim is all too genuinely and seriously afflicted by suffering but where those sufferings cannot, or cannot all, be linked to the crime committed against 1086 him. Here, too, great skill and experience may be required in assessing the medical evidence and indeed the evidence of the victim. If the verdict goes against the victim, it is necessary to explain to him and to his family exactly why he is to get nothing or a reduced amount. It has been well said that every trial is a trial of the judge. In my experience the judge is never more on trial than when trying to explain his decision in these matters.
The first annex to the White Paper shows that over the 30-year life of the scheme,643,469 cases have been resolved and awards made in 462,561; in other words, nearly 30 per cent. of the applications have been either abandoned or completely rejected. I suggest that that is a most important statistic in both human and financial terms. It reflects the strictness with which the members of the board have applied the rules. Despite the high percentage of disappointed applicants, it is very rare to hear any complaint of unfairness on the part of the board. I suggest that that is hardly surprising in view of the great experience and ability of the board members.
The White Paper envisages that in future disappointed applicants can make use of a two-stage appeal system, first, to a more senior administrator, and secondly, to an independent panel of professionals, businessmen and others. I hope that the community will not be deprived of the wisdom and the experience of the present board members and that at least a number of them, if they are willing, will be invited to serve on the panel.
The third matter I wish to mention is simply this. I have a friend who was an inspector of police. One night, about 14 years ago, he was doing the rounds of his constables on the beat. He came across one of them sorting out a fight outside a public house at closing time. My friend managed to arrest one of the troublemakers but was attacked and brought to the ground. While on the ground he was kicked in the back of the neck by someone who was never identified. He suffered severe injuries to his spine and to the base of his skull. Until then he had never known a day of serious ill-health. Since then he has never known a day of normal good health.
After some three years of diagnosis, surgery, convalescence and prognosis he was awarded £ 60,000 by the board. That has made his life more comfortable in a number of ways. For example, he can take package holidays and swim in warm seas, which he much enjoys. I do not know what he would receive under the new system or when he would receive it. I make no point on that. I merely express the hope, with him and those like him in mind, that whatever the precise form of the new arrangements, we shall continue to have a scheme which makes fair and appropriate provision for those who need and in many cases—one thinks particularly of police officers and of civilians who have a go and who are injured as a result—richly deserve it.
I thank my noble and learned and, if I may say so, old friend Lord Ackner for giving me the opportunity of taking part in this extremely important debate, and I thank your Lordships very much for the patient and courteous hearing you have given me.
§ 9.47 p.m.
§ Lord Mishcon
My Lords, when I realised that I had the pleasure and privilege of congratulating the noble and learned Lord, Lord Nolan, I must confess that at first it was accompanied with a sigh. The sigh was caused by the fact that I remembered that I had had the great honour of briefing him in years gone by and it seemed as though the years—so far as I was concerned—must have mounted up considerably for me to be paying a compliment to a Lord of Appeal in Ordinary who was that self-same person. The sigh was removed when I looked at the speed of the career of the noble and learned Lord and saw how, after only two years in the Court of Appeal, he has honoured this House, as we honour him, by his being a Lord of Appeal in Ordinary. We listened to a delightful and learned speech. We look forward to hearing many more.
I turn immediately to the Minister. It is not with a sigh that I look at him; it is with a sense of sympathy but with a word of respectful advice. I venture the suggestion that he forgets all about the speech that he intended to make and which was prepared for him. With the wisdom that he has always shown, especially as an illustrious lawyer when we were used to calling him the "noble and learned" Lord—I shall not leave out the "learned" on this occasion, even though he now occupies the position of Minister of State and therefore is not strictly entitled to it—I ask him to say, whatever may be contained in the brief, that the Government will consider carefully what has been said in your Lordships' House tonight by those so well qualified to say it. I ask him to say that the Government are prepared to consult those with whom consultation should have taken place but did not take place with a view to ensuring that, although the old scheme may be reformed, it will not necessarily take the shape of the tariff system.
Not only would the noble and learned Lord be wise to follow that respectful advice as a lawyer, he may also wish to follow that advice as a politician. As a lawyer, he may have noticed—the Minister is very observant—that when the noble and learned Lord, Lord Ackner, and my noble friend Lord Irvine of Lairg referred to the fact that the Government were trespassing upon very dangerous ground in regard to their legal position and that a remedy of judicial review might be taken, as was stated in answer to the very pertinent question of my noble friend Lord Callaghan, and on good grounds, by someone who was disadvantaged by this new scheme as against the old one, at least four former Lords of Appeal in Ordinary nodded their heads. That was about the best legal opinion gratuitously obtained that the Government could ever expect.
§ Lord Mishcon
And gratuitous, my Lords, as I said. It would be very foolish in my view for that gesture, which was made so generously by the noble and learned Lords, to go ignored.
I am going to talk to the Minister as a politician. There are to be some by-elections. I am not going to pretend—it would be hypocrisy—that I feel that the Government are likely to win any of them.
1088 Nevertheless, I want at least a good battle. There is going to be a pretty poor battle in view of all the speeches that have been made and that I have listened to from the Front Bench opposite—not from the Back Benches, which are so often wiser—about law and order. When those on this side have said,"Please, don't fill the prisons any more. Please, in regard to punishment which must be meted out to those who have broken the law, show a little attention to the hope that they will indeed be better people; that they should have community service instead of prison", and so on, we have listened to speeches from Ministers saying,"We are going to show the public that so far as we are concerned it is sympathy for the victim that counts. You are giving too much sympathy to the offender". It will not sound well if on 1st April, before those by-elections are held, the Government proceed with this scheme which shows little support indeed for victims. So I ask the Minister in all seriousness to take this back to his colleagues and say to them that they must think again.
There is another principle that the Government have so often spoken of; that is, open government. Open government means, of course, that you consult and that when appropriate you go to Parliament. I have in front of me a paper which was issued by the Criminal Injuries Compensation Board, of which the noble Lord, Lord Carlisle, has been a notably great chairman. If I may say so, the noble Lord is much too much of a gentleman to have said this in public about what the Government have done. In that paper I find the following sentence:The announcement made by the then Home Secretary on 23rd November 1992 to change fundamentally the basis of compensation and replace it with a tariff system was taken without any prior consultation with the board".That is not only wrong, but bad manners, for this and other consultations, I repeat, to take place. It is not open government to be doing all this with a White Paper issued in December, with no opportunity for debate and talking about the date,1st April. It is not open government.
I conclude by begging the Government not to do something which really makes them look ridiculous. I am certainly not going to take up the time of the House in doing what the noble and learned Lord, Lord Ackner, did so much better; namely, reciting cases showing the vast discrepancy between what is proposed under this new scheme and what is there under the old. I shall read out two examples of what the tariff does and the sheer absurdity of it, quite apart from the injustice. Then, I hope with some dramatic effect, I shall sit down.
The examples are these, and I put them forward seriously:Sexual and/or Physical abuse of children Not involving rape or buggery, £ 1,000 teeth: loss of one front tooth, £ 1,500".I give another example and, again, very seriously:Rape or buggery: by one person, £ 7,500.Lower limbs: fractured patella—knee cap, £ 7,500",which is the same amount. I keep my promise and sit down.
§ 9.56 p.m.
§ Lord Simon of Glaisdale
My Lords, your Lordships have heard sufficient of the history of this matter to know how indebted we are to my noble and 1089 learned friend Lord Ackner for providing Parliament with an opportunity to discuss this scheme. Indeed, it looked as though it was to be the only opportunity that Parliament would have. I do not propose to cover the ground that has been so ably, cogently and devastatingly covered by the speakers who have preceded me.
I shall look a little further than this scheme and its predecessor. As regards the present scheme, I have always heard that its operation is very highly regarded indeed. There has been remarkably little criticism of the way that the board has operated it, and there have been many expressions of appreciation.
The new scheme may look very attractive from Whitehall with its median, its tariff and disregard of all the individual circumstances that are attendant on the injuries with which we are concerned. I expect that the noble Lord, Lord Mishcon, will call to mind the way in which we were invited to approve of the Child Support Act which was similarly a bureaucratic Act. It was felt that the operation of the magistrates' courts varied. Of course they do because the circumstances they had to deal with were infinitely different. They also take account of local conditions. So it is with the way in which the board has operated the present scheme. There is no advantage to have a neat tariff scheme based on medians and to think that one has thereby brought in an improvement.
Going beyond that, I should like to say just this: the White Paper mentions the sympathy and concern of the Government for the victims of crimes of violence. That is quite inadequate. It is a primary duty of society—of the state, indeed—to protect the individual citizen and the body of citizens both from external violence and from internal violence. It is not a matter of sympathy and concern; it is a matter of duty, and the citizen has a right, a commensurate right, which he derives from his own service to the state: financial, by employment, and in other ways. That right should be recognised. It is surely retrograde to go back from a statutory scheme to an ex gratia scheme.
The other thing that I want to say is more controversial. I have had doubts from the very beginning of the scheme about whether we were not differentiating unduly between victims of violent crime and those who lost property by crime. When the time comes—and that means when the means are available—the duty of the state ought to extend also to compensating victims who have suffered loss of property. From the very beginning of the liberal state, the duty of the state to safeguard property has been given a high priority. I know that that is quite impracticable at the moment. The prime duty of the Government is undoubtedly to reduce the overspending of £ 50 million per year as soon as possible; but in the end, when the means are available and after the present scheme has been restored with possibly some minor adjustments, we should look beyond it to see what further duties the state owes to the individual.
In the meantime, as I said at the beginning, the present scheme has been highly regarded. The way in which it has been administered has been much admired. It is a thoroughly deplorable step to go back from the 1090 statutory scheme to the White Paper scheme involving all the injustices that have been spelt out beyond any question in the debate already this evening.
§ 10.3 p.m.
§ Lord Colnbrook
My Lords, all the speeches so far have been made by lawyers. In fact, nearly all the remaining speeches will be made by lawyers, with the exceptions of myself, the noble Baroness, Lady Dean, who is to follow me, the noble Earl, Lord Longford, and the noble Lord, Lord Ewing of Kirkford. I very much hope that a speech from a layman will not be unwelcome. Perhaps we look at this from a marginally different point of view.
My interest in the Criminal Injuries Compensation Scheme arises because in my time I have seen far more of the results of violence than I would wish—perhaps not in England, Scotland or Wales, but that does not matter. The effects of violent behaviour are the same wherever it occurs. One cannot help but be interested in a scheme that tries to do something for the victims.
I do not think that there is anyone in this country who feels that what Parliament decided 30 years ago was wrong; namely, that the state should seek to help those who became victims of violent behaviour who had no other remedy because either they could not identify those who had caused their distress or, if they could identify them, those responsible could not in any way recompense the victim for the damage that had been suffered.
Everybody agrees that that is a first-class scheme which should continue. That is not to say that I have not had questions from time to time about the way in which it has been administered, certainly questions about the proposals which we are now discussing.
I want to make three points, and I shall make them in ascending order of importance.
The first concerns the speed with which claims are dealt. Two thousand years ago a Roman poet, whose name I cannot properly pronounce because I am uneducated, said something to the effect that "he gives twice who gives promptly". The reverse applies, He gives only half as much who delays a great deal. There have been occasions in the past, some years ago now, when delays in settling claims were appalling, so that when the claim was settled it was worth much less. I am not talking about inflation; they were worth less because they had taken so long and there had been so much hassle in settling. I am sure that my noble friend Lord Carlisle was right when he said that matters had improved over recent years and become much speedier, but I note that in the White Paper, Cm.2434 which we have before us, in no less than three paragraphs, Nos.8,9 and 41, it is claimed that the new scheme will be even speedier. When my noble friend comes to reply I should very much like him to tell me on what he bases that and how much quicker he thinks it will be. I hope that he will be able to give me some comforting news.
My second point relates to a matter already raised by a number of noble Lords: the tariff which is published as Annex B to the paper. The noble Lord, Lord Mishcon, gave us some examples, and noble and learned Lords 1091 who have great experience of these matters in the courts have been able to give even more telling examples than I can. I look at it from a layman's point of view.
Perhaps I may tell my noble friend and the House that one particular point struck me straight away. If you look at the proposed tariff you will see that if somebody is killed, not necessarily on the street but perhaps by helping to arrest a criminal, the tariff specifies that his widow will receive £ 10,000, and that if that man is not killed but has the misfortune to lose two fingers he will also receive £ 10,000. I am happy to see that my noble friend on the Front Bench has all his fingers and I hope that he will continue to retain them, but I should like to ask him whether, if he lost two fingers of his left hand, he could not do the same job as he is doing now equally well? Of course he could. I accept that if one happened to be a concert pianist one could not. The loss of two fingers may cause great pain, great trauma and difficulty, and hospitalisation, but it does not impair a man's ability nearly as much as being killed. As a layman, it seems to me ludicrous to say that losing two fingers is the same as losing your life. No doubt many other examples can be given. I just give that simple one.
This leads me on to my third point, which has been referred to by the noble and learned Lord, Lord Ackner, and by others, about the question of the scheme being non-statutory. The noble and learned Lord gave many examples of when the Government had undertaken to make the scheme statutory. All noble Lords have referred to the 1988 Act. I remember well being told eight years ago that it would be made statutory. On 17th April 1986 I was responsible for raising the issue in a debate in the other place which was answered by the then Home Secretary, Mr. Douglas Hurd. It is quite clear in Hansard that he said that:we intend to put the criminal injuries compensation scheme on to a statutory basis".—[Official Report, Commons,17/4/86; col.1150.]He spoke about introducing legislation next Session, which he did, but it is still a non-statutory scheme.
Many noble Lords have stated why they believe that that is a bad thing. I should like to put forward another reason. A non-statutory scheme, as this is, which relies solely upon the prerogative means that my right honourable friend the Home Secretary and the Secretary of State for Scotland can alter it whenever they like without the smallest reference to Parliament.
It is true that Parliament votes the money. That is the only control that Parliament has. And it is quite a lot of money—£ 150 million or £ 160 million per year. The only control that Parliament has is over that money. How is that control exercised? It is exercised merely because the estimate for it is presented to the other place.
I am sure that we all know how that works. Estimates are presented. What can the other place do about those estimates? They can only reduce them by a token or total amount. It cannot say, "We do not like this scheme; we shall not go along with it; and you cannot do it". It can merely say that it does not like the scheme and that the Government must spend less on it. 1092 That is no form of parliamentary control that I can see. If Parliament means anything—and it does and we all know that it does—it should have the right to say to a Minister who proposes to make radical changes to an operation which costs the taxpayer £ 160 million per year,"We do not like this proposal. You must take it away and think about it again". No Member of either House of Parliament has that right, and I cannot believe that is right.
I shall not enter into the discussion about the legality of what the Government are doing because that has been raised already and it may be challenged in the courts. I believe that from a parliamentary point of view, it is high time that the scheme were placed on a statutory footing. I must tell my noble and learned friend that I am dismayed that in the White Paper it merely says that the Government will think about it. I hope that they will think long and hard about it and make the scheme statutory.
§ 10.13 p.m.
§ Baroness Dean of Thornton-le-Fylde
My Lords, like the noble Lord, Lord Colnbrook, I am a lay person and I hope that my contribution will be welcomed in the debate. I do not speak as a lawyer. I speak as someone who has seen the great benefits which the Criminal Injuries Compensation Board scheme has provided for people who would have no other form of redress to compensate them for the injuries that they had received.
I am in good company because not one noble and learned Lord has spoken in favour of the proposal and therefore I am encouraged to continue with my contribution. I thank the noble and learned Lord, Lord Ackner, for initiating the debate. It is an extremely important subject and many people outside the House will be grateful to him for providing us with the opportunity to discuss the matter.
I congratulate the noble and learned Lord, Lord Nolan, on his maiden speech. He has shown care, compassion and understanding. His contribution was extremely welcome and I was very interested by it.
In November 1991, in a Written Answer in another place, the then Home Secretary, Kenneth Clarke, said that the Government were anxious to improve services to all victims of crime. He said that a structure was needed which would provide quicker payments and which was fair, straightforward and easy to understand. I suggest that the proposals now before us have none of those virtues. There are fundamental changes across the board. I can only come to one conclusion; namely, that it is really about saving money. Indeed, the noble Lord, Lord Carlisle, confirmed that point in respect of the work that the Criminal Injuries Compensation Board has been able to do.
In 1992, the Criminal Injuries Compensation Board dealt with 252 awards for fatal injuries,25 of which were over £ 10,000. By taking the median, the Government are now arguing that most people will not be worse off with the new tariff of £ 10,000. I suggest that that introduction will deprive a small group of people who are in real need.
I do not want to deal with supposition: let us deal with the facts. I looked at the 1992 report of the CICB. 1093 As a lay person, I am obviously interested in the compensation that was paid. However, I am also interested in the personal circumstances surrounding the particular claims that were lodged with the board. I was concerned to read, for example, about a man who was working as a doorman. He was a married man with two sons. While at work he noticed that an argument was going on in the car park of a public house. He went to help and, in the process of so doing, a car reversed at high speed and he was killed. The award was £ 121,000. Under the proposed tariff it would be £ 10,000.
The noble and learned Lord, Lord Ackner, mentioned the story of a young woman in her thirties. I should like to read from the report which sets out the details surrounding that case. I believe that it really goes to the heart of the impact on families and children in such circumstances. The young woman, who had two children aged six and four, had gone to bed with her husband. Some time later, there was a knock on the front door. The husband went downstairs to answer. The young woman heard a commotion, got out of bed and went to investigate. She says that she did not see who stabbed her husband but that she did see him struggling with the assailant at the bottom of the stairs. The young woman went to help her husband and was injured as a result. She dragged her husband inside the house and vividly recalls—and, indeed, will recall to the end of her days—the assailant still staring in from the garden path until she closed the door on him.
The young woman telephoned for an ambulance and remained with her husband until it arrived. The two young children were still upstairs in bed unaware of what was happening. She tried to stop the blood flow but her husband was pronounced dead at home. The unknown assailant remained undetected. Understandably, that young wife suffered from post-traumatic disorder of a deep intensity. Moreover, at the same time as trying to rebuild the lives of her two young children, she was awarded £ 137,000 under the scheme. Under the proposed tariff, the young woman would have received £ 10,000 for the death of her husband, and £ 7,000 in respect of her own injuries.
That is what the new tariff will do to families faced with such a situation. It is a cruel decision. I ask the Minister to reconsider what the Government are doing. I cannot believe that it is the Government's intention that families in such a vulnerable position should be faced with that kind of financial hardship.
Regrettably, many people are subjected to criminal assault in the course of their work. The TUC and many unions, especially in the public sector, are concerned about the matter, as, indeed, was the Health and Safety Commission in 1987 when the health service advisory committee examined the issue of violence to employees in the health service. The committee produced a most remarkable figure. It found that 11.5 per cent. of staff in the health service in any one year sustain physical injury because of assault.
The single group most at risk among health service workers are student nurses. In any one year the Royal College of Nursing represents 160 of its members in criminal injuries cases. For example, a psychiatric nurse in Manchester sustained a 15 per cent. Permanent 1094 disability for life as a result of an attack. Her award was £ 127,000. She would receive £ 5,000 under the tariff system. The tariff system puts victims into predetermined bands which take no account of their individual circumstances or individual identities. It is a heartless, cruel proposal that we are faced with. It also abandons the principle of taking into account potential loss of earnings.
The Government say that the intention of the new system is to remove inconsistencies. However, I would suggest it attempts that in a rather bizarre way. Facial scarring has already been mentioned. Some £ 3,500 is awarded for a significant disfigurement whether the victim is a young girl of 17 years of age looking forward to her life ahead or a pensioner in his sixties. A victim receives the same compensation whether his left or right hand is injured and yet the Judicial Studies Board and the courts have recognised that there is a difference between injuring one's right or one's left hand.
Another factor which has not been taken into account is the trauma that flows from rape or child sex abuse cases. A child of 12 in Nottingham was subjected to a vicious sexual assault—I take the case from the report of the criminal injuries board—by her uncle which included penetration with a walking stick. The present scheme provided £ 5,000 compensation. Many may feel that that is not sufficient. However, under the new tariff, the victim of an injury would receive an award of £ 1,000.
A woman of 25 was raped and subjected to a vicious sexual attack for over 12 hours by the lodger in her own home. Her six year-old son witnessed part of the attack. She received £ 42,500 under the present scheme. The woman needed two operations and long psychiatric treatment after the attack. Under the proposed tariff—which will operate from April unless the Government recognise they have made a mistake and change their mind—she would receive £ 1,000.
These are not pleasant stories. But we must face up to the real-life situations behind the statistics. We must also face up to the real impact of the proposed changes. The Criminal Injuries Compensation Board is all too often the only avenue of support for victims. I cannot believe that the Government really want people to suffer in this manner. I cannot believe that this miserly, heartless route is the one down which the Government, or anyone in a civilised society, wish to proceed.
The Criminal Injuries Compensation Board is against the proposals as are trade unions. I hope that the Government are not so dogmatic as not to listen to the view of the trade unions on this matter. Why is there such a rush? If the Government are determined to introduce a tariff, why not consult people on it? No consultation has taken place. Why do the Government not recognise that people are different and that their circumstances are different? Why do the Government not recognise that people's injuries are different? Victims' loss of earnings must be taken into account:, as must the effect of their injuries on their lives. 'The present scheme is not perfect by any stretch of the imagination but it is streets ahead of what is being 1095 proposed. The proposed scheme will have a deeply punitive effect on people who have no other avenue through which to seek help.
§ 10.24 p.m.
§ Lord Morton of Shuna
My Lords, I assure the noble Baroness that at least one lawyer gains a great deal of pleasure from hearing non-lawyers speak on this matter. It appeared from what a Home Office Minister said on the radio last week that the Government are not paying any attention to complaints about the new system because only lawyers have complained about it. It would be unfortunate if only lawyers complained about it.
It is unfortunate that the present members of the board were not consulted. It is unfortunate that the Faculty of Advocates, of whom the noble and learned Lord the Minister who is to reply and I are both members, wrote on 9th July of last year to both the Minister's right honourable friends the Secretaries of State raising the European Convention on Victims of Crime and the European Convention on Human Rights and has yet to receive a reply. The Faculty of Advocates is, of course, a legal organisation. I shall be interested to hear the reply now.
The main difficulty with the new tariff scheme is the total unfairness of the approach. Loss of earnings is not a feature in many claims. There are retired people, housewives, students and the unemployed. There is also a large number of employed people who receive payment when they are off work, whether as a result of a crime of violence or for any other reason. Civil servants and judges are two categories of people who are in that position. However, a great many self-employed people and others are not paid when they are off work. It is of considerable importance to them. Why should I as a judge, breaking an ankle in a crime of violence, receive exactly the same as a man who is off work for three months and receives no earnings during that period? Are our losses exactly the same? That is the effect of the tariff.
To quote paragraph 12 of the White Paper, the tariff,means that people with similar injuries will get the same payment, which is by no means the case under the present system where people … get radically different awards for similar injuries".That is the whole basis of compensation in the civil courts. We compensate for the actual injury that the person has sustained. Do the Government say that the whole system of civil damages is wrong? If so, are we to discard the Pearson Report and everything else?
I was a member of the Criminal Injuries Compensation Board and so in a sense have an interest. I also took part in the debate on what became the 1988 Act. I played a considerable part trying to represent the board. It is discouraging to see that just thrown aside. However, that discouragement could be accepted if this were a better scheme.
Last month I made an award to a steel erector of 50 who will never work again. His damages for loss of earnings, present and future, were £ 147,000 out of a total award of £ 187,000. That same injury could easily 1096 have been sustained in a crime of violence, in which case under the tariff he would receive £ 20,000. Do the Government really consider that that would be fair?
Do the Government really consider that paragraph 25 of the White Paper dealing with fatal injuries is reasonable, just and fair? It states that,the new tariff award in fatal cases will, like other awards under the tariff scheme, leave most claimants no worse off than before. Indeed, in fatal cases, most claimants will be rather better off".One could congratulate the writers of that paragraph for their supreme complacency.
If a police officer of 30 with two children and a wife is killed he will receive £ 10,000. I once prosecuted a drunk driver for killing a policeman who happened to have two children. There is no difficulty in such a case because the motor insurance will take the case. But if that man was killed by stabbing, as was a police officer recently, his widow and children will receive £ 10,000. The Government may say,"Of course the police give pensions to people." What happens if the man is a self-employed plumber who happens to be lending a hand? The sum is still £ 10,000, no matter how many children or however difficult the wife's position.
How does that position square with the European Convention on the Compensation of Victims of Violent Crimes? Article 4 states:Compensation shall cover…. funeral expenses, and, as regards dependants, loss of maintenance".With regard to the tariff system, that compensation goes completely.
I had planned to say much that has already been said. Sir John Palmer has been mentioned. I vividly remember him having to make an assessment on scarring on a young lady who was a photographic model and who appeared on occasions on page 3 of certain newspapers. To say that her loss through receiving a scar on the chest was the same as my loss through a scar on the chest is the most absurd piece of nonsense. It is difficult to understand the basis of that argument.
Some years ago the Government introduced a scheme whereby in a certain area everyone, no matter what his means, was to pay the same amount. That scheme became rather unpopularly known as the poll tax. This scheme in effect is a mirror image of that system. The Government are saying that everyone who suffers a broken ankle is to receive the same damages; everyone who suffers an injury to the hand is to receive the same damages, whatever his personal circumstances. There is nothing more blatantly unfair.
§ 10.32 p.m.
§ Lord Macaulay of Bragar
My Lords, in making a contribution to the debate, perhaps I may declare an interest as a serving member of the Criminal Injuries Compensation Board. We are all deeply grateful to the noble and learned Lord, Lord Ackner, for giving us the opportunity to discuss this vital issue which affects the whole community.
I do not believe that it would be wrong for me to say in the context of this debate that so far the Government, in the shape of the Minister, have received a severe mugging, including a judicial mugging. Unfortunately, there is nothing in the tariff to compensate him for that 1097 other than to take up the offer of my noble friend Lord Mishcon and to reconsider this piece of nonsense in the light of what has been said in your Lordships' House.
It is not only the lawyers who object to this iniquitous scheme. I have a letter from the Law Society of Scotland which has taken a stand against it. The letter states that the society has also had indications of support from the Faculty of Advocates—you may say that that is another bunch of lawyers—and ENABLE, which is the Scottish Society for the Mentally Handicapped, and the premier Cornrnunity Law Centre in Glasgow known as the Legal Services Agency. A number of other bodies had indicated support but the writer did not know whether they wished to be named at this stage. Several speakers still have to make a contribution to the debate. There would be moderate surprise if more than one of those speakers supported the Government.
If there is to be a scheme, then it is the essence of justice and fairness that each applicant's application is considered subjectively and assessed on a fair and equitable basis to reflect, first, the wrong done to the individual and the consequences, financial and otherwise, flowing from that wrongdoing. It is correct to say, as has been said in the past, that the state has no legal obligation towards victims of crime. For that reason the scheme is an ex gratia one. But there is a moral duty; and as the noble and learned Lord, Lord Simon, mentioned, the state has a duty towards the citizen to whom wrong is done.
The debate has demonstrated one important matter. The reality of life is that citizens innocent of any misdemeanour or crimes against the state and those who are at the forefront of fighting on society's behalf, the frontline soldiers of the community, will be denied justice from the community in whose name they serve and whom they serve with magnificent courage and resolution in many spheres. I speak of police officers who face danger daily and suffer the consequences. I speak of firemen dealing with arson who sustain serious injuries. I speak of psychiatric nurses and many others who could be added to the list.
Those are specialised fields, but in the absence of a common law scheme under the Criminal Injuries Compensation Board, as the noble Baroness, Lady Dean, pointed out, those people have no recourse to any other place from which to obtain compensation. Perhaps I may read one sentence from a letter received from the Royal College of Nursing which states:A fixed tariff and an expression of sympathy is an inadequate response to the nurses who are injured while caring for others".Under the tariff scheme, who is to pay the policeman and those people in the examples I gave who suffer serious and permanently disabling injury in the course of duty? Who is to pay the young nurse whose career is brought to an abrupt end in perhaps her early twenties, dealing with a psychiatrically disturbed patient? It is in the nature of the work that those people carry out, in dangerous circumstances on behalf of the state, that they will be disabled to one extent or another and on occasions be rendered completely unfit to work. Under the tariff scheme proposed by the Government, the door of compensation will be firmly closed in their faces without one word of sympathy from the state on behalf 1098 of the community. That action may well be a deterrent in itself to such people carrying out duties efficiently on behalf of the community, although I am sure that they will all continue to do their best.
What of the private citizen? Time and time again over the past few years, private citizens have been exhorted by the Government, in the name of law and order, to go to the assistance of the police. Where they see a police officer being attacked, go and help them; where they see trouble, go to the assistance of the officer. Who will help the person who, in carrying out his public duty and perhaps risking life and limb, sustains a serious injury which disables him for life? Who will pay under the tariff scheme? The answer is no one. The Government, through the scheme, will say: "Thank you very much for your courage and public-spirited actions. Sorry, you can't work any more. Goodbye and good luck". If that is justice, then it is a pretty poor example of justice as perceived under the scheme.
Clearly, as from 1st April 1994, any such minded citizen would be well advised to stay out of the fray. If lives are lost which could have been saved, and if police officers are injured whose injury could have been avoided, and if criminals evade capture, then the fault for that will lie solely at the door of the Government.
Serious questions have to be asked as to whether there is a philosophy behind the tariff. I give the Government the credit of being able to apply some form of philosophy; but what is it? In the search for a philosophy, we have a negative answer. As the noble Baroness, Lady Dean, said, the tariff scheme has been imposed without consultation; 40 senior members of the legal profession with probably 20 to 30 years of experience between them, with a vast reservoir of knowledge of the law on personal injury, were deliberately ignored by the Government who introduced the scheme out of the blue following the matters that have been discussed in relation to the criminal justice Bill.
The Government say they are a listening government. There is another aspect to listening, and that is hearing. If you listen with cloth ears, you hear nothing. This Government have unfortunately—I do not believe this is a party-political issue—demonstrated time and time again that they will not listen. When they are forced to listen, they change their mind. This House has forced an about-turn on various aspects of legislation recently. Even in Scotland new fees have been imposed on the sheriff courts without consultation. They took effect from 1st January this year. In at least one aspect they have been found to be defective, and people are now getting their money back. The scheme was wrong and badly thought out. One sheriff has challenged the whole basis of the scheme. That has all happened because Government will not take time to think.
If I am correct and that is so, then any reasonable person—lawyer or otherwise—is driven to the inevitable conclusion that the proposed tariff is the reflection of a heartless, Treasury-led exercise, paying little if any regard to fairness and equity and the public interest.
1099 The position of the lawyers in the administration of the board is neither here nor there. Lawyers will come and lawyers will go; they will find other spheres of activity in which to entertain themselves (if that is the correct word) or to occupy themselves. But what happens to the victim, to the person in the wheelchair who has not been adequately compensated by this scheme? He or she cannot find another field of activity. He or she can no longer take part in sports; play with the children; dig the garden and do all the things that ordinary people like to do to one degree or another. That person is imprisoned by the wrongful act of another citizen, perhaps while acting on behalf of the community. This scheme says: that is just too bad; you will just have to live with it and get on with your life.
It is important to bear one other factor in mind which I believe has already been touched upon; namely, that the injured person may be—indeed, is more than likely to be—the sole wage-earner in the family. What does this scheme give to that sole wage earner who is deprived of the dignity of work—the ability to work is a matter of dignity, and people regard it as such—who is deprived of the ability to work, of an income and of the dignity of supporting his or her own family? In the absence of the wage loss being taken into account, it gives very little indeed. That has further implications for the community. The community has then to support the family. It is not only the victim who will hold a grievance. His family, also affected by the injury, would be entitled to hold a grievance against a society which had unfairly compensated a well-meaning individual acting without any wrong towards society. That is a sorry state of affairs.
Examples of unfairness have been given, and I do not intend to go over them, apart from perhaps mentioning two cases. One of them has already been mentioned by the noble Lord, Lord Carlisle. I heard a case on the day when this scheme was announced of a labourer who had appealed against an award of £ 2,500. On the tariff he would have got £ 2,500. When he came before the hearing, it turned out that he had an inverted foot, which meant that he could not dig. He could not work on a building site or anywhere requiring manual work, which was his only skill. Manual work on a building is, in fact, a skill, although some people might not accept that. He could not work. Instead of getting £ 2,500, he got £ 70,000 to make up for his inability to work.
Another person who was very badly facially scarred and on whom the plastic surgeons had done a magnificent job, purely on a scarring basis, according to the tariff, might have received £ 6,500. It so happened that that person's occupation heavily involved confronting members of the public and public relations work, in which the person was unable to continue. A sum of over £ 100,000 was awarded. That is proper compensation from the state for those injuries which would never be seen within the tariff. There are various areas, touched upon by the noble Lord, Lord Carlisle, where the tariff scheme cannot work.
One other area that was not mentioned was that of multiple injuries. There is a sliding scale of adding 10 per cent. or 15 per cent. to the major injury, going 1100 through the various injuries. A figure is brought out which would never be awarded in the courts and which is well below the court's award. By some form of tortuous reasoning, the principles of fatal injury awards in England and Wales are applied to Scotland. I do not know anyone who was consulted in Scotland as to whether that reasoning is good or bad.
As has already been pointed out by the noble Baroness, there is the matter of sexual abuse. Do we have a Richter trauma scale for sexual abuse, compiled by what is known as the number-crunching of 20,000 files within the Criminal Injuries Compensation Board? The variety and degree of trauma in sexual abuse cases is unbelievable. It would do a lot of people a lot of good perhaps to sit in the court and listen to what people have to suffer at the hands of their abusers.
In the Scotsman —and for noble Lords who are not familiar with Scottish newspapers, the Scotsman is a Scottish newspaper—for Saturday 26th February 1994, under the headline "Criminal injuries pay plan may alter", the Home Affairs Correspondent writes:A Scottish Office spokeswoman said last night that although the changes would come in on 1 April, ministers remain open-minded".That is nice to know, because up to now they have been closed-minded. The article goes on:The new scheme will take effect"—I ask noble Lords to listen carefully. The item comes from the Scottish Office—because the Government has this power and has deemed it so".What sort of democracy are we living in? The government have deemed it so and therefore it shall be, with no give or take one way or the other. The writer continues:but ministers are still listening and debating the detail of it. It is not too late to change the detail before 1 April should they wish to".An interesting observation to make is that change of detail does not amount to change of principle. They can "futter" about as long as they like with the detail of the tariff without affecting the principle of restoring to injured persons the rights which they previously had under the common law.
The time has come for the Government to take this issue away and have another look at it. They have had plenty of advice so far in this debate, and no doubt they will receive more.
I close by referring to three passages which I believe apply today as equally as they did at the time they appeared. One is from the White Paper that has already been referred to by the noble and learned Lord, Lord Ackner. In that paper, referring to a previous White Paper, it was said:The assumption that the claims of the victim are sufficiently satisfied if the offender is punished by society becomes less persuasive as society in its dealings with offenders increasingly emphasises the reformative aspects of punishment. Indeed in the public mind the interests of the offender may not infrequently seem to be placed before those of his victim. This is certainly not the correct emphasis".The White Paper goes on to say at paragraph 8:Compensation will be paid ex gratia. 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 for and sympathy with the innocent victim, and it is right that this feeling should find practical expression in the provision of compensation on behalf of the community".1101 Finally, from the first report of the board, paragraph 15 concludes in these terms:But no-one who is called to deal with those cases in which a blameless victim his been seriously disabled, sometimes for life, or with those uses in which the elderly and infirm have suffered injury and shock, can fail to feel deeply what a worthwhile part is played in the full administration of justice by the power to award compensation".Let us return to those principles and apply justice to this scheme.
§ 10.50 p.m.
§ Lord Alexander of Weedon
My Lords, perhaps I may—somewhat improbably in this debate—begin with a word in praise of the Government. I believe that Conservative governments have a conspicuously good record in the field of criminal injuries compensation. Following, I am glad to say, hard on the heels of a Justice report, it was a Conservative government which introduced the scheme in 1964. It was the first such scheme to be introduced in Europe. It was a Conservative government which decided that the scheme should be put on a statutory basis in the Criminal Justice Act 1988. The scheme is currently as generous as exists anywhere, except possibly in the United States. That, I am sure, is regarded by everyone in your Lordships' House as an admirable record which we would wish to acknowledge.
I also applaud the action of the Government at any time in looking closely at the management of the scheme to see that it gives value for money. Some suggest that the proposal is mere cost-cutting; that it is, in that dreaded phrase,"Treasury led", as though that automatically proved that it was suspect. I am not sure that that is necessarily right.
The eternal complaints against the law are uncertainty, cost and delay. I believe that our formal legal processes are still far too cumbersome and still far too expensive. So I welcome any sensible attempts to introduce a cost-benefit approach to the delivery of justice. But it remains vital to the credibility of justice that the result should be fair and should carry respect. For me, the current proposals fail that test miserably.
well recognise, as did the distinguished chairman of the scheme, that there have been criticisms of the existing scheme. A backlog of cases did build up. And there have been complaints—let us acknowledge them—notably from Victim Support, that the basis of awards is difficult to understand and that the amount awarded is sometimes seen to be unpredictable. Clearly it is important that those complaints should be carefully weighed. We would all agree with the statement in the White Paper that the operation of the scheme should be reasonably speedy and straightforward.
But those concerns would sensibly have led to an improvement and an enhancement of the existing scheme, rather than the radical change which is now contemplated. For I believe, as the White Paper itself acknowledges, that over the years the Criminal Injuries Compensation Board has served a most useful function in dealing with an ever increasing number of claims. As has been said tonight, the board deals with 80 per cent. of cases within nine months of receipt, and the main cause of any further delay is a need to obtain reports 1102 from police and medical authorities. But, as has again been said tonight, all that will be needed under the new scheme. I believe that the scheme, as at present constituted, on the whole meets the criteria of speed and simplicity in so far as it is able to do so and will still do justice.
Perhaps I may also voice a real anxiety about the way in which the reforms are being introduced. Prior to 1988, the scheme existed on an ex gratia basis. No doubt spurred on by the concerns of such as my noble friend Lord Colnbrook—that it was right to make the scheme statutory—the Government therefore did so in the plainest possible terms by Section 108 of the Criminal Justice Act. That Act made absolutely plain that the general principles which had governed the amount of an award should be the same as those which apply in the courts; that they should be the same as those which the noble and learned Lord, Lord Ackner, described as the common law basis of damages. Those enable, as we all know, account to be taken of individual circumstances, including loss of earnings. I refer, as did the noble Lord, Lord Irvine of Lairg, to Section 111 and to Schedule 7, paragraph 8. It is as plain as a pikestaff what Parliament had in mind. It was a very clear endorsement, at the instigation of the Government, of the principles on which this scheme had operated for almost 25 years.
There had been ample experience of the scheme; it was endorsed and Parliament exercised its sovereignty. But what has happened? Because of the absence of statutory procedural rules, the legislative scheme has never been put into effect. It is to be left dangling. unloved, unused and ignored, on the statute book. The Government now propose to ignore what would seem to me to be their clear statutory obligation to bring the scheme into effect. They also propose to depart, again without the consent of Parliament, from the ordinary principles of common law of assessing damages which, as I read the 1988 Act, Parliament expressly enjoined the board to follow. Yet on the radio last week, Mr. David Maclean, the Minister of State at the Home Office, made much of the fact that the scheme he is proposing is a non-statutory one, and that there were no proposals to put it on a statutory basis. Given that we have a statutory scheme, that does not seem to me something of which a Minister ought to be proud.
This departure, without the consent of Parliament, from a scheme enacted by Parliament seems, to put it mildly, surprising. I suspected before the debate that the Government would, if sued by a litigant who could afford to bring proceedings—let us bear in mind the cost—be liable to an action for mandamus requiring them to bring the statutory scheme into effect. But my suspicions have hardened because they have been reinforced by the judgment in this Chamber of at least one distinguished Law Lord. It is always comforting to have a Law Lord on one's side before one has to argue the case.
I thought it right to give my noble and learned friend the Minister notice of my doubts on these constitutional issues so that he could provide the House with the views of the Law Officers as to the legal validity of the present proposal, and I asked whether he would do so. I ask him tonight: have the Government sought their advice; and, 1103 if so, will he allay my concerns and those of the noble and learned Lord, Lord Ackner, by placing their advice, with of course their consent, before the House?
Many of your Lordships have spoken of the inadequacy of assessing damages for injuries suffered through crime under a tariff scheme. As I understand it, the reason that the Government propose to introduce a tariff is that it will bring greater simplicity to the assessment of damages. But what is the price of simplicity? The price is that it will ignore some of the fundamental considerations which ought to be taken into account in determining fair compensation. Some people will get more than under the existing scheme. That is not necessarily fair. But what is much more unfair is that those who lose most from their injury will lose most from the new scheme. That is at the heart of the concerns that have been expressed tonight and it is that which if implemented would bring the scheme into disrespect.
Feeling as strongly as I did about the mistake, I searched the White Paper very hard to see what one could find by way of justification for this approach. Paragraph 10 of the White Paper rightly says that the assessment of damages cannot be an exact science. But it goes on to say that under the common law:the assessment is essentially subjective rather than objective".I believe that this is a fallacy which lies at the heart of the present proposals. Obviously the assessment of compensation involves judgment, but that judgment, to be a judgment, must seek to take into account all the circumstances of the case. That is what true objectivity and true individual justice—and we are still a society that dispenses individual justice—are all about.
Many of your Lordships have given examples of the wholly unsatisfactory way in which the new scheme would operate. I take just two to illustrate my point. First, the loss of the sight of one eye is valued in the same way whether the victim is a girl of eight or an elderly person of 90. Yet the difference in deprivation over a lifetime will be great. This difference in age is not a matter of so-called subjective assessment; it is straight, hard fact.
Secondly, a 30 year-old pilot, firefighter or manual worker may suffer the same injury as a 70 year-old pensioner but additionally suffer disastrous financial consequences for himself and his family. That loss will not be taken into account. Yet surely those facts, too, are hard, objective facts. They are not subjective at all.
It would have been easy to say much more in this vein. The White Paper appears to believe that justice does not require compensation to be matched to individual circumstances. In saying that, it is rejecting totally the approach developed by the courts for damages for negligence throughout this century. It is ignoring the effects of crime on its victims.
Perhaps I may ask my noble and learned friend the Minister some more questions. In one sense I apologise because he has been set a stiff examination paper tonight. Do the Government believe that looking at individual circumstances is less fair than a tariff system? Do they consider that a tariff system, even if buttressed by social security, fairly takes account of the 1104 losses sustained by individuals? And are not those worst hit by their injury going to be the biggest losers? If they are, how can that be a fair acknowledgment by society of the damage suffered by individuals?
Most of the speakers in the debate are lawyers, but I am glad to say that we are buttressed by the good sense of non-lawyers. In the broadcast last week, to which I referred earlier, Mr. David Maclean appeared to suggest that many of the anxieties voiced were being expressed by lawyers and, of course, it was lawyers who stood to lose income by the change. That is an argument, I believe, of some desperation. I wonder on what basis Mr. Maclean would brush aside the anxieties of the nurses which have been expressed to all of us. In responding, I ask my noble and learned friend firmly to disclaim that eccentric argument and to acknowledge that the views of lawyers who have practised in this field have some weight as well as the views of non-lawyers.
I began by praising the Government. I hope that they will be willing to listen. I hope that this debate will give them the chance to think again. I also hope that they will reflect on the fact that Parliament has enacted a statutory scheme which requires that compensation should be assessed by taking account of individual circumstances on a now well-recognised basis.
I conclude as I began. I am proud that the Government I support have a good record, until this day, in this area. I hope that we shall be able to say that after All Fools' Day they will continue to have a good record.
§ 11.4 p.m.
§ The Earl of Longford
My Lords, I feel abashed in such company although a good and encouraging word has been said about the good sense of non-lawyers. Beside me sits one eminent lawyer and another has just spoken. I believe that they have collaborated very fruitfully in the past. We have all this eminent legal wisdom.
I speak from a slightly different angle, and I am not the only non-lawyer to speak. People often come up to me and say,"You seem very sweet on criminals. What have you done for the victims?" I feel entitled to reply,"I reckon that I have done a lot more than you have", and I am very seldom wrong, if ever.
The noble Lord, Lord Alexander, mentioned with great pride the achievements of the Conservative government in 1964 and said that they were responding to the findings of the committee of Justice. Perhaps it escaped his notice that I was the chairman of that committee and was then, as now, a Labour Member. Soon after that, I introduced the first debate on victims to be held in my time as a Member of your Lordships' House. When the then Lord Chancellor introduced that measure, he acknowledged the influence of the committee of Justice, over which I presided, so I am afraid that I am not going to give the Conservative government a monopoly on glory because of the production of the 1964 measures.
Later, in 1978, I formed a committee; and in 1979 I introduced a Bill into this House. I do not know how many of the eminent people around me have introduced a Bill into this House. The noble Lord, Lord Mishcon, has been a supporter of mine from the early days of the 1105 work of that committee and in connection with that Bill. The Bill was not taken over by the Conservative Party. I withdrew it on the perhaps optimistic assumption that the Government would do something quite big for victims. I should say in passing that that committee and the Bill owe a great deal to the work of the Matthew Trust which has been so very helpful to victims over so many years. Well, years have passed and something has been done for victims but no one would seriously think that it is anything like enough.
Soon after the most recent Conservative Party conference, the impression was gained—I think correctly—that the Government were anxious to do less for criminals and more for victims. It was rather a crude antithesis if that is what was in their minds. If one thinks the matter out at all carefully, one realises that better treatment of prisoners and ex-prisoners would reduce crime and would therefore be in the long-term interests of victims.
However, leaving that aside, the Government took it on themselves to do more for victims—or at least gave the widespread impression that they were going to do more for victims. What have they done? Does anyone, not just in this House but in the country, seriously argue that victims will get an improved deal as a result of the 1106 new arrangements? No one in their senses would say that. A few people might say that the position is unclear and it is possible that things might work out better than we think. But, on the face of it, victims are damaged and what appeared to be a pledge to do something for victims has been betrayed in the recent proposals.
I shall not go on at this time of night. Like others, I have tremendous confidence in Victim Support, a society which devotes itself to the interests of victims. I rely considerably on people such as Mary Tuck, the chairman; Helen Reeve, the director; arid Martin Wright, the policy director. I have received their guidance and I hope that they will not think that I am letting them down or going beyond the brief that they have offered me if I say that their cautious approach, not very statesmanlike, does not, in the light of this debate, take us far enough forward. They are of course bound to be vigorously critical of the proposals, as many of your Lordships will know, but they expressed the hope that I would call on the Government to pause to give time for consultation and reflection before the proposals are brought into operation. In the light of this debate, I hope that they will allow me to go much further than that and to back up all those who have called on the Government to take away this wretched thing and forget all about it.
§ 11.9 p.m.
§ Lord Brightman
My Lords, I shall not prolong the debate for more than a few moments because, inevitably, what I say is bound to be repetitive. I feel bound to say that I believe that the White Paper is a misguided attempt to circumvent the will of Parliament. The facts are brief and speak for themselves. A non-statutory scheme was introduced in 1964. It was a term of that scheme that compensation for the victims of criminal violence should be based on the loss and damage suffered. Twenty years later the Government rightly decided that the scheme should be statutory, so the 1988 Act was passed to place the scheme on a proper statutory basis. That Act specifically directed that compensation should continue to be paid on the basis of the loss and damage suffered by the victim. As the noble Lord, Lord Alexander, has said, that is spelt out in clear terms in paragraph 8 of Schedule 7.
Now the Government refuse to bring the statutory scheme into operation. They state that they intend to recast the non-statutory scheme on a basis other than that of the loss and damage suffered by the victim. Is that not a case of the Executive defying the will of Parliament? Is it not the proper course for the Government to introduce a Bill which contains the new tariff-based scheme, if that is what the Government want; a Bill which both Houses of Parliament can debate and amend if desired and, if thought fit, enact in the usual way? Or is the Executive to be allowed to take over the functions of Parliament? As has already been said, there are some £ 150 million at stake. The application of that amount of money should surely be controlled by an Act of Parliament and not by a White Paper.
I am sure that most of us here are extremely grateful to the noble and learned Lord, Lord Ackner, for introducing this debate. There is just one matter which I wish to add in conclusion. I have been asked by the noble and learned Lord, Lord Morton of Shuna, to apologise for the fact that he has had to leave the debate before the end because he has to carry out his duties north of the Border.
§ 11.12 p.m.
§ Lord Ewing of Kirkford
My Lords, it is becoming a regular feature of your Lordships' debates that the Government fail to attract one single supporter from any section of the House on very important issues. That was so on the Bill to privatise the railways on the question of the railway workers' pension scheme and the ability of British Rail to bid for the franchise. It happened on the education Bill in relation to student unions and the control over universities, and again only recently on the Police and Magistrates' Courts Bill.
One would think that the Government would learn from that, but they come back like punch-drunk boxers asking for more. The unfortunate Minister who has been put up tonight to accept, as my noble friend Lord Macaulay said, the legal mugging has the sorry task of replying to a debate in which the Government's 1108 proposals have been absolutely taken apart. I cannot imagine for a moment what kind of brief the Minister has been given to enable him to respond to the debate.
I do not bring with me any legal qualifications for speaking in the debate. However, I bring 32 years' experience of helping public sector workers. I declare an interest in that I have retained both an interest in and my membership of the Union of Communication Workers. I should like to speak briefly on its behalf tonight and to express its fears. I was delighted to hear my noble friend Lady Dean raise the question of nurses. My noble friend Lord Macaulay and the noble and learned Lord, Lord Nolan, in an admirable maiden speech, raised the question of police officers.
I wish to refer to one more sector of public service workers; namely, postal workers. Over the past three years the Union of Communication Workers has sent 1,200 to the Criminal Injuries Compensation Board for its consideration; namely, postmen, postwomen and counter clerks. In the previous three years the number was much smaller. The fact that 1,200 cases have been sent over the past three year is an indication of the increasing violence that society in this country has to tolerate.
My union is deeply concerned about the proposed tariff scheme to be introduced on 1st April. Examples have been given by the noble and learned Lord, Lord Ackner, who I thank for initiating the debate this evening. I should like to cite three examples from the casework of the Union of Communication Workers, which has a specialist department—the legal and medical department—dealing with those matters.
In Sheffield recently there was the tragic case of a postman aged 52 years, David Hinds. He was going about his duty in one of the Sheffield suburbs, clearing mail from a postbox. He was attacked viciously by a violent thug, beaten unconscious and then, it is suspected, was run over by his own postal van. Tragically, the culprit who committed that heinous crime has not yet been apprehended. That man had provided 31 excellent years' service as a postman. The reward for the apprehension of the person who committed the crime was £ 50,000 made up of £ 25,000 from the Post Office, doubled to £ 50,000 by the Daily Mirror. Both organisations are to be commended for their public-spiritedness in putting up such a reward. But the irony is that the reward for the apprehension and conviction of the criminal is three-and-a-half times the amount which the victim's widow will receive under the scheme which the Government propose to introduce on 1st April. That cannot be right. The reward is right but the tariff scheme cannot possibly stand up to that kind of examination.
A postman who was delivering valuable packages in the West Midlands was beaten so badly over the head with an iron bar some years ago that he is now receiving constant medical care and attention because of the serious injuries that he sustained. Under the old scheme that was taken into consideration and the award was made accordingly. Under the new scheme that constant care is not allowed for.
Here in London a counter clerk, a lady, had acid thrown in her face. Fortunately, she recovered from the 1109 injuries that she received as a result of that; but she did not recover from the scars on her mind. Again, that lady is in need of constant attention for a psychiatric problem. She is being taken care of under the existing scheme; but she would certainly not be under the tariff scheme which will be introduced on 1st April.
I could go on quoting case after case where the Criminal Injuries Compensation Board has considered and awarded on merit the requests that were made as a result of a case being referred. But that will not happen under the proposed new scheme. It may be a little ungenerous of me, but I cannot avoid the feeling that somewhere someone in the Treasury has the impression that anyone who receives £ 250,000 from the CICB has somehow or other won the pools. The money does not heal the sick and it does not cure the damaged mind, but it does help to make life a little more tolerable for the victims of violent crime.
I shall turn now to the parliamentary situation. It is outrageous. There can be no defence for what the Government are doing without parliamentary approval. A Minister rises at the Dispatch Box in another place and sets aside a scheme that has been in place, as the noble Lord, Lord Alexander, said, since 1964. There is no parliamentary order; indeed, we do not even have the opportunity to oppose an order under the negative resolution procedure.
As regards the request of my noble friend who spoke before me, the Government will not introduce legislation for the tariff because that would put it on a statutory basis. That is the very thing that the Government are seeking to avoid as Mr. Maclean said in his radio interview. As I said, there is no parliamentary procedure involved. The Minister merely rises at the Dispatch Box, sets aside a scheme that has been in place since 1964, and tells us that the tariffs will come into effect on 1st April.
In an attempt to be helpful to the Minister, my noble friend Lord Mishcon made a few suggestions. I shall follow his good example and try to be equally helpful to the Minister. My noble friend Lord Irvine of Lairg made the point that the Criminal Justice Bill is before another place at present. On Monday of this week, the Government tabled 17 new clauses to that Bill. I suggest to the Minister that they should put forward one more new clause. If the Government are so sure of their ground and if they are so confident that they could command majority support in both Houses for the proposals, I ask the Minister to table a further new clause to the Criminal Justice Bill repealing the appropriate section of the 1988 Act. That would give both Houses the opportunity to debate, consider and decide the matter. In many ways, it would get the Government off the hook.
However, my view is that the Government know that they cannot command majority support for what they are doing and, therefore, they will not table a new clause. There will not be another legislative opportunity to repeal the appropriate section of the 1988 Act. They have the legislative opportunity at present through the Criminal Justice Bill. As my noble friend Lord Mishcon said, the Minister should throw away the brief that has been written for him. For goodness sake! I hope that he 1110 does not read it. He should just rise to his feet and tell us that the scheme will not be implemented until Parliament has decided to repeal the appropriate section of the 1988 Act. That is not long in the future; indeed, it could be done before we rise for the Summer Recess. It would not mean a long delay. It is a reasonable proposition.
The Minister has no grounds for refusing the proposition that I put to him. If the scheme is introduced on 1st April without any consultation—and there has been no consultation—not only will trade unions be up in arms about it, but people the length and breadth of the country who are the victims of crime in all its forms will oppose what the Government are doing. The Government will have neither the consent of Parliament nor that of the people.
§ Lord Bridge of Harwich
My Lords, I shall take up only one minute. I had not put down my name to speak in this debate because I had every confidence that those who had would make all the points that needed to be made, and that confidence was fully justified. I rise for one reason only and that is because, as far as I can see, I am the only lawyer in the House who has not uttered, and I am suddenly assailed by the hideous thought that my silence might be interpreted as dissent. Far from dissenting, I cordially agree with everything that has been said by other members of my profession.
I cannot understand how any member of the profession could fail to condemn the White Paper's theme. I find it incomprehensible that anyone, lawyer or layman alike, should think it fair and right that the victims of criminal violence should be substantially less generously compensated at the expense of the. taxpayer than the victims of civil torts are compensated at the expense of those who pay insurance premiums. There are two lawyers still to speak. I suspect that one of them will certainly be on my side and I wish I thought the other one was too.
§ Lord Callaghan of Cardiff
My Lords, the noble and learned Lord, Lord Bridge of Harwich, has started a bad habit, because how can I be left out now? I have followed the noble and learned Lord, as he knows, on many occasions and indeed regard my conscience as very much in his keeping. I entirely agree with what the noble and learned Lord says and I want the Minister to know that he has no friend in me. I ask him seriously to deal with the question which I put to my noble friend earlier as to whether the Government will get in deep legal waters on this matter. I hope he will also answer the question put by the noble Lord, Lord Alexander, about the advice of the Law Officers on a matter of this kind. I say that in no cynical spirit.
§ 11.27 p.m.
§ Lord Lester of Herne Hill
My Lords, I wonder whether the best service I can do for the House is to remain seated for as long as possible so that other noble Lords may also intervene. We are all greatly indebted to the noble and learned Lord, Lord Ackner, for having made possible this quite remarkable debate His Question tests not only the extent of the Government's commitment to the interests of the victims of violent 1111 crime but also the extent of the Government's commitment to the most cherished principles of our unwritten but still paramount constitution; namely, to parliamentary sovereignty and to the rule of law.
The Government did not intend that there should be any parliamentary debate before their proposals for replacing the existing scheme came into force. That was made quite clear in the reply of the noble Earl, Lord Ferrers, to my Starred Question on 20th January. But for the initiative of the noble and learned Lord, Lord Ackner, there would have been no parliamentary debate about these controversial proposals to replace common law and statutory principles with a mechanical, unfairly discriminatory and devalued tariff system.
The debate has demonstrated deep anxiety and justifiable concern from all parts of the House, both as regards what the Government are doing and also about the manner in which they are seeking to do it. Statements of commanding authority have been made by eminent judicial members of the House. I wish to pay my own tribute to the maiden speech of the noble and learned Lord, Lord Nolan, who has spoken with such charm, clarity and persuasive force, reinforcing, in the non-contentious way customary for maiden speeches, the trenchant, quite devastating and unanswerable criticisms made by four Law Lords: the noble and learned Lords, Lord Ackner, Lord Simon of Glaisdale, Lord Brightman and Lord Bridge of Harwich, together with a distinguished member of the Court of Session, the noble and learned Lord, Lord Morton of Shuna, and the devastating criticisms from the Labour Benches by the noble Lords, Lord Irving of Lairg and Lord Mishcon, the noble Baroness, Lady Dean, the noble Earl, Lord Longford, and the noble Lords, Lord Macaulay and Lord Ewing. Powerful and well-informed anxiety has also been voiced by the outstanding Chairman of the Criminal Injuries Compensation Board, the noble Lord, Lord Carlisle, and by loyal supporters of the Government, including the noble Lords, Lord Colnbrook and Lord Alexander of Weedon.
The noble Lord, Lord Alexander, speaks for justice—with a capital as well as a small "j". As the noble Lord reminded us, it was Justice whose all-party committee, chaired by the noble Earl, Lord Longford, made pioneering proposals for a fair and workable scheme in 1963.
Given the lateness of the hour, I shall concentrate on the constitutional impropriety of what is proposed. I shall not repeat what has already been said about the manifest unfairness and injustice of what the Government intend for the greatest victims of violent crime. The noble Baroness, Lady Dean, called it a heartless and cruel approach.
Nor will I respond to the unworthy suggestion made on the radio last week by the Minister of State at the Home Office, Mr. David Maclean, that the strong tide of public opposition to the Government's proposals reflects the interests of the legal profession rather than the interests of the victims of violent crime.
Even when the scheme was first introduced 30 years ago real doubts were expressed in this House by Lord Gardiner, Baroness Wootton, Lord Parker of 1112 Waddington and Lord Silkin and in the other place by Sir Frank Soskice and Mr. Niall MacDermot about the constitutional propriety of acting under prerogative powers rather than seeking statutory authority. Those doubts were also the focus of a debate in this House in December 1983 initiated by the noble Lord, Lord Allen of Abbeydale, with powerful support from, among others, the noble and learned Lord, Lord Bridge, and the noble Lord, Lord Campbell of Alloway.
In her reply to that debate the noble Baroness, Lady Trumpington, very properly accepted on the Government's behalf that Parliament should have the opportunity to consider in detail and to approve in formal legislation the general composition, functions and procedures of a board in which was placed such trust and responsibility.
Five years later, as your Lordships have repeatedly emphasised, Parliament enacted a comprehensive scheme based on common law principles of compensation which have full regard to the particular circumstances of individual victims. It did so in the Criminal Justice Act 1988. The statutory provisions were described by the then Home Secretary, Mr. Hurd, as being designed to improve the circumstances of the victims of violent crime.
The enactment of those provisions in 1988 meant two things: first, that Parliament had at last removed the unique constitutional anomaly whereby many millions of pounds of public funds were being spent under prerogative powers without any parliamentary approval of the substance of the scheme itself; and, secondly, that what had for 24 years been a mere privilege or expectation of receiving compensation as some form of government bounty became a right to compensation—a matter of statutory entitlement, a right, as the noble and learned Lord, Lord Simon of Glaisdale, indicated, which is inherent in belonging to a liberal society.
All that remained was for the Home Secretary to exercise his power, as Parliament clearly intended, to bring the relevant provisions of the 1988 Act into force by statutory instrument so as to translate them into enforceable statutory rights. That was surely the reasonable expectation created by the Government in asking Parliament to enact a statutory scheme. That was surely what Parliament expected would happen.
However, Parliament might just as well have written the statutory language in water; for what the present Home Secretary, like his predecessor Mr Kenneth Clarke, has decided to do is to flout the will of Parliament, to frustrate the purpose of the statute, and to act in breach of the legitimate expectations of victims of violent crime that they would continue to be compensated on the basis of the just principles of the common law.
Mr Howard has announced that he will never bring the statutory scheme into force but will ask Parliament to repeal the statutory provisions upon some future and as yet unspecified occasion. The Home Secretary has informed Parliament, via his White Paper rather than in person, that he will use his ministerial prerogative powers to introduce an entirely different scheme, no longer focused on the particular circumstances of the individual victim: a scheme which gives the victim no 1113 statutory right to compensation, and which can therefore be changed again at the pleasure of Ministers if the Treasury and the Home Secretary think fit.
If the Home Secretary has his way, Parliament will not he asked to approve these proposals, except, as the noble Lord, Lord Colnbrook, said in the formal and technical sense that parliamentary approval will be needed under the next Appropriation Act after the scheme has been brought into force on 1st April for expenditure meanwhile incurred under the new scheme. I am wholly unclear as to the basis upon which the Government intend to obtain proper parliamentary authority for expenditure incurred meanwhile under this wholly new scheme. I should be grateful if that were clarified in the noble and learned Lord's reply. Last year's Appropriation Act authorised expenditure under the existing scheme. But where, I wonder, is the legislative authority meanwhile for expenditure upon this new and entirely different scheme?
When Parliament has intervened and has provided by statute for powers previously within the prerogative to be exercised in a particular manner, and subject to the limitations and provisions contained in the statute, it is not self-evident that the Home Secretary can, merely at his pleasure, disregard the statute and fall back on the prerogative, without parliamentary authority, to introduce a wholly different scheme.
I therefore share the very great doubts expressed by so many of your Lordships, including four Law Lords and a member of the Scottish Court of Session, and the noble Lords, Lord Irvine and Lord Alexander, about the constitutional and legal propriety of what is here intended. By purporting to act under the prerogative the Home Secretary no doubt hopes to avoid or weaken the possibility of judicial review, contending that he is taking a decision which is not justiciable and that what he does is a political matter wholly for Parliament. Yet at the same time he refuses to obtain parliamentary approval for his abandonment of the 1988 scheme and for his abandonment of the common law principles in the existing ex graiia scheme.
The. Home Secretary thereby seeks to avoid both effective judicial review and effective parliamentary scrutiny. He seeks to do so even in the absence of war or of a state of public emergency which might justify such a major departure from the essential principles and conventions of the modern British constitution. As yet he has given no reason for acting under the prerogative, without seeking parliamentary authority, or without seeking to repeal the statutory scheme which he treats as stillborn.
There is a yet farther objection to what the Home Secretary proposes. The noble Lord, Lord Irvine of Lairg, and the noble and learned Lord, Lord Morton of Shuna, have quoted from Article 4 of the European Convention on the Compensation of Victims of Violent Crimes. I agree with them that Article 4 plainly requires the United Kingdom to provide compensation which covers,according to the case under consideration"—that: is, according to the particular circumstances of the individual case— 1114at least … loss of earnings … and, as regards dependants, loss of maintenance".Like the noble Lord, Lord Irvine, and the noble and learned Lord, Lord Morton, I do not understand how the tariff scheme, which merely reflects an element of loss of earnings based on the board's past award levels, can properly satisfy this treaty obligation which is binding upon the United Kingdom in international law.
Like several of your Lordships, I have therefore written to the noble and learned Lord, Lord Fraser of Carmyllie, giving notice of my doubts on the constitutional and legal issues, so that he can provide the House with the views of the Law Officers on those matters. The specific questions in the examination which I have raised are these, and they are two: first, how is the Government's proposal to introduce a new scheme under the prerogative, without obtaining prior parliamentary approval, (a) consistent with the intention of Parliament in enacting the relevant provisions of the 1988 Act; (b) in accordance with the constitutional requirement of clear statutory authority for public expenditure; and (c) in accordance with the principle of parliamentary sovereignty or supremacy?
My second question is: how is the Government's proposal to introduce a compensation scheme not based on the individual circumstances of particular victims in accordance with the international obligations imposed on the United Kingdom when ratifying the European Convention?
I look forward to hearing the noble and learned Lord's response to these questions and to the many other questions raised by your Lordships. I am the sixteenth speaker in this debate. Not one of us has felt able to support the Government's intended course of action:. not even one. If parliamentary government and ministerial accountability mean anything, the Government should surely take note of their unsplendid isolation in this wise, fair-minded and independent-minded House. I hope that even at this very late hour the Government may think again, for the sake of the victims of crimes of violence and for the sake of the constitutional rights and liberties of us all. If not, then I submit that there will be a pressing need for Parliament to exercise its sovereign powers to prevent the serious misuse of ministerial powers—quite unprecedented in peacetime. Otherwise, in the memorable words of the noble and learned Lord, Lord Brightman, the Executive will have taken over Parliament.
§ 11.42 p.m.
§ Lord Fraser of Carmyllie
My Lords, I am very grateful to the noble and learned Lord, Lord Ackner, for giving us this extended opportunity, as it has turned out to be, to debate the Government's plans for changing the system of compensating those who are injured as a result of violent crime. Perhaps I may join in paying my compliments to the noble and learned Lord, Lord Nolan, on his maiden speech. It was not only calm and learned; it was delivered with such forensic skill that his powerful contribution was heard without in any sense offending the conventions of the House in respect of such a speech.
1115 This is an area of considerable interest and concern, as has been evident from the many contributions made to the debate. That is as it should be, since we are talking about a matter which affects those who have the misfortune to become the innocent victims of crime. I hope, and I am sure, that all your Lordships share the Government's concern to safeguard the interests of such victims. That concern is manifested in many ways—by accepting all the Royal Commission's recommendations relating to victims; by introducing measures in the Criminal Justice and Public Order Bill which is currently before another place; by providing generous financial support to the national charity, Victim Support; and by supporting the Criminal Injuries Compensation Scheme itself.
We are not the richest country in the world and we are certainly not the most violent. Nevertheless, our current scheme pays out in compensation more than all European Union countries put together. It is indeed the most generous scheme anywhere in the world, as my noble friend Lord Alexander of Weedon pointed out. It is a scheme of which we can be proud.
It is also a scheme which was designed for a different time and which now needs to change to reflect current circumstances. When the scheme was introduced the number of applications with which it had to deal was very much less—something like 2,500 in the first full year. It dealt with about 66,000 applications in 1992– 93 and the number is likely to approach 70,000 in the current year,1993– 94.
Even looking back over a shorter period there has been a dramatic change. In 1987– 88—a year obviously of some significance in this context—the scheme made awards in about 21,000 cases. Five years later, by 1992– 93, there had been a 75 per cent. increase in the number of awards, coupled with a threefold increase in the amount of compensation paid.
And, of course, victims' expectations have changed. They want their awards to be paid quickly so that they can try to put the incident behind them and, in common with other members of society, they want—and are entitled to expect—systems to be both open and understandable. For all those reasons we believe that the current system needs to change. We believe that others share that view, including those within Victim Support, although there are many differences of opinion about significant details of the changes.
The new scheme will be simpler and easier for the victim to understand. A victim applying for compensation under the new scheme will know with some certainty what level of award he or she might receive. This is not the case at present when each case has to be considered in detail to arrive at a figure which attempts to reflect the special circumstances of the individual.
The new scheme will also be quicker. Despite the best efforts of my noble friend Lord Carlisle and his colleagues—I pay tribute to them for the greater efficiency that they have achieved in recent years—there remain inevitable delays that are built into the current system. Many cases still take over a year to resolve and some drag on for years. The very issue which has caused so much controversy, namely, the question of whether 1116 loss of earnings should be specifically allowed for, is one which accounts for considerable delay under the current scheme since detailed information is required from different sources and complex calculations have to be carried out. That will no longer be necessary.
Nor will it be necessary for medical reports to be as detailed as in the past. And it should be possible to speed up police reports. No reductions will be made to take account of benefits, thus removing the need for no fewer than 27,000 inquiries made annually to the Department of Social Security. All of this means that applications should be decided more quickly. Some noble Lords, like my noble friend Lord Colnbrook, may question whether this speeding up will actually happen. All that I can say is that we believe that it will; and in order to help ensure that it does, we shall be setting the new authority some demanding targets, which will of course be made public.
There will also be a new system for reviewing decisions. Unlike the current system, under which the Criminal Injuries Compensation Board is seen to act as both judge and jury, there will be a separate appeals panel, which is to be chaired by Mr. Michael Lewer QC, a respected member of the existing board who will bring much valuable experience with him. To the noble Lord, Lord Nolan, who asked whether others from that board might join him, I would say that that is very much in contemplation. There will therefore be a wholly independent system of appeal and one that will be seen to be so.
Although the basis of the scheme is being changed, the rules of eligibility will be broadly the same as at present, so that anyone who currently qualifies for an award will be likely to do so under the new scheme. Indeed, the rules of eligibility are being relaxed in one or two respects.
Finally but very importantly in this matter, we estimate that the majority of applicants will receive as much or more under the new scheme as they would have done under the existing one. Current estimates suggest that about 54 per cent. of applicants will be in that position. That will be achieved while at the same time making future costs more predictable and producing some cost savings in the longer term. Bearing in mind the spiralling costs in the past, some action is needed. Once the changeover to the new scheme has been completed, expenditure on compensation will continue to rise, but not at the same rate as might have been expected under the current scheme.
By the end of the decade we expect to be spending something in the region of a quarter of a billion pounds annually under the new scheme. Without the change, the annual total could be at least double that sum. Even then, ours will remain, as it is at present, the most generous scheme anywhere. It is only right that we should seek to provide a scheme which is fair to both victims and the taxpayers who fund it. I trust that those who wish to retain the status quo will have both the intellectual and political honesty to acknowledge that there are very significant costs involved, and if they wish to retain the status quo, their commitment to its funding will indeed be unequivocal.
The noble and learned Lord, Lord Simon of Glaisdale, suggested, and in customary style argued 1117 vigorously, that such compensation might extend beyond personal injuries. Given the figures that I have already indicated, the cost would seem to me to be prohibitive.
§ Lord Simon of Glaisdale
My Lords, perhaps the noble and learned Lord will allow me to remind him that I expressly said that that could not be done now.
§ Lord Fraser of Carmyllie
Indeed, that is what I was at the point of indicating. It would indeed be prohibitive.
It has been suggested that, by changing the scheme in the way now proposed, the Government are disregard-ing the wishes of Parliament, and indeed that the Government are acting improperly. The noble and learned Lord, Lord Ackner, with an unusual figure of speech for him, described what we were doing as an abuse of power. Indeed, the noble and learned Lord, Lord Brightman, if I recollect correctly, indicated that it was a misguided attempt to circumvent the will of Parliament.
It is true that we have not brought into force the provisions affecting criminal injuries in the Criminal Justice Act 1988—because initially the Criminal Injuries Board specifically asked us not to do so—but we do not believe that, in failing to implement those provisions and in introducing a new scheme, the Government are in any way acting improperly.
When Parliament made provision for the existing scheme to be placed on a statutory basis, it placed no obligation on the Secretary of State as to when such a scheme should be implemented. We must all recognise that as time passes, so circumstances change. The figures that I have already given of the increase in cost and number of applications are there for all to see. That has certainly been the case. The fact that an unimplemented scheme remains on the statute book cannot and must not inhibit the Government from taking what they now believe to be the right course of action. The current scheme is an executive one. It can be, and has been in the past, amended by executive action.
The noble Lord, Lord Irvine of Lairg, indicated that he considered that the Government would get their fingers burnt in the courts. I was interested to hear what a distinguished lawyer had to say of the matter and was interested to know whether what he said was a general proposition or one chat applied in this matter alone. I regret to say that I did not see, as did the noble Lord, Lord Mishcon, four heads nodding in agreement with him. I wish that I had.
§ Lord Lester of Herne Hill
My Lords, will the noble and learned Lord allow me to ask a question? During the course of the debate several noble Lords raised the point that we had given notice of questions and asking that the Law Officers' opinion be placed before the House. The noble and learned Lord indicated that the noble Lord, Lord Irvine of Lairg, is a distinguished lawyer—as indeed he is—but it would be helpful to the whole House if one could have the opinion of the Law Officers as to the legal and constitutional propriety of what is proposed placed before us. Several noble Lords made the point that the circumventing of parliamentary 1118 authority seems to be unconstitutional and unlawful. It would be extremely helpful for the opinion of the Law Officers to be given to the House on that question.
§ Lord Fraser of Carmyllie
My Lords, as a former Law Officer I am well aware of the conventions that attach to their opinions. I am certainly not in a position either to confirm or deny having received such advice. As the noble Lord, Lord Lester, appreciates, I certainly could not do that without their consent, and that I do not have.
§ Lord Simon of Glaisdale
My Lords, I am most grateful to the noble and learned Lord, who has, as he said himself, been a senior Law Officer. Surely the opinion of law is frequently cited to Parliament. There is a famous example in relation to an amendment to the Maastricht Treaty, and there are many more recent examples.
§ Lord Fraser of Carmyllie
My Lords, the noble and learned Lord rose to his feet before I concluded what I was saying. I remember that incident well enough. I also remember an earlier occasion on which an opinion of a Law Officer was cited without his explicit approval, with rather drastic consequences.
What I say to the House is that we do not believe that we are acting improperly. We do not accept that anything has been done which breaches the law or that what we have done is inappropriate. Obviously, unless or until that is tested in the courts—if that is what some individual wishes to do—it cannot be a wholly definitive view.
§ Lord Callaghan of Cardiff
My Lords, perhaps the noble and learned Lord will allow me to intervene, which I do with great reluctance on this matter. But it seems to me that this is a matter that concerns parliamentarians as well as lawyers. Does not the noble and learned Lord think it right that he should convey to the Law Officers the concern expressed in the House tonight? Can he secure from them release of their opinion?
It seems to me, if I may say so, with respect, that the Government may be plunging into uncharted waters on this matter. The House has the right, surely, to ask that the Minister convey that feeling to the Law Officer, and that Parliament be informed whether or not the Law Officer has given an opinion. If so, why cannot it be released? If there is a good reason why it cannot be released, then we shall understand. But it is an important constitutional issue in which those of us who are not lawyers are just as much concerned as those who are.
§ Lord Fraser of Carmyllie
My Lords, I shall certainly convey that view. But I must be clear, as I indicated earlier, that I neither confirm nor deny, as I think I am bound to, whether or not such an opinion has already been obtained. I was also interested to discover exactly what it is that your Lordships' House wishes to ascertain. As I am sure the noble Lord will know from his long experience, there are many statutes that have been passed in recent decades, whole parts of which have never suffered or received—
§ Lord Ackner
My Lords, it is not the non-passing of the provisions of the Criminal Justice Act 1988 of which one is complaining. There may be many reasons for delay in not carrying out Parliament's intention. We are concerned with repudiating Parliament's intention by saying,"We refuse to carry out Parliament's intention. We propose to go off on a frolic of our own without any parliamentary support". I should be very grateful if my noble and learned friend would address his attention to that part of the complaint; the refusal to carry out what is laid down in the 1988 Act and the assertion of an entitlement to do something different, deferring the accepted obligation, as set out in paragraph 38, some time to get the provisions revoked in Parliament.
§ Lord Fraser of Carmyllie
My Lords, I can only say at this time that the Government do not consider that anything they have done, or propose to do from 1st April, would be improper. However, I am most grateful once again to the noble and learned Lord for so clearly articulating the point that he considers ought to be addressed. I can only say to him though, as I have already said, that, whatever view might be expressed within government or indeed with the high authority of Law Officers, ultimately any definitive view on such a matter would have to be expressed in the courts. If I may say so, as it is now after the hour of midnight, perhaps I may carry on to my conclusion.
§ Lord Ackner
My Lords, I am bound to intervene once again, and it will be the last time. A number of us have, on paper, asked the noble and learned Lord, with good advance notice, to indicate how he justifies the Government's assertion that they are acting lawfully. All he has done is constantly to repeat that the Government take the view that they are acting lawfully. Our question was: would you tell us on what basis you justify that assertion? To that we have had no reply, and that is within the Unstarred Question.
§ Lord Fraser of Carmyllie
My Lords, the noble and learned Lord may think that it is an unsatisfactory answer. But I have indicated that the particular provision of the 1988 Act has not been commenced. The Government accordingly believe that the current scheme, which remains a scheme that does not have a statutory basis, is an executive one and can be thus amended by executive action, as indeed has been done in the past. If there are noble Lords, or indeed if there are individuals outwith the House, who believe that that proposition is an incorrect one, I can only say in repetition that the way to secure a definitive answer to the point is to take the matter before the courts. I do not really believe I can elaborate upon it any further.
§ Lord Carlisle of Bucklow
My Lords, if my noble and learned friend is leaving this matter, he again reiterated the fact that he said that the request that the 1988 Act should not be implemented had come specifically from the Criminal Injuries Compensation Board. Will he make it clear to the House that that was based on the fact that it was felt that to implement it at that particular moment of time would cause consider-able delays when we were facing an increasing backlog and had just taken on a number of new staff? Will he 1120 accept from me that it was never the intention of either of the parties—certainly not of the Criminal Injuries Compensation Board and, as far as I know, certainly not of the Government at that stage—that the scheme would not be implemented at the appropriate moment? In answer to the views of the Select Committee which said that they were satisfied that the scheme should not be put on a statutory basis at present, the Home Office said:The Government welcomes the Committee's agreement that the Scheme should not be put on a statutory footing for the time being".Was not that intended to imply that at the appropriate moment it would in fact be put on a statutory basis by the commencement order being implemented?
§ Lord Fraser of Carmyllie
My Lords, in first referring to the view of the Criminal Injuries Compensation Board, if I did not say originally that it was not implemented as a result of that request I am more than content to accept that the narrative that my noble friend has given to your Lordships explaining why it was that request was made and why, I believe, he gave evidence to the Select Committee, is indeed a correct one. I hope that there is no dubiety about that.
A further aspect of this matter relating to legal or constitutional issues was in relation to the European Convention which the noble Lord, Lord Lester, and others, raised. We do not accept the argument that by breaking the link with common law damages and not including a separate element for loss of earnings, we are in effect producing an unfair scheme or one which contravenes the European Convention on the compensa-tion of victims of violent crime. I assure both him and the noble Lord, Lord Irvine of Lairg, that we are sending full details of the new scheme to the Council of Europe, as we are required to do in discharge of our international obligations under that convention. We shall naturally take careful note of anything it has to say in reply.
In any event, we would argue that the tariff scheme, as the noble Lord, Lord Lester, seemed to appreciate, incorporates an element for loss of earnings and other heads of damage currently payable, although these heads are no longer assessed separately. The tariff levels were set by reference to awards made in the recent past by the Criminal Injuries Compensation Board. Those awards include loss of earnings so the tariff awards similarly include an element for loss of earnings although it may be an unquantified one.
As regards the criticism that many people will be worse off because of the change, that is not the case. We have left the lower limit for awards at £ 1,000. That was a figure which was set about two years ago. As I said, the rules of eligibility are broadly left untouched, so the same range of applicants remain eligible for awards.
We have set the upper limit at the very high level of £ 250,000 to cater for the most serious category of injury. Our estimate is this: about 70 per cent. of applicants will either gain or lose no more than £ 500. The simple fact is that most awards are for comparatively small amounts. In 1992– 93,74 per cent. of awards were under £ 3,000; 85 per cent. were under £ 5,000 and only 5 per cent. exceeded £ 10,000. Fortunately, the very serious incapacitating or life-changing injuries are rare indeed. In the past three 1121 years just 21 awards exceeded the upper limit of £ 250,000. Obviously, cases of this sort are very distressing and we all have immense sympathy for anyone unfortunate enough to have suffered such major injury.
But such people can look to other sources or to state help. They can and do receive generous and long-term help from the National Health Service and from the Department of Social Security, as indeed can anyone who has sustained a non-criminal injury or who is unfortunate enough to suffer some comparable misfortune.
It has also been suggested that a tariff scheme cannot take into account differing degrees of injury or cope adequately with certain types of injury such as shock, child abuse and sexual offences. When we looked at the results of the extensive sampling exercise which was undertaken—I think that the noble Lord, Lord Macaulay, referred to it—involving about 20,000 people, the awards made by the board showed that these anxieties were, broadly, not borne out.
The sampling exercise showed clearly that the sorts of injuries mentioned could satisfactorily be categorised and slotted into a tariff scheme with an appropriate level of award. Different degrees of injury could be dealt with by gradations of award for appropriate injuries such as burns, scarring, broken limbs and shock. I am grateful to my noble friend Lord Carlisle for appreciating that the tariff began as a result of the accumulated wisdom of the Criminal Injuries Compensation Board itself.
It was implied that in some respects the award levels in the new scheme were incapable of assessing the seriousness which attached to particular injuries. I can fully understand that. People will have strong and sometimes conflicting views, particularly in relation to child abuse, about which injuries should attract the largest awards. Teat is why we did not attempt to impose our own views; instead we used a tariff system, based on the average awards recently made by the board. A number of examples were given, some of which included a degree of shock. Those who are concerned about the matter may care to look at the tariff which has been prepared where they will see that such a head is included.
We have, of course, considered the alternative approaches suggested by the noble Lord, Lord Carlisle, and others, such as the possibility of having a hybrid system which would apply a system on the retained basis of common law damages to the more serious cases but possibly dealing with minor cases on a tariff approach. Having looked at that and considered whether it would work, we concluded that it would not deliver the simpler and quicker service that we wish to achieve. Nor would it be a system that could be understood by victims. The crossover point would be almost impossible to detennine.
In this complicated field, I am confident that the new scheme is the right way forward. However, I would not wish to claim any monopoly of wisdom. There may well prove to be improvements which can be made in due course. We certainly undertake to monitor the new scheme carefully and to listen to the views of those experienced in the field. Indeed, my right honourable 1122 friend the Home Secretary will be meeting the noble Lord, Lord Carlisle, shortly and will consider carefully any points that he may wish to make. We shall also be ready to consider any longer term developments. I have already indicated to the House that I shall pass on the views that have been expressed with regard to the legal[and constitutional propriety of what we did—
§ Lord Irvine of Lairg
My Lords, before the noble and learned Lord sits down, I wonder whether he would be good enough to confirm that the Criminal Justice and Public Order Bill which is now in the other place provides a legislative opportunity now for dealing with these matters. Will he explain why that opportunity is not being taken by the Government?
§ Lord Fraser of Carmyllie: My Lords, the noble Lord seeks to open up the matter yet again. I have indicated that the provisions of the 1988 Act have not been commenced. They rest. I should have thought that what I said some minutes ago was quite clear. It will, of course, be open to the noble Lord, if he wishes, to take the opportunity to make an unequivocal commitment to the costing of the status quo when that Bill reaches your Lordships' House.
I trust that we can now draw this debate to a conclusion—
§ Lord Fraser of Carmyllie
My Lords, I have given way at least 15 times and now, well after the hour of midnight, it seems to me that I have answered as much as I can, particularly when, as I said, I shall be passing on a number of matters to those involved in offering advice to the Government on these legal and constitutional matters.
§ Lord Alexander of Weedon
My Lords, before my noble friend sits down, and despite his charm, perhaps I may briefly raise one matter before the noble and learned Lord, Lord Brightman, raises a point.
I am sorry to return to the charge, but I should like to raise a point about the advice of the law officers on which I am puzzled and would be grateful for my noble and learned friend's further help. He has told us that he can neither confirm nor deny that the advice of the Law Officers has been taken. That does not tell us very much. I wrote to him on 16th February asking if he would help us tonight and I ended by sayingpreferably with the benefit of the advice of the Law Officers".I should like to ask two questions. First, in the light of that letter, did he ask for the advice of the Law Officers? Secondly, did he ask for the consent of the Law Officers to disclose that advice to the House?
I apologise to the noble and learned Lord, Lord Brightman, for jumping in ahead of him.
§ Lord Fraser of Carmyllie
My Lords, can do no more than return to what I have said and, at the risk of repeating myself, indicate where the Government stand. The noble Lord asked me to indicate whether or not the Law Officers' advice has been obtained. I have indicated that I neither confirm nor deny that. That must be where I rest on this.
§ Lord Brightman
My Lords, perhaps I may ask the noble and learned Lord a question which I think has not been answered. Can he explain exactly why the new scheme is to be introduced by a White Paper and not by an Act of Parliament drafted with appropriate flexibility?
§ Lord Fraser of Carmyllie
My Lords, I invite the noble and learned Lord to read what I have said. I may not have said it very eloquently or elegantly but I have indeed repeatedly attempted to answer that question by saying that it is an executive scheme. It has been modified in the past by executive action, and that is what is proposed to be done in the present circumstances. The noble Lord may not care for it, but I hope that is an explanation for the basis on which it has been done.
§ Lord Mishcon
My Lords, I appreciate that the noble and learned Lord has had an arduous task, to say the least, but will he explain why the Government are afraid 1124 of taking a vote in Parliament? What is his fear? Is his fear that because everybody who has spoken in this debate has shown that they do not favour this scheme it will not get through Parliament? Is that the reason?
§ Lord Fraser of Carmyllie
My Lords, we are beginning to go round the same circle yet again. I was asked a question from the Opposition Front Bench as to whether the Bill that is presently in another place provides such an opportunity. The noble Lord has great ingenuity in putting matters before the House and securing a vote. I have no doubt that if that is what he feels is an appropriate way forward he will exercise that ingenuity for which he is well famed.