HL Deb 06 November 1995 vol 566 cc1602-18

4.10 p.m.

Read a third time.

Clause 2 [Basis on which compensation is to be calculated]:

Lord McIntosh of Haringey moved Amendment No. 1:

Page 2, line 13, at end insert— ("( ) Provision shall be made for compensation to be paid for mental injury alone in accordance with such provisions of the Scheme as may be relevant, but in particular—

  1. (a) mental injury shall not be considered an accidental injury for the purpose of any exclusions from the Scheme; and
  2. (b) provision shall be made for compensation to be paid for mental injury alone where such injury is sustained by a person who, during the immediate aftermath of a crime of violence or offence of trespass on a railway, was involved in containing, limiting or remedying the consequences of that crime or offence, whether or not that person had a close relationship of love and affection with the person who sustained the injury.").

The noble Lord said: My Lords, this is the first of a small and select body of amendments which we have been able to table following the very welcome publication of the second draft of the Criminal Injuries Compensation Scheme and tariff. We express our gratitude to the Government for making it possible for us to see that on Wednesday evening of last week. I am afraid that it has meant that we were not able to table our amendments until Friday, which explains why they are starred on the Marshalled List today. But I hope that, despite that short time, your Lordships will feel that it is desirable and legitimate to raise at this stage of the Bill issues arising from the new draft of the scheme and the tariff.

I emphasise that in all of these amendments which we are putting forward, we are using the text of the Bill to raise issues which we accept will be dealt with in the tariff. That is the way in which we must secure debate in this House on what are still important matters which your Lordships have to consider. &

Amendment No. 1 is concerned with a particular issue of mental injury which is defined in paragraph 9 of the new scheme as a medically recognised psychiatric or psychological illness. Paragraph 9 of the new scheme defines the circumstances in which compensation for mental injury will not be payable by defining the circumstances in which it can be payable by itself; in other words, not accompanied by physical injury or disease.

The four conditions under which compensation for mental injury can be paid are: when the applicant is put in reasonable fear of immediate physical harm; when the applicant has a close relationship of love and affection with the person when that person has sustained a physical injury; thirdly, when the applicant was a non-consenting victim of a sexual offence; and fourthly—I am merely reading out the gist of what the scheme says—when the applicant is employed in the business of a railway and has witnessed an occasion when another person sustained physical injury attributable directly to an offence of trespass. In other words, that is normally a train driver who has had a suicide on the line or somebody in similar circumstances.

So far, so good. Your Lordships may think that those requirements for compensation for mental injury alone might be broadly acceptable. But then, if one looks at paragraph 12 and in particular paragraph 12b, one sees that compensation is not payable for accidental injury by a person who is engaged in any other activity directed to containing, limiting or remedying the consequences of crime unless the person injured was, at the time that he sustained the injury, taking exceptional risk which was justified in all the circumstances.

We debated that provision at some length at earlier stages of the Bill when we were concerned with fire fighters who have protection if they are taking exceptional risks—for example, entering a burning building to rescue somebody—but not in other circumstances. I do not raise that issue again but I should point out that there is a potential conflict between paragraphs 9 and 12.

Many of the people who may need to be compensated for mental injury—what is very often called trauma—as a result of an incident which could be caused by a criminal action will not be taking exceptional risks. They will be doing their job. They may be driving a train or bringing first aid to a victim of a criminal act. It could occur other than on the railways. Therefore, we feel that the second draft of the scheme needs to be thought out much further in order to be sure that the provisions of paragraph 12b do not negate the provisions of paragraph 9. While the Government may not necessarily wish to accept the amendment, we note that the Government will recognise that further drafting is necessary before the scheme is put before Parliament.

4.15 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, as the noble Lord said, this amendment is aimed at the exceptional risk provisions of the draft scheme (the latest draft of which was made available last week). Under those provisions, an award is not payable for injury sustained accidentally unless the person sustaining the injury was, at the time, taking an exceptional risk which was justified in all the circumstances. The first limb of this amendment would seek to exclude mental injury from this prohibition.

We accept that employees in the business of a railway and who are deemed eligible for an award for witnessing or clearing up a suicide on a railway—under paragraph 9d of the draft scheme—may, as the scheme now stands, be excluded from an award by the effects of paragraph 12b. That was not the intention. The noble Lord is right to point that out. We shall therefore make this quite clear by adding to the end of sub-paragraph 9d the following sentence: Paragraph 12 below does not apply where mental injury is sustained as described in this sub-paragraph. I believe that that will meet the concern of the noble Lord. The second limb of this amendment is not dissimilar, and seeks to extend the scheme so that mental injury suffered by anyone involved in helping at the scene of a crime or its immediate aftermath would be eligible for compensation. I am afraid that is not acceptable.

I recognise that this is a contentious and difficult area of the common law, and one which is continuing to develop. And there is of course the work of the Law Commission, which continues to examine the position of what are generally known as "secondary victims", namely, those who have been indirectly affected in one way or another by injury inflicted on others. But, as has been made clear on many occasions during earlier stages of this Bill, we are no longer attempting to provide finely judged compensation on the same basis as before, nor attempting to match each and every head of damage that might conceivably be available under common law damages. We must set some limit on what the taxpayer can reasonably be asked to pay for. Thus, while we feel that "secondary victims" who have a close personal relationship with the victim should be able to qualify for mental injury under the terms of paragraph 9, we do not think it would be right to include others as suggested here, be they "professional" rescuers or anyone else.

Lord McIntosh of Haringey

My Lords, I am extremely grateful to the Minister for her response to the first part of the amendment which is clearly totally satisfactory. We look forward to seeing the amended text and, indeed, to debating that amended text in Parliament when the orders are laid.

I do not agree with the noble Baroness about the second part of the amendment. I believe that there should be more recognition of the mental as well as the physical risks which rescuers take in the course of their work, which is often unpaid and voluntary. They may be amateur rescuers; for example, from the St. John's Ambulance or the Red Cross. However, this is not an issue on which I wish to divide the House at this stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 2:

Page 2, line 13, at end insert— ("( ) Where provision is made under section 2(2)(c) for an additional amount of compensation calculated with respect to special expenses, this provision shall include an amount for unpaid care provided at home by a relative or friend of the person to whom an award is being made, whether or not that friend or relative has suffered any actual loss of earnings or incurred additional personal or living expenses.").

The noble Lord said: My Lords, Amendment No. 2 refers to paragraph 35 of the second draft of the scheme. We are grateful for the recognition in the second draft of some of the arguments that we put forward at earlier stages of consideration of the Bill. Those of your Lordships who have taken an interest in these matters will recall that we were particularly concerned that there should be compensation, not just for paid care and associated expenses, but also for unpaid care provided by friends or relatives. Apart from the argument of principle, we put forward the practical argument that if the Bill compensated paid care but not unpaid care, victims would no longer receive unpaid care but would be tempted to go for paid care instead and the taxpayer would have to pay for it. Part of that argument is recognised in the last sub-paragraph of paragraph 35 of the draft scheme which says: the expense of unpaid care provided at home by a relative or friend of the victim will be compensated by assessing the carer's loss of earnings and/or additional personal living expenses". That nearly goes far enough but not quite far enough. I apologise for continuing to press the matter. It must be recognised that often many hours of unpaid care are provided by carers which do not involve loss of earnings. The unpaid carers would not otherwise have been earning, and it would not involve additional personal living expenses. Of course, if they were not to devote themselves to the care of the victim of crime they could be earning. Therefore, I believe that what is needed is a simple additional phrase. There is a requirement for recognition of earning capacity as well as actual loss of earnings. I believe that such an amendment will be in the spirit of the progress that has already been made in the direction of an improved scheme. I beg to move.

Baroness Blatch

My Lords, I believe that we can meet the intention of this amendment by making it clearer in the draft scheme that unpaid care can be compensated. The operation of the scheme has to rely, as far as practicable, on demonstrable, quantifiable costs rather than on wholly notional figures. But in this area we believe that the approach should be to take account of the time which the relative or friend is devoting to the care of the victim and make an assumption about how much that may represent in loss of earning capacity, even if the carer has not been in employment. We shall therefore amend the last sentence of paragraph 35 of the draft scheme to include reference both to the carer's loss of earnings and earning capacity.

Lord McIntosh of Haringey

My Lords, I wish I could have said it so well myself. I am grateful to the Minister, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 3:

Page 2, line 13, at end insert— ("( ) Where provision is made under section 2(2)(c) for an additional amount of compensation calculated with respect to special expenses, this provision shall include an amount for unpaid work normally carried out by the person to whom the award is being made but which (in the opinion of the person determining the award) it is now necessary for another person to be paid to carry out.").

The noble Lord said: My Lords, this amendment also relates to paragraph 35. We are pushing a little bit further each time. Amendment No. 3 is concerned with childcare and housework. Victims (or applicants, as they are referred to in the scheme) do a considerable amount of unpaid work such as childcare and housework in addition to that which is already recognised in the scheme, which is the maintenance of the house, garden, vehicles or whatever it may be. It is oddly sexist to recognise tasks that male victims may be prevented from doing—by reason of their disability but not those that female victims may be prevented from doing—not that I believe it right that women should do any more than their due share, or no more than half, of the housework in any house. However, there ought to be a recognition of childcare and housework. I hope that the Government will be as accommodating in this matter as in the previous one. I should have said that women should do no more than their share of childcare or housework.

Baroness Blatch

My Lords, this amendment would allow additional compensation to be paid to cover unpaid activities formerly undertaken by the victim. I believe I need to remind the House that, while we have taken forward with the new scheme the main elements of the common law damages scheme, we do not intend that the new scheme should comprehensively enable payment for absolutely anything available under common law in relation to special damages.

Victims incapacited for 28 weeks or more will receive generous compensation for the injury itself, for loss of earnings, for loss of earning capacity, for special expenses for the adaption of accommodation and for the cost of care. However, we believe that a line has to be drawn somewhere. We do not consider that the taxpayer should be asked to go further and pay what would be notionally calculated extra amounts in respect of home decoration, repairs, gardening or other unpaid activities. This is just one bridge too far in these amendments.

Lord McIntosh of Haringey

My Lords, if we had a fourth and fifth reading we might push a little further forward and make more progress, as we have done so far. I am disappointed, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Appeals]:

Lord McIntosh of Haringey moved Amendment No. 4: Page 4, line 43, at end insert ("but no such reduction shall be made unless the appeal has been referred by the adjudicator for an oral hearing"). The noble Lord said: My Lords, your Lordships may feel that this is a particularly abstruse point, for which I apologise. We turn now to paragraph 71 which is concerned with what happens in appeals that are determined without an oral hearing; in other words, on the basis of the papers alone. Paragraph 71 provides: Where an appeal is not referred under paragraphs 69 or 70 for an oral hearing, the adjudicator's dismissal of the appeal will be final and the decision taken on the review will stand".

We are worried about the next part: The adjudicator may, however, reduce the amount of compensation to be awarded by such amount as he considers appropriate, where he is of the opinion that the appeal was frivolous or vexatious".

We do not object to action being taken against frivolous or vexatious appeals, but surely an appeal cannot be considered to be frivolous or vexatious when it is only at the screening stage on the basis of papers alone. If somebody pursues it to an oral hearing, patently does not have a case and the matter can be described as frivolous or vexatious, it seems right that there should be penalties. But when it is dealt with purely on the basis of papers and is only at the screening stage, and when no other public money is expended on the costs of an appeal, surely the provision in the second sentence against frivolous or vexatious appeals and the associated power to reduce the award are not appropriate. I cannot believe that that is intended. I beg to move.

Lord Campbell of Alloway

My Lords, I would oppose the amendment. In this type of administration you have to have some safeguard against vexatious and frivolous appeals. There is a similar provision in so many other jurisdictions, indeed including the courts. I think that in this type of administration there is nothing wrong or inherently unfair about it.

4.30 p.m.

Baroness Blatch

My Lords, I am grateful to my noble friend for his intervention. However, I was about to accept that there is a case for saying that if an appeal is to be rejected on the ground of being vexatious or frivolous, it will be on the basis of an oral hearing. It is our intention to delete the second part of paragraph 71.

Lord McIntosh of Haringey

My Lords, again I am entirely satisfied with the Minister's answer. I am grateful to her for giving it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Parliamentary control]:

Baroness Blatch moved Amendment No. 5:

Page 8, line 24, at end insert— ("(3A) Before making any alteration to a provision of the Scheme which—

  1. (a) gives a right of appeal, or
  2. (b) specifies the circumstances in which an appeal is to be dealt with by a hearing,

the Secretary of State shall lay before Parliament a draft of the provision as proposed to be altered.").

The noble Baroness said: My Lords, it is, of course, a little unusual to bring forward government amendments at so late a stage in a Bill's proceedings. However, the amendments touch on an aspect of the scheme—namely, the appeals provisions—in which it is clear, from the several debates we have had on the subject at earlier stages of the Bill, that many of your Lordships take a particular interest. Indeed at Report stage I undertook to consider how we might be able to respond to an amendment tabled by the noble Lord, Lord McIntosh, and his colleague, the noble and learned Lord, Lord Archer. These amendments fulfil that undertaking and represent our considered response.

As your Lordships will recall, as a result of changes we made to the Bill in Committee, the complete scheme will now have to be approved by Parliament, by the affirmative resolution procedure, before it can come into force. Thereafter, if change is considered necessary or desirable, Parliament will have to approve such change. The more important, or "key" features of the scheme will require parliamentary approval by the affirmative resolution procedure, while all other features will require approval by the negative resolution procedure. The Executive will no longer have the power to change any aspect of the scheme, however minor, without securing the appropriate parliamentary approval in this way.

It is of course a matter of judgment as to which features of the scheme should require approval by the affirmative resolution procedure and which by the negative. In our view, Parliament ought not to be overburdened with more minor points of detail. We accordingly made a judgment as to what might reasonably be regarded as the "key" features of the scheme, and those are set out in Clause 11(3). In the main they relate to the tariff itself and to matters bearing on quantum.

However, it became clear in debate that a number of your Lordships take the view that provisions relating to appeals are also of sufficient importance to merit inclusion in that part of the Bill which would require subsequent change to be made by the affirmative resolution procedure.

The first amendment makes it clear that before any changes can he made to a provision of the scheme which gives a right of appeal or which specifies the circumstances in which an appeal is to be dealt with by an oral hearing, parliamentary approval by the affirmative resolution procedure will now be necessary. The second amendment is a minor consequential. That effectively means that any provision of the scheme touching on eligibility for appeal or the circumstances in which an oral hearing can be granted et cetera are caught.

I hope the House will agree that this is a sensible and pragmatic solution which achieves the right balance, and affords the appropriate level of parliamentary scrutiny. I beg to move.

Lord McIntosh of Haringey

My Lords, the amendment follows closely Amendment No. 27 which my noble and learned friend Lord Archer and I put before the House at Report stage. I have no doubt that the wording is better than that which we put forward. The amendment recognises the point made. That is confirmed by the Minister's speech.

Of course we are not too grateful because we would have preferred the appeals procedure to be on the face of the Bill. We believe that appeals procedures are by their nature quasi judicial, provisions for which should not be tucked away in a scheme even though alterations to a scheme are subject to the affirmative resolution procedure. However, this is the best that we shall gain; and we are grateful for the amendment.

Lord Campbell of Alloway

My Lords, I was slightly involved in this matter. One has the feeling again that one has not striven in vain. Although we have not achieved exactly what we sought, we have achieved recognition that the scheme may be so amended subject to circumstances which are never so easy to define. For my part, I am extremely grateful to my noble friend the Minister for going that far.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 6:

Page 8, line 26, after ("(3)") insert ("or (3A)").

On Question, amendment agreed to.

Baroness Blatch

My Lords, I beg to move that the Bill do now pass. The Bill paves the way for a new criminal injuries compensation scheme under which compensation will be paid to blameless victims of violent crimes on a statutory basis. The new scheme to be made under the Bill's powers will concentrate on a straightforward tariff approach for the majority of victims. But it will also ensure that the needs of those most seriously affected by their injuries are generously met. We believe such an approach strikes the right balance between the needs of victims and the interests of taxpayers.

In our view, continuation of the old scheme, based on common law damages, was no longer a sustainable option. Costs were rising rapidly, and the backlog of unresolved cases was increasing steadily, despite the best endeavours of my noble friend, Lord Carlisle, and the Criminal Injuries Compensation Board—mainly by reason of the year by year increase in applications made. And perhaps I may again pay tribute to my noble friend and his colleagues for all the good work that they have done and, indeed, continue to do, achieving notable improvements in productivity in recent years.

Perhaps I may say as an aside that I know that my noble friend would have been in his seat today but for an accident; he is unable to be in the Chamber today. On your behalf, I send him our best wishes.

Nonetheless, they have inevitably been constrained by the parameters of the scheme they have had to operate and which have tended to militate against more speedy resolution of cases.

The new tariff scheme, on the other hand, should be easier for victims to understand and, for the great majority of cases, simpler to operate. Most victims should have a better idea when they apply how much money they are likely to receive, and they should receive that money more quickly. The new scheme should also enable costs to be more readily predicted and controlled. Yet the new scheme will continue to be the most generous anywhere in the world. We expect to pay out some £1 billion in compensation between now and the end of this decade. That is by any standards a significant amount of taxpayers' money and will enable us to run an unparalleled scheme of which we can rightly continue to be proud.

In drawing up the new scheme, we of course paid regard to the criticisms of the earlier, non-statutory tariff scheme which was withdrawn earlier this year, following the ruling of the Judicial Committee of this House. And we have continued to listen to the many helpful comments made in both Houses, and in other quarters, as the Bill has proceeded through its various parliamentary stages. This has enabled us to make a number of improvements, both to the Bill and to the draft scheme itself that will, if the Bill receives Royal Assent, shortly be presented to Parliament for approval.

Perhaps the most far-reaching change effected in this Chamber during the Bill's passage through your Lordships' House was the group of amendments dealing with parliamentary control over the new arrangements. The whole scheme will now require parliamentary approval by the affirmative resolution procedure before it can be brought into force. Previously only the "key" features of the scheme—that is, those relating to the tariff itself and matters bearing on quantum—would have required parliamentary approval. But the Bill goes further than that. It now also provides that any subsequent change to the "key" features of the scheme, however minor, will require parliamentary approval by the affirmative resolution procedure, while a minor change to any other features will be subject to approval by the negative resolution procedure. I am sure your Lordships will agree that this is a very significant change indeed, since it gives Parliament rather than the Executive control over all aspects of the scheme. Ministers will no longer be able to make any changes at all to the scheme without the consent of Parliament.

I made reference a moment ago to the helpful debates we have had on the Bill both here, and in another place. Much of that debate was, inevitably, focused on the provisions of the draft scheme rather than the provisions of the Bill itself. I have to say that your Lordships were not inhibited in letting us know quite firmly where you felt change or improvement was needed. In the light of those debates we have made numerous changes to the draft scheme.

Key changes include greater consistency in the terminology used throughout the draft scheme. We have provided a table of contents and set out the scheme's provisions in a more logical fashion. We have clarified the criteria for waiving time limits. We have clarified the provisions for loss of income, in particular those aspects relating to pension rights and the use of multiplier tables. We have also amended the provisions for special expenses to make it clear that they cover unpaid care by a relative or friend. Fatal provision now covers a former spouse, and we have now made clearer the circumstances in which deductions may be made from awards. We have clarified the provisions relating to oral hearings, the adjournment of hearings and the circumstances in which interim payments will be made. I think the new draft scheme is very much the better for all these changes, and I hope your Lordships will share the feeling of satisfaction that this House has once again made a significant contribution to an important piece of legislation that will directly affect many tens of thousands of people each year.

We have, as a number of your Lordships will know already, just produced a further draft of the new scheme. A copy has been placed in the Library of the House for perusal by those of your Lordships who may not yet have had an opportunity to see it. It will be our intention to lay the scheme before Parliament for formal approval as soon as possible after the next session starts.

Finally, I wish to thank all noble Lords who have contributed to deliberations on the Bill, particularly the noble Lord, Lord McIntosh. In his inestimable way he pointed out many of the ways in which changes have been effected to the Bill, with help at the Dispatch Box from his noble and learned friend Lord Archer.

I also wish to thank the noble Lord, Lord Rodgers, for his contribution to the Bill, as I thank my colleagues on these Benches, particularly the noble and learned Lord the Lord Advocate. Even with his busy schedule he found time to lend assistance to me on the Bill. I am enormously grateful for that assistance and for the expertise which he lent during the course of the debate. I thank my Whip, my noble friend Lord Courtown. This is his first Bill and I am grateful for his help. Also my noble friends on the Back Benches have been hugely helpful and constructive, even though we have not met them on absolutely every detail.

Moved, That the Bill do now pass.—(Baroness Blatch.)

4.45 p.m.

Lord McIntosh of Haringey

My Lords, there are three kinds of Bill which come before your Lordships: first, those which are uncontroversial—and I shall not waste time by referring to them; secondly, those where we are sharply divided on political and ideological grounds, such as the poll tax Bill or large parts of the Criminal Justice and Public Order Bill and the Police and Magistrates' Courts Bill, to take recent examples. On those, there is nothing to be done except to slug it out, toe-to-toe. Then there is the third kind of Bill where there is a measure of agreement about the principle behind it, yet we feel that inadequate thought and consideration have gone into its preparation. I believe that this Bill is in the third category.

I forgive the inadequate thought and preparation to some extent. Without going into the murky history of the illegal actions of the Home Secretary, it must be recognised that the Home Office had a relatively short time between 5th April, when the existing scheme was found to be illegal, and today, which is almost the last day on which the Bill can pass both Houses in order to take effect by 1st April 1996. Thus many of the defects of the Bill are understandable, but they are still there and need to be dealt with. Many needed to be dealt with by this House rather than another place.

We have made substantial changes. We have not achieved some of the major objectives which we had in considering the Bill. Although we accepted that in practical terms we had to move to an enhanced tariff scheme, nevertheless we felt that the permanent, on-going, long-term features of the scheme should be on the face of the Bill in the form of primary legislation. Our amendments at the Committee stage were devoted to that end.

It is disappointing to find that, despite the movement towards parliamentary involvement in the form of the affirmative resolution procedure to which the Minister referred, nevertheless parliamentary approval is a good deal less effective than it would have been if it had been on the face of the Bill and subject to amendment.

We are disappointed about a number of details of the scheme. We still feel that it is wrong to put entirely on the social services the responsibility regarding loss of earnings in the first 28 weeks, not least because approximately 12 million people in the country do not benefit from statutory sick pay. That is either because they are not employed or because they are not employed by people who are able to recognise the scheme.

We do not believe that the treatment of multiple injuries is right. It is based on a false statistical calculation and when the scheme is in action it will prove to be inadequate. We do not believe that the scheme is adequate in its recognition of the differences in compensation which should be due to people of both sexes or in different age groups. We feel that the scheme is too cursory and does not allow for recognition of real differences, particularly, for example, with facial injuries according to how young one is and of which sex.

Adequate attention has not been paid to the issue of compensation for pregnancy following rape. There is compensation when the pregnancy results in a live birth and the child is kept, but in other cases there are injuries which are still not adequately recognised in the tariff.

We are not happy about many things, but I have quite a long list of provisions which have been changed as a result of amendments proposed by Labour—not that Labour has won any amendments. We seldom put matters to the vote and this was not the kind of Bill where we sought to win on the Floor of the House. Concessions have been made following the amendments which we put down at different stages of the Bill. For those, we are grateful.

First, regarding time limits, we did not succeed in getting the time period extended from two years to three years. However, what was originally a criterion for out-of-time applications of exceptional cases has now been amended to relate to special circumstances. We understand that it may well be amended further to relate to particular circumstances following the speech of the noble and learned Lord, Lord Ackner. That is one good point.

We have just been debating unpaid care at home by a friend or relative. First, it was conceded that there would be payment for loss of earnings or extra expenses. Now it is conceded that there will be payment for loss of earning capacity. Regarding awards for frivolous or vexatious appeals, it has been agreed in the last few minutes that the provision will apply only where there is an oral hearing and not where a decision is made on the papers alone.

The most recent amendment which the Minister persuaded noble Lords was right, with our agreement, was that major changes to the appeals procedure would have to go through the affirmative resolution procedure. Again, that follows amendments which we put down at earlier stages. There has been clarification as a result of amendments which we put down in Committee about what happens when a person who was fatally injured was temporarily on state benefit. In those circumstances, the calculation of dependency is on the basis of potential loss of earnings, as it should be. We believe that we have got somewhere in paragraph 32 of the tariff on the use of actuarial Ogden tables for the multiplier. The note to the scheme is better than it was and less crude, but we believe that an even better way of calculating compensation could be found. However, the wording is still to be finalised.

On those and probably other matters which I have overlooked, there has been substantial improvement in the Bill. For that I am most grateful to the Minister and to the noble and learned Lord the Lord Advocate, who agreed to see me, unusually, both before the Committee stage and between Committee and Report stages.

I believe that we have had constructive exchanges which have resulted in a scheme which everybody agrees is better than it would have been if we had not had those opportunities. I am most grateful to my noble and learned friend Lord Archer of Sandwell for his support. He is sorry that he is unable to be here today. I am grateful to the noble Lord, Lord Rodgers of Quarry Bank, for his support in the early stages of the Bill. 'Working with the noble Lords, Lord Windlesham and Lord Carlisle, in a spirit of consultation, I suppose, has been a particularly great pleasure.

I wish the Bill well. I hope that further changes which may be necessary will be made without unnecessary contention. As a result, I hope that we shall have a scheme of which we can all be proud.

Lord Rodgers of Quarry Bank

My Lords, I am very happy to associate these Benches with the sentiments expressed by the noble Lord, Lord McIntosh. Perhaps I may also say how much I appreciated the very constructive and reasonable way in which the Minister approached the Bill. She was sympathetic at all times to the views expressed from all sides of the House. If the face of the Bill has not been much amended, nevertheless commitments have been given which on the whole are very satisfactory. Like the noble Lord, Lord McIntosh, I welcome the fact that a revised draft of the scheme has been available and, as I understand it, will now be available in the Library.

I have also respected the assiduous way in which the noble Lord, Lord McIntosh, since the Bill was given a Second Reading on 19th July, has pursued the details of the Bill. The House owes much to him for the extent to which the Bill has been improved during its progress through the House.

On Second Reading I mentioned five points which I felt were important. First, I said that, if one had to choose, I reluctantly accepted the idea of a tariff system. Secondly, I declared that I was unhappy about some of the reasons given for restraining costs. Thirdly, I believed that more of the contents of the scheme should be on the face of the Bill. Fourthly, I was concerned, as other noble Lords have been, with parliamentary control in these matters. Fifthly, I referred to the speed in compensating victims. Clearly, it would be inappropriate to cover all that ground now and I shall confine myself to one or two remarks.

The Minister said again today that this is the most generous scheme in the world. Not for a moment do I doubt that. But I still take the view that the proper basis for comparison must be within our own priorities. Although I understand the reasons why both the Government and Her Majesty's Opposition are anxious to restrain costs, we must keep an open mind and be prepared to pay whatever is necessary to compensate the victims of crime in an appropriate way.

With regard to wanting more on the face of the Bill and parliamentary control, as I said, some progress has been made. Even if the outcome is not entirely satisfactory, we are now better placed than we were three months ago.

I return very briefly to the question of the tariff system. On Second Reading I said that in my view there was much virtue in having a tariff system with banding. I have not changed my mind about that. Indeed, the noble Lord, Lord Carlisle, suggested what I considered to be a very interesting thought; namely, that it would have been possible to have a hybrid scheme in which—I believe that these are his figures—85 per cent. was fixed tariff and 15 per cent. allowed for discretion, I assume within limits. My own view is still that, given that every victim is different and every injury distinctive, it would have been a much better scheme if there were banding as a simple way of administering the scheme for most of the cases; but in particularly difficult circumstances, where the injuries themselves might be different and might have a different bearing on the individuals, it would have been better to have an element of discretion and that is lacking.

That having been said, inevitably this is rough justice. But it is justice of a kind. Time alone will show how watertight our scheme is. I join with those who welcome the Bill and hope very much that it will meet the needs of those whom it is designed to help.

Lord Colnbrook

My Lords, I shall not detain your Lordships for more than two minutes. Before we finally finish with the Bill, I want briefly to commend the Government on two fronts. The first is for producing the Bill at all. We all remember, do we not, the scheme which the Home Secretary sought to introduce without parliamentary approval—and he was not allowed to do that. It was the wrong scheme and everybody said so. He was not allowed to implement it because the courts said that he exceeded his powers. The Government could have sought to introduce that scheme in Parliament in a Bill. I believe that they are to be commended because they listened to what was being said both in this Chamber and in another place about the original scheme. The Bill was very different and very much better. The Government are to be commended for listening.

The second reason why I feel that the Government ought to be commended has already been mentioned; namely, the way in which the Bill has been handled by my noble friend the Minister in this House. As always, she takes infinite pains. She listens most carefully and is most willing and helpful, wishing to co-operate and meet points when she can do so. I dare say that she has battles with the Secretary of State about what she is and is not allowed to give. She seems to win quite a lot of those battles. We are very fortunate to have her.

I still believe that the original scheme which has been in operation for many years is absolutely first class. I accept the reasons why we have to have this one and I am glad that it is a great deal better than was originally conceived. I wish it well.

5 p.m.

Lord Simon of Glaisdale

My Lords, I have taken a very small part in the Bill but I should like to make shortly four points at this stage. I am afraid that only the first two will be generally acceptable.

The first one is to thank the noble Lords on whom has fallen the main burden of discussion of the Bill. They are inevitably the Front Benchers. If a debate goes on after the dinner adjournment, it is almost exclusively the Front Benchers on whom the burden rests. We are greatly in their debt. There has been remarkably rapid progress on the Bill, partly because of the precision of mind of those on the Front Benches who have been principally concerned and partly because of the good humour that the noble Lord, Lord McIntosh, if I may say so, brings to the Dispatch Box. All that makes the proceedings so much quicker and more pleasant.

My second point has been referred to already; namely, the improvement in parliamentary control. My demur is apprehension lest a government department tries to get away with the least parliamentary control that is possible. There again, we have been greatly indebted, as so often, to the Scrutiny Committee. I agree that in this Bill the parliamentary control, even if not wholly satisfactory in the way that has been described, has been enormously strengthened.

The third—I am conscious of being on my own—is a point to which I referred at an earlier stage; namely, whether we are justified at all in having a scheme of compensation for victims of violence. The noble Baroness said that it is the most generous scheme in the world. That means that the taxpayers are being asked to make an exceptional contribution.

A whole number of anomalies exist, both external and internal. One internal anomaly referred to frequently during the course of the debates was the omission of certain types of injury. Perhaps the most striking omission, if I read the scheme rightly, is the omission of injuries caused by crimes committed with a motor vehicle, except in very limited circumstances. There have been other matters, some of which were referred to this evening.

There is the anomalous fact that we are compensating victims of violence, not victims of crime generally. Crimes against property are not within the scheme any more than they were within the common law scheme or the original tariff scheme. The only justification that I can see for compensating victims of violence is that society owes a duty to protect its citizens from criminal activity. But if that is so, then crimes against property should equally be the subject of compensation. That would make it even more expensive than the original scheme. That was quite exorbitant (far more than we could possibly afford) and was rightly withdrawn.

My last point concerns the conduct of the Secretary of State. I referred to it briefly in an intervention at Second Reading. After the noble Baroness had made her clear introduction of the Bill, I asked humbly whether there was to be any question of contrition on behalf of the Secretary of State; after all, he had acted illegally. Worse still, he had acted illegally in the knowledge that there was a 50 per cent. chance that his actions were illegal. But worst of all, illegal or not, he acted unconstitutionally in thumbing his nose at Parliament by failing to bring into action the scheme which Parliament set out at length in a schedule to the statute, and instead brought in an extrastatutory scheme of his own devising. The noble Baroness merely dealt with that point by saying that the Secretary of State acted throughout in good faith. What does that mean—illegal action, in the knowledge that it is unlawful or may be, in good faith?

Your Lordships may remember Hamlet's "poison in jest". Is that not what the noble Baroness was saying? Or perhaps even closer, the final verdict of the tribunal in the Dreyfus case. In order to spare the reputation of the Army the verdict brought in was treason, but with mitigating circumstances and the whole affair then dissolved in derision. The fact is that your Lordships will not be seeking the humiliation of the Secretary of State; but your Lordships will be looking for some humility on his part. I am afraid it does not stand alone; It is only one of several actions by the Secretary of State.

The Secretary of State refused the Carr amendment to the Criminal Justice Bill, so taking the discretion away from the justices. One is bound to say that that must also be viewed with the wholesale ouster of the justices' discretion in the Child Support Act and its various measures. More recently, the Secretary of State was implicated in the way the Ackner amendment was treated on the Criminal Appeal Bill. I do not believe the Secretary of State can be regarded as being primarily responsible; the responsibility must lie in this House. But what was done was that an amendment of great importance, supported by the Lord Chief Justice, by his predecessor, Lord Lane, by a former Chief Justice of Northern Ireland and, we were told, by a practically unanimous view of the judiciary, was passed in this House by a large majority—an astonishing majority considering that government supporters were whipped. That decision was reversed on a Monday in the other place by the use of the Government Whip, and the Commons disagreement was brought before your Lordships in the dinner adjournment the following day on the shortest notice.

As I said, I cannot regard the Secretary of State as being primarily responsible for that; but undoubtedly he was implicated and therefore we ought not to depart from this Bill without considering his unconstitutional actions, his illegal actions, under the Bill and its predecessor. We say that in the hope that the Secretary of State will have closer regard in the future to his constitutional duties and in particular be much more cautious in setting himself up against the unanimous views of the judiciary, as my noble and learned friend Lord Hailsham warned when that matter fell for decision.

Having made those two disagreeable points, I hark back to my two originally favourable comments and wish the Bill well.

5.8 p.m.

Lord Ackner

My Lords, as the number one troublemaker in this particular field perhaps I may add one or two brief comments. The tariff scheme started life in an unhappy way, well described in general terms by my noble and learned friend Lord Simon. It was significantly altered, and for that the Government must take some credit, and the Minister considerable credit.

The tariff scheme has the inevitable disadvantage of inflexibility. That was conceded by the noble Baroness who spoke of the rough justice product which will occur. That feature is said to be balanced by the speed with which the new scheme will operate and by the saving of money which will occur as a result of applying the tariff rather than the more difficult concept of common law damages. Whether the one compensates for the other we have yet to see, but I, too, would like lo associate myself with those who have spoken of the great abilities with which the Minister has presented the Bill. An enormous amount of preparation must have gone into it. As one who has listened over many years to arguments being propounded from the Bar, it was a pleasure to listen to the way in which the noble Baroness dealt with criticism, even though in some respects it was a sadness to have to see her adopting the particular line which she did. I, too, wish the Bill well.

On Question, Bill read a third time, and returned to the Commons with amendments.