§ 5.43 p.m.
§ House again in Committee on Clause 1.
§ [Amendment No. 5 not moved.]
§ Clause 2 [Basis on which compensation is to be calculated]:
§ Lord Carlisle of Bucklow moved Amendment No. 6:
§ Page 2, line 4, after ("compensation") insert ("or an amount within a defined band of compensation").
§ The noble Lord said: The purpose of this amendment is to propose that, within the tariff system, instead of having merely one specific figure for each type of injury, there should be as an alternative for certain types of injury a band of figures from which the appropriate amount of compensation may be chosen.
§ In declaring an interest as the present chairman of the Criminal Injuries Compensation Board, perhaps I may say that in moving this amendment I in no way depart from the view that I expressed originally that it is sad 615 that we are moving away from the common law system of damages to a tariff system as a whole. As has been said on many occasions, a tariff system is unable to take account of the very different effects of similar injuries on different people. Such a system can take no account of age, occupation, sex, way of life or other obvious matters which should be taken into account when deciding compensation. I shall not repeat those arguments today because the House has had two opportunities to debate these matters and our views were expressed then.
§ As I said on those occasions, I recognise that there is a need for change and that one cannot say that a system that is now required to deal with 70,000 cases a year can be the same as that which was required originally to deal with 3,000 cases a year. Therefore, I recognise and accept—although I regret it—that the tariff system is probably necessary in the vast majority of cases. At the moment, in something like 85 per cent. of the cases dealt with by the board the award is less than £5,000. Many such cases are straightforward. I accept that given the need for simplicity and speed there is an argument that there should be a tariff system, as proposed in the Bill, for a general type of injury. We could have tariff compensation for those who suffer a broken nose, broken arm or broken cheekbone.
§ However, I still believe firmly that there are certain types of injury or certain offences for which a single tariff figure is, frankly, so unrealistic as to become almost unworkable. The purpose of my amendments—the others are consequential on Amendment No. 6, which I am now moving—is not merely to accept the principle of the tariff system which the Home Office is proposing and which has been accepted by this House and another place and to accept that there should be published figures for types of injury, but to say that for certain types of injury there should be bands with a lower and a higher figure within which the individual claims manager—I think that that will be his title—can decide on the proper amount of compensation in the case in question.
§ I should like to give the Committee the four examples—one might say the three areas—for which I believe that such a system is necessary. I urge that this he considered by the Home Office. I refer to scarring cases, to cases involving mental shock, to sexual abuse cases and, perhaps as a further category, to cases of abuse against children.
§ In my submission, it is not realistic to believe that scarring cases can adequately be dealt with by a single figure. In the tariff which the Government have provided, it is intended that so far as facial scarring is concerned there should be three categories. I accept that that is done in an effort to make distinctions. The three categories are minor disfigurement, significant disfigurement and serious disfigurement. The difference between "significant" and "serious" may be a question of semantics to some extent, but amounts apparently to £4,000. If you suffer significant disfigurement, you get £3,500, whereas, if you suffer serious disfigurement, you get £7,500. One knows from experience on the board that the effect of scarring, particularly facial or 616 visible scarring, varies enormously with different people. It is absurd to suggest that substantial and clearly visible scarring on a young girl of 17 or 18 does not have enormous emotional effects as well as physical effects compared to such scarring on someone of adult or even elderly age.
§ In fairness to the individual, that is one of the areas in which there should be a band within which people should attempt to put the individual rather than suggest that they can fall into those three categories. It may be that £7,500 just is not enough for the really bad case of scarring. Those cases should be looked at by photograph and, where necessary, by seeing the person concerned. There should be a wider area of choice than that which exists.
§ I move on to the three other areas that I mentioned: mental anguish, mental injury, and shock. Those cases differ enormously depending upon the make-up of the individual concerned. With the best will in the world, I recognise that the Home Office has accepted—it has had to accept, though it may be a bad acceptance—and has attempted in its most recent tariff to meet the board's own recommendation as to how, if it is to be done by a tariff, a tariff should achieve that end. However, we still believe that a tariff is not appropriate. To say that the compensation for a disabling mental disorder which lasts for over one year but which is not permanent is £7,500, and then to say in the next breath that the next step is that the amount for a permanently disabling mental disorder is £20,000, is far too wide a gap.
§ I do not believe that the proposals I am advancing—if the Home Office is concerned, as I understand it is, about the costs of the scheme—need necessarily increase costs in any way. For example, if one takes the case of mental shock, one could say that the compensation should be up to whatever the figure is in the tariff at the moment. What I believe—and what I believe experience has shown in the past year when we have had to review the cases that were carried out under the aborted tariff which the Home Secretary attempted to bring in—is that a great many awards of public money are being given which are far more substantial than were being given under the board and far more substantial than we would have recommended in those cases.
§ Then there is the whole area of sexual abuse. How can one have a single tariff figure for abuse of a child? Is the effect the same if the child is four or if it is 14 or 15, and conscious of what is happening to it? The suggestion is that if the severe abuse is for less than three years—however many offences within that time, and whatever effect they may have—the victim will receive only £3,000 whereas if the child should be shown to have been abused for just over three years it will receive £6,000. It is not a question of the length of time for which the child is abused. It is the relationship with the abuser, the type of abuse, and the effect on and the age of the individual child and its emotional development. Again, it is unrealistic to look at the matter on a single-figure basis.
§ Finally—I know that this is always highly controversial, and I tread warily into this field of adult sexual offences—I notice now that for rape there are 617 to be two figures: for non-consensual vaginal or anal intercourse £7,500, and for non-consensual vaginal or anal intercourse with other serious bodily injuries—whatever those bodily injuries are—the figure jumps to £17,500. Surely, again, that cannot be right. Of course there are some rapes of extreme degrees of seriousness, but often a rape at gunpoint or knifepoint without any physical injury to the individual concerned is just as serious as when that knife inflicts the slightest wound, which presumably would take it into the field of being "other serious bodily injuries".
§ Therefore, what I would ask the Home Office to consider, and what the board has repeatedly asked the Home Office to consider once we accepted, as we do, that the Home Office was determined to stick to the principle of the tariff—it is not inconsistent with the principle—is whether in certain areas of what I would call generic offences a band of figures would not be more appropriate than a single figure. That is the purpose of my amendment. It is for the purpose of obtaining debate on that issue that I put it down today so as to hear the views of other Members of the Committee on what I believe is a proposal which would improve the tariff system as now proposed by the Government. I beg to move.
§ Lord Macaulay of BragarI have already declared an interest in this matter. I have heard the observations made by the noble Lord, Lord Carlisle of Bucklow, and sympathise with his approach to the matter. He and I have had discussions with other members of the board over a considerable number of years and also with the Home Office and various junior Ministers to try to achieve some system that will do justice to the victim. That is what we are talking about. We are not talking about the technicalities of the system. The important person is the victim.
Having listened to what the noble Lord had to say, it occurs to me that one of the difficulties with his amendment might be—I underline the words "might be"—that once there is a band everyone goes for the top end of the band. Everyone thinks that they are severely shocked. If there is a band from £5,000 to £7,500, and the board member gives £5,000 that will almost inevitably be appealed on the basis that that person was more severely shocked than the board member thought and therefore he should receive £7,500.
I emphasise again—subject to anything my noble friend on the Front Bench might say—that there are great difficulties in the working of the scheme. If we are to have a scheme at all, it must reflect the interests of the victim. We cannot have a defined figure for child abuse. If, as I believe I said on Second Reading, some Members of the Committee were to visit and, with the permission of the victims of terrible abuse, listen to the horrible—I really mean horrible—tales of sexual abuse, deprivation and all the rest of it which would not be believed if they were read about, then Members of the Committee would see how the system is supposed to work.
We are getting judicial intervention now. I have never seen a judge sitting with the Criminal Injuries Compensation Board to see how it works. Judicial review has become an industry, and that is wrong 618 because what we want is a system which does not reward the victim but which recognises that the victim has had something done wrongly to him.
We are not discussing the tariff scheme because that is a matter for another debate. The important thing is—as I understand it, this is what the noble Lord, Lord Carlisle of Bucklow, was saying—that discretion has been removed, and the essence of justice is discretion. Once we remove discretion, we remove justice. We have members of the board—I kid you not—sitting with large piles of blue bags each of which contains 20 cases resulting from the illegal actions of the Home Secretary. I am not making a political point, but that is the way life is. We are reviewing the cases, and it is astonishing to see some of the awards that were made and some that were not made. An element of discretion must be built into the system, however the Government intend to do it.
Perhaps I may make an important point in conclusion. One of the large areas is child sexual abuse. There is no time clock on the abuse of children. We know that because we see such situations day in and day out. It is sickening but we must deal with it. However, just to put down a tariff and say, as the noble Lord has already said, "Well, you give somebody £5,000 for that. That was too bad. But that is the way it happened", is not the way the system should operate.
From an examination of the files which we have to look at, it is also becoming patently clear that the tariff does not take into account the circumstances in which an assault takes place. It is all very well for an HEO in the Civil Service to press a button on the tariff scheme and say "Scarring", or whatever it might be, but that does not take into account the circumstances in which the assault takes place. We hear horrendous tales of assaults which have no long-term consequences, but the event is worth an award which is not given in the tariff scheme. Although we are both members of the board we are at one in believing that an element of discretion must be built into the scheme; otherwise it will act unfairly towards the most important people—the victims of violence in this country.
§ 6 p.m.
§ Lord McIntosh of HaringeyI too listened with deep attention and respect to what was said by the noble Lord, Lord Carlisle. After all, he knows far move about the subject than almost any of us and certainly far more than I do. However, I suggest to him that my noble friend Lord Macaulay is right. The implications of allowing, as the noble Lord's amendments allow, for a band of compensation amounts across the board would be in the first instance that everyone would go for the top of the band. We would end up with a great many appeals and a great deal of additional expense. I urge the noble Lord to look at subsequent amendments which we have tabled and which address the points that he has so eloquently addressed. I hope that they deal with those points more precisely and more effectively.
The noble Lord talked about the differences between injuries to a young girl and to an older man. Our Amendments Nos. 16 and 17 allow for additional payments to be made, taking account of sex, of occupation and of dominance as between injuries to the 619 left and right upper limbs. They also include a wider difference for age, which would take account of the points that the noble Lord has correctly made but would do so more exactly and without so much potential damage to the tariff scheme as a whole.
We have not specifically covered the point that the noble Lord made about scarring, which I acknowledge. However, in Amendments Nos. 28, 29 and 30 we have gone further than the noble Lord and have suggested that, in cases concerning the abuse of children, sexual abuse and shock, the tariff virtually gives up. That is particularly so in respect of shock where there is no definition but simply a footnote at the end of the tariff stating that such definitions are available pending the forthcoming Law Commission report.
I suggest to the noble Lord that by limiting the amendments to the point that we make in Amendments Nos. 16 and 17 and to the exclusion from the tariff altogether of shock, sexual abuse and the abuse of children, we are dealing more directly with the failings of the tariff system than he does in his amendments.
§ Baroness BlatchI know how deeply my noble friend feels about this and I know that he speaks from considerable experience. Therefore, it is with diffidence that I take issue with him on his amendments.
Perhaps I may take the first proposed provision for compensation bands. That would undermine the whole rationale of the tariff system. In effect, it would reintroduce a common law damages scheme, which my noble friend has hinted he would prefer, with the associated delays and complexity. The whole point of a tariff system is that it provides a quicker, simpler and more transparent arrangement.
We have made the point on many occasions that there is no right or precise figure of compensation for a particular injury. We also believe that victims want their compensation as quickly as possible. Under the enhanced tariff scheme, therefore, we are no longer attempting to make finely judged assessments. Instead we are making a generous payment—based on the board's own awards—in recognition of society's concern for the blameless victims of violent crime.
At the same time the tariff in its current draft form contains over 300 different injury descriptions. A more severe case of a particular injury can therefore be assigned the appropriate higher tariff amount. And where the injury is particularly severe, or its effects prolonged or severe, there are additional payments for loss of earnings and the costs of special care.
A further problem with a system of compensation bands, which was hinted at by the noble Lord, Lord Macaulay, is that since many claimants, quite understandably, would believe their cases to be exceptional there would probably be far more requests for review and appeals. I slightly argue that it would increase further the demands for reviews and appeals. And reviews and appeals would be longer and more complex. However, claimants will be able to appeal on the grounds that they believe that their injury should have been placed in a higher rated category.
620 As I said, these amendments would also provide for the tariff to define the harm done to the claimant in terms of the offence rather than the injury. However, we do not consider that this amendment is necessary since subsection (5) of Clause 2 already makes it clear that an injury may be described in the tariff in whatever way the Secretary of State considers appropriate. We take the view that this will permit reference to offences in so far as that may be necessary and, indeed, we do refer in the tariff to indecent assault. Perhaps I should explain that, as far as possible, we wish to avoid reference to specific offences in the tariff because this may produce uncertainty where the law differs between England and Wales on the one hand and Scotland on the other. Offences would have to be defined in terms of the relevant legislation, which can be complex and may differ for England and Wales. The use of such terms might also be confusing to claimants who may not understand the technicalities of legal definitions.
The tariff, therefore, seeks to describe the injury, wherever possible, in terms of the harm done. Should the injury include mental or emotional harm serious enough to warrant compensation in its own right the tariff allows for that. And of course should it become apparent that the way in which a particular injury is described in the tariff requires amendment for whatever reason, the Bill gives the flexibility to do that. We are confident that in practice the tariff will be able to produce awards which reflect the range of injury and suffering of victims with, as I have said, the advantage of greater speed and simplicity.
The issue is important, but if we are to go for, on the one hand, the suggestion made by my noble friend in the particular amendments in front of us or the suggestion which was not defined but put forward by the noble Lord, Lord Macaulay of Bragar, that there should be some element of discretion, we believe that that flies in the face of what we are trying to do; that is, to produce a simple, understandable, transparent and speedy system of compensating people for injury when it has been caused by a criminal act.
§ Lord Carlisle of BucklowI have heard what has been said and, if I may put it in the vernacular, I know when I am beaten. However, I wish to make one or two brief remarks with reference to the comments that have been made. Perhaps I may say, first, to the noble Lord, Lord Macaulay of Bragar, that of course if there is a maximum figure someone may ask, "Why haven't I got the maximum?", and there may be appeals from people who believe that they should have been awarded the maximum amount. However, I believe that many people will appeal saying, "You may say that my scarring is significant but I say that it is serious". I do not believe that one is avoiding appeals by taking bands rather than categories, which I believe will encourage people always to argue that they are in the highest category. That is particularly the case when they see that the amount is not £500 but £4,000 or more depending on the use of a word.
I have looked at the amendments in the name of the noble Lord, Lord McIntosh. I differ from him as regards the best way to achieve flexibility. With great respect, he is going a lot further outside the tariff system than I 621 was attempting to do. I was attempting to provide a degree of flexibility within the tariff system. Of course, the noble Lord would take out of the system entirely all the sexual, shock and multiple injury offences. He prefers the hybrid system. I had rather accepted that the argument for that had been lost at an earlier stage.
The noble Lord's proposal for a percentage within which the tariff could be moved means that every type of accident and injury to any individual would have to be assessed individually, whether it was within the 10 per cent., 20 per cent. or 50 per cent. band. I notice also that the bands proposed by the noble Lord all go upwards rather than downwards. The Government will not find that acceptable for that reason. That is why I proposed an alternative method to provide flexibility in those three closely defined areas. But as I say, I know when the feeling of the Committee is against me. Therefore, I beg leave to withdraw Amendment No. 6.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 7 not moved.]
§ Lord Bethell moved Amendment No. 8:
§ Page 2, line 7, at end insert ("and loss of pension rights").
§ The noble Lord said: At the outset I should declare my interest in that I am one of the advisers to the Police Federation of England and Wales. I should inform the Committee that I have spoken to the federation before deciding to table the amendment.
§ Of course, this Bill is not aimed specifically at the police and helping the police but one should bear in mind the fact that 16,000 police officers are assaulted every year; that many of them are injured seriously; and that in 1994 over 3,000 claims were submitted on behalf of police officers to the Criminal Injuries Compensation Board. Therefore, the police service is particularly concerned about the issue of compensation for criminal injuries and the amendment which I have put before the Committee.
§ Police officers tend to retire earlier than people in other walks of life. It is their duty to remain physically very fit and therefore it is normal for a police officer, unless he reaches senior ranks, to retire at the age of 55 or after 30 years. Therefore, any injury to the body and mind of a police officer is likely to hasten retirement or make more likely forcible retirement.
§
I wish to draw to the attention of the Committee to Clause 2 of the Bill which states:
The amount of compensation payable under an award shall be determined in accordance with the provisions of the Scheme…Provision shall be made for…an additional amount of compensation calculated with respect to loss of earnings".
§
This amendment proposes that the words:
and loss of pension rights
should be added. I believe that loss of pension rights is as important to the award of compensation to a victim of criminal injury as is loss of earnings. Bearing in mind the fact that pension receipts will be set off against loss of earnings, it seems unfair that a victim will not also be able to claim compensation for the loss of those pension rights. Any claim put to the board should take into account the fact that an injured officer's pension as well as his earnings has been reduced sharply because he was forced to leave the service early.
§ This amendment takes into account the fact that the earlier any such calamity occurs, when a victim is so badly injured that he must retire, the greater is the loss of pension rights, simply because he accrues those rights by length of service.
§ I believe that wounded police officers and other victims should be enabled to receive the full benefit of the pension that they would have earned had they continued to serve until normal retirement age. There are signs that the Government accept that principle. My honourable friend Mr. David Maclean, in a letter dated 27th September, informed the Police Federation of England and Wales that his view was that a police officer should have his loss of pension taken into account when the claim is assessed.
§ At the moment it seems that the question of pension rights is not addressed by the Bill or the draft scheme. I wonder whether my noble friend will assure me either that she will accept the amendment or that it will be included in the scheme. If it is to be in the scheme, are we to take it that the scheme thus changed—thus improved, I would suggest—will be put before your Lordships and another place as envisaged by Amendment No. 61? In other words, can we take it that if the spirit of the amendment is to be included in the scheme it will eventually become not just a guideline but also part of the law of the land? I await with interest my noble friend's reply.
§ 6.15 p.m.
§ Lord AcknerI support the amendment on the very simple basis that pensions are deferred pay. One's remuneration package consists of one's instant, immediate pay and the pension, which is merely pay deferred until retirement. Accordingly, if compensation is to include loss of earnings, it should include both loss of one's immediate, weekly pay and one's deferred pay, which is one's pension.
§ Lord Ewing of KirkfordThis amendment opens up a very wide field indeed. If the Committee is to discuss the whole question of loss of pension rights because of criminal injuries, the principle must extend way beyond the police forces. In your Lordship's House there is no greater supporter than I of the police, but once we begin to create special categories in legislation we lay all sorts of minefields for ourselves.
Even in the police force itself it must be remembered that when a police officer retires he receives his pension the day after he retires, at whatever age he may be. That is not true of all other people who are entitled to occupational pensions. There are many instances in which people retire early because of ill health or for some other reason but they do not receive their pension until they reach pensionable age. That is not true in the case of police officers.
Nor is it true or accurate to say that police officers retiring early retire only because of criminal injuries. There is a whole host of reasons for that. Perhaps I may take the example of the Hillsborough disaster. That was a regrettable incident at Hillsborough football park in Sheffield where police officers were subsequently retired, not because they were injured in that disaster but 623 because psychologically they could no longer handle the situations which they faced. Where do they fit in with the amendment?
I want to make it clear that I am in favour of pension rights being taken into account in the settlement of such injuries and of the consideration that is given to the victims of crimes. However, I am in favour of that principle for all people and not just one category because that begins to divide society. That is the last thing that we should be doing especially in relation to criminal injuries.
§ Lord AcknerWith the leave of the Committee, I should like to make it clear that my support for the amendment was based upon its general application because it does not seek to point out or emphasise the police. Indeed, as I understood it, the noble Lord, Lord Bethel, was merely using the police as an example. My comment that pension is deferred pay is of general application and my support for the amendment was based upon the proposition that it is illogical to limit the compensation to the immediate loss of pay and to remove from it deferred pay.
§ Baroness BlatchPerhaps I may speak now in order to assist Members of the Committee. My noble friend has given good reasons for such a provision relating to a particular category of victim, while other speakers have mentioned the general point. I am happy to be able to tell the Committee that we do consider that the loss of pension rights are included within the scope of the term "loss of earnings". The draft scheme will be amended before presentation to Parliament to make that clear. Therefore, it will be generally applied. In the light of that assurance, I hope that I have allayed all the anxieties on the matter.
§ Lord McIntosh of HaringeyIf I may say so, that is all very well; indeed, I am sure that the noble Lord, Lord Bethel, will be pleased with the Minister's answer. However, there are two kinds of effects on pensions of an injury caused by crime. One is that the person concerned receives a pension early because he or she can no longer work. The other is that, at the end of a normal working life, someone who has been injured is able to work but is no longer able to achieve promotion or undertake a certain kind of job. The pension is, therefore, diminished as a result of the injury.
We considered whether to put the pension elements of the scheme on the face of the Bill in the form of an amendment, but paragraph 35 of the scheme is so dense that it is virtually impossible to understand what it means. There is still an anomaly in paragraph 35 of the scheme. It says that an award will be offset—that is, the amount will be reduced—by the amount of any pension arising from the injury. In other words, if someone takes early retirement and has a pension, that will be offset and then there is special provision as to whether or not the payment is taxable.
However, if a pension is contributed to entirely by an individual—that is, by the applicant—it is not offset. That distinction does not seem to be fair. I say that because an occupational pension is usually a combination of payments by the individual and by the 624 employer. I am not suggesting for one moment that the Minister should attempt to answer the issue now because it is not referred to in the noble Lord's amendment; but perhaps the noble Baroness would give consideration to the point about the fairness between self-employed or self-contributory pension schemes and jointly contributed occupational pension schemes.
§ Baroness BlatchI understand that in calculating loss of earnings loss of pension would be subsumed therein. That will be made clear as a result of today's debate; and, indeed, had already been thought about before my noble friend raised the matter in relation to the police. I also understand that, where pensions are paid, clearly there will not be a double payment. We are talking about a situation where there is a loss of pension as a direct result of a criminal injury which is properly recognised by the authority and where the loss of pension rights would also be subsumed within the calculation for loss of earnings. I do not believe that Members of the Committee should be concerned about the issue. However, I shall read what the noble Lord, Lord McIntosh, said and we shall continue to try to make the matter as clear as possible in the hope that all fears are allayed.
§ Lord Carlisle of BucklowBefore we leave the matter, I do not wish to make my noble friend's life more complicated but, while listening to the noble Lord, Lord McIntosh, it occurred to me that there may be another problem involved. The compensation for loss of earnings mentioned by my noble friend the Minister is payable only if the person is off work for 28 weeks. It seems to me that there are many cases at present of people in public services—especially, as it happens, in the police—where a person may have a substantial future loss of pension by being retired without in fact having had 28 weeks off work at the time immediately following the injury. Therefore, although the matter may already be covered, it is important to ensure that the scheme will provide for the effect of loss of pension even where the individual concerned has not been off work for 28 weeks immediately following the original injury.
§ Baroness BlatchI must now admit to being somewhat confused. However, I shall read what my noble friend said. Again, if someone is out of work as a result of criminal injuries but then returns to work within 28 weeks, the tariff will be paid and loss of earnings will not apply. However, if that person is subsequently out of work as a result of the criminal injury beyond the 28 weeks when loss of earnings starts to apply, then loss of pension will also be taken into account in the calculation. If I am wrong about that I shall return to the matter.
Lord BethelI am grateful to all those Members of the Committee who have spoken. I should like, first, to confirm to the noble Lord opposite that in mentioning the police I was only using them as an example. If the spirit of the amendment is accepted by the Government it would apply to all victims of criminal injuries. If there is a category involved, that is the category; namely, victims of criminal injuries and not just the police.
I was most encouraged by the response made by my noble friend the Minister about loss of pension rights being subsumed into loss of earnings However, perhaps 625 I may ask my noble friend to make that absolutely clear. I have the impression that she accepts the spirit if not the precise text of my amendment. In subsuming loss of pension rights, is it the case that it would be part of the scheme that my noble friend expects in the fullness of time to submit to the Committee under proposed Amendment No. 61?
§ Baroness BlatchYes it is. In the new scheme that will be put before Parliament that change will be made to make it absolutely beyond doubt that the loss of pension will be taken into account as well as loss of earnings.
Lord BethelI am most grateful to my noble friend. In that spirit, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 9 not moved.]
§ Lord Archer of Sandwell moved Amendment No.10:
§
Page 2, leave out lines 8 and 9 and insert
("(c) where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury or, if not normally employed, is incapacitated to a similar extent, additional compensation in respect of special expenses, payable from the date of the injury, shall be awarded for—
§ The noble and learned Lord said: We come now to another example or perhaps, more accurately, other examples of problems which arise when we begin with a totally inflexible scheme and then seek, somewhat belatedly, to introduce some flexibility into it. I wonder whether it would be more sensible to go back to the beginning and start again. However, if I made such a proposal to the Government I assume that it would not readily be accepted.
§ Clause 2 makes some attempt to repair the damage; indeed, subsection (2) sets out the heads of compensation which will be available under the scheme. Paragraph (c) makes provision for "special expenses", but that enigmatic provision is where the Bill leaves it. For further enlightenment one must turn to paragraph 23 of the draft scheme.
626§ Perhaps I should have said at the outset that it may be for the convenience of the Committee if we also discuss Amendment No. 24. Amendment No. 10 has two purposes. First, it seeks to write certain provisions into the Bill because we believe that they are of major importance. However, we have already discussed that principle and, if I were to invite the Minister to reply, I envisage that we would hear the arguments that she has already employed.
§ Secondly and more particularly for this purpose we are concerned to include under the heads of compensation a provision which on our understanding is absent from the scheme. Amendment No. 10 proposes to add paragraph (v) which makes provision for a head of loss which is recognised in the common law scheme of damages but, as I say, appears to be missing from the scheme.
§ One serious financial burden which may follow from a physical injury is that the victim is unable to do some of the things which are part of civilised living. I nearly referred to a woman but I suppose these days a woman or a man may be unable to do the housework. A person who takes a pride in the appearance of the house and its surroundings may be unable to keep the garden tidy and if those tasks are to be done that person may need to pay someone to do the work. As I say, I understand that that is now accepted in common law as a head of damages but it does not appear to be recognised as a special expense in the scheme. It is not a fanciful concept. For those who find themselves in that situation it is an intensely practical problem. I look forward with interest to hearing the response of the noble Baroness.
§ Amendment No. 24 repeats what is in paragraph 23 of the scheme but again adds another paragraph. Incidentally, for reasons which are not wholly clear to me, I note a reference to subsection (4). Clearly it should be paragraph (d). If we are confronted with that technicality today, it is a matter we shall have to face up to. The provision covers the case of someone who has provided care for a victim without making a charge and who has, himself or herself, suffered loss in consequence. Perhaps that person has had to give up work which he would otherwise have done, or something of that kind. Technically, that does not represent a loss to the victim but it seems in common fairness that recompense should be made. If the relative had charged for those services, that charge, as I understand it, would be recoverable as a loss to the victim. I hope that the Government see that justice indicates that where a person has not charged he might also be properly remunerated if he has lost financially in consequence. While we would like to see those provisions in the Bill we would be mollified if the noble Baroness felt able today to tell us that they will be written into the scheme. I beg to move.
§ 6.30 p.m.
§ Baroness BlatchThe aim of these amendments, as the noble and learned Lord said, is to bring onto the face of the Bill more of the more detailed provisions of the scheme itself, this time those relating to special expenses. For the reasons I have already explained we do not believe that that is necessary or indeed 627 appropriate. We had a long discussion a while ago about the point of principle involved, and I do not propose to run through those arguments again. Suffice it to say that I shall have to ask the Committee to reject these amendments for the reasons adduced previously.
With regard to the examples given by the noble and learned Lord, for example the reasonable cost of housework, or, possibly, child care, maintenance of the applicant's home, garden or means of transport and detriment—other than financial—suffered by a relative caring for a victim, which appears in the new clause which it is proposed to insert after Clause 2, it is clear from the draft of the scheme which we circulated in August what sort of things will be covered by the term "special expenses".
In general the new scheme will cover the "core" losses which are covered under the present arrangements. However, the scheme is not intended to cover each and every item which might be allowable under common law damages either now or in the future. That is because the scheme is no longer based on common law damages, and it is not the function of a scheme funded by the taxpayer to make good each and every potential loss which a victim might conceivably suffer. That is why the more peripheral losses of the kind mentioned by the noble and learned Lord, Lord Archer, will be outside the scheme's scope. Such losses are less susceptible to precise quantification and would provide endless scope for argument and, quite possibly, fraud. For example, how could one assess the extent to which an incapacitated victim had previously done his own gardening or housework or cared for someone else, and what that was worth? I am afraid that the term "other detriment" is far too wide and far too vague to be included in the scheme. For those reasons I must ask the Committee to reject the amendments.
§ Lord Archer of SandwellI was not wholly surprised when the noble Baroness said that the Government would object to writing these matters into the Bill for the reasons which we have debated already. I say simply that I am unrepentant. These seem to me to be matters of sufficient importance to be in the Bill. As regards the specific matters which I sought to raise with the noble Baroness, I was a little sorry that she regarded these as peripheral expenses. It seems to me that getting one's housework done or making one's garden look tidy are matters of some considerable importance to someone who has suffered an injury. The noble Baroness asked how we could possibly assess what those tasks are worth. In many cases people have to pay someone to perform those tasks and therefore there is no difficulty in assessing that. I fail to understand the Government's objection. If the noble Baroness had said that the Government would try to write this provision into the scheme I would have been mollified. However, I am not mollified and I propose to invite the opinion of the Committee on Amendment No. 10.
§ Baroness BlatchI do not rise to deter the noble and learned Lord from doing that. I simply rise to say that I hope that I have not been misunderstood when I used 628 the word "peripheral". I certainly did not use it in a derogatory sense. I meant that the provisions mentioned were peripheral to the core compensation which the Government have recognised; that is, the tariff for the injury, loss of earnings, care and aftercare for an injury. Those are the core considerations that have been accepted by the Government. It is in that sense only that these other expenses are considered peripheral. Although someone may have to pay for his garden to be done that is still no proof that it was a task that he necessarily did before his injury. It is difficult for the board to prove the validity of some of these other claims for compensation.
§ Lord Archer of SandwellI am grateful to the noble Baroness. I readily forgive her use of the word "peripheral". However, we want these heads of compensation in the scheme. The noble Baroness says that we cannot have them. I fear that we are no closer than we were before she explained her use of the word "peripheral". The noble Baroness said that one could not know whether someone had done his garden before he was injured. However, if I were injured on my way home this evening and the question arose as to whether I had done my garden I could easily invite members of the board or anyone else to look at the garden. It seems to me that the Government are clutching at straws to find reasons why a perfectly reasonable head of compensation should not be included in the scheme. In those circumstances I propose to invite the opinion of the Committee.
§ 6.37 p.m.
§ On Question, Whether the said amendment (No. 10) shall be agreed to?
§ Their Lordships divided: Contents, 37; Not-Contents, 95.
629| Division No. 2 | |
| CONTENTS | |
| Archer of Sandwell, L. | Judd, L. |
| Blackstone, B. | Kilbracken, L. |
| Carmichael of Kelvingrove, L. | Lockwood, B. |
| Cocks of Hartcliffe, L. | Longford, E. |
| David, B. | Macaulay of Bragar, L. |
| Dean of Beswick, L. | McIntosh of Haringey, L. |
| Donoughue, L. | Mar and Kellie, E. |
| Dormand of Easington, L. | Monkswell, L. |
| Dubs, L. [Teller] | Morris of Castle Morris, L. |
| Eatwell, L. | Sefton of Garston, L. |
| Ewing of Kirkford, L. | Serota, B. |
| Falkender, B. | Simon, V. |
| Falkland, V. | Stoddart of Swindon, L. |
| Farrington of Ribbleton, B. | Taylor of Blackburn, L. |
| Gladwin of Clee, L. | Taylor of Gryfe, L. |
| Graham of Edmonton, L. [Teller] | Turner of Camden, B. |
| White, B. | |
| Jay of Paddington, B. | Williams of Elvel, L. |
| Jeger, B. | Winchilsea and Nottingham, E. |
| NOT-CONTENTS | |
| Abinger, L. | Bethell, L |
| Aldington, L. | Blake, L. |
| Balfour, E. | Blaker, L. |
| Barber, L. | Blatch, B. |
| Beloff, L. | Blyth, L. |
| Boardman, L. | Lindsey and Abingdon, E |
| Borthwick, L. | Long, V. |
| Boyd-Carpenter, L. | Lonsdale, E. |
| Brougham and Vaux, L. | Lucas, L. |
| Cadman, L. | Lucas of Chilworth, L. |
| Carnegy of Lour, B. | McColl of Dulwich, L. |
| Carnock, L. | Macleod of Borve, B. |
| Chesham, L. [Teller] | Merrivale, L. |
| Courtown, E. | Mersey, V. |
| Craigavon, V. | Miller of Hendon, B. |
| Cranborne, V. [Lord Privy Seal.] | Milverton, L. |
| Monson, L. | |
| Cross, V. | Mowbray and Stourton, L |
| Cumberlege, B. | Munster, E. |
| Dean of Harptree, L. | Murton of Lindisfarne, L. |
| Dixon-Smith, L. | Napier and Ettrick, L. |
| Downshire, M. | Norrie, L. |
| Eccles of Moulton, B. | Northesk, E. |
| Elles, B. | O'Cathain, B. |
| Faithfull, B. | Orkney, E. |
| Flather, B. | Orr-Ewing, L. |
| Fraser of Carmyllie, L. | Pearson of Rannoch, L. |
| Gardner of Parkes, B. | Pender, L. |
| Gisborough, L. | Prentice, L. |
| Goschen, V. | Rawlings, B. |
| Greenway, L. | Rennell, L. |
| Harmsworth, L. | Renton, L. |
| Harrowby, E. | Rodger of Earlsferry, L. |
| Harvington, L. | Seccombe, B. |
| Hayhoe, L. | Sharples, B. |
| Henley, L. | Shaw of Northstead, L. |
| Hertford, M. | Skelmersdale, L. |
| HolmPatrick, L. | Strange, B. |
| Hooper, B. | Strathclyde, L. [Teller.] |
| Howe, E. | Sudeley, L. |
| Inglewood, L. | Swinfen, L. |
| Jeffreys, L. | Thomas of Gwydir, L. |
| Kimball, L. | Trumpington, B. |
| Kingsland, L. | Tugendhat, L. |
| Lane of Horsell, L. | Vivian, L. |
| Lauderdale, E. | Wakeham, L. |
| Leigh, L. | Wynford, L. |
| Lindsay, E. | Young, B. |
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.46 p.m.
§ Baroness Blatch moved Amendment No. 11:
§ Page 2, line 11, at end insert ("or otherwise determined in accordance with the Scheme").
§ The noble Baroness said: Amendment No. 11 is intended to make it clear beyond doubt that the scheme may provide for awards in fatal cases to include, in addition to the fixed tariff award, additional amounts calculated in accordance with the scheme. That will allow payment to be made for such other elements as reasonable funeral expenses and loss of dependency and support. Those elements are not fixed or specified, and so provision could not be made for them under subsection (2)(d) as it stands at present. Rather, they will be calculated by reference to the circumstances of the case, not on the basis of the fixed tariff. The amendment simply ensures that such payments can properly be made. I beg to move.
§ On Question, amendment agreed to.
630§ Lord Archer of Sandwell moved Amendment No. 12:
§ Page 2, line 11, at end insert ("which amounts may include additional compensation to reflect the extent the claims officer is satisfied the applicant was financially dependent on the deceased and (in the event of the deceased's income at the time of death being limited to state benefits) the extent the claims officer is satisfied the applicant was likely to become financially dependent on the deceased.").
§ The noble and learned Lord said: Perhaps I may begin by expressing our appreciation of the open-mindedness shown by the Government up to this stage about fatal injuries. The concessions in Clause 2(2)(e), as elaborated in the scheme, are very much to be welcomed.
§ One of the concessions that the scheme includes is the possibility of additional compensation where the claimant was financially dependent on the deceased. So far so good. However, there is one limitation which puzzles us. It is provided that a dependency will not be established if the deceased's only normal income was from state benefits. We are puzzled for two reasons. First, if someone was in receipt of benefit which included an element for dependent family we are not clear why that ought not to be reflected in compensation if that income ceases to be forthcoming. If there is a reason for that it is not self-evident.
§ There is a further point which puzzles us. We wonder whether it is really the intention to exclude the family of a victim who had reasonable prospects of future employment but who happened at the moment of his or her death to be dependent on public benefits. If a person had been receiving a small amount in wages at that time he would not have been excluded. Why exclude him because at that moment he happened to be fully in receipt of statutory benefits? We move the amendment more in bewilderment than anger. I await the response of the noble Baroness. I beg to move.
§ Baroness BlatchI hope that I can clarify the point for the noble and learned Lord. The amendment seeks to ensure that in fatal cases payment may be made to reflect the applicant's financial dependency on the deceased victim. But, as the noble and learned Lord already knows, the amendment is not necessary to secure that. The scheme already provides for that.
As we made clear when we first announced the broad parameters of the enhanced tariff scheme, it was always the intention that in fatal cases, in addition to the fixed tariff award, additional payment would be made for loss of dependency and loss of parental support. When we came to draft the scheme itself we quickly realised that the powers conferred by Clause 2(2)(d) of the Bill were not in fact adequate for that purpose. That is why we brought forward an amendment of our own—we have just discussed it—to correct that omission.
The government amendment will ensure that loss of dependency can be paid. It will also ensure, as this amendment does not, that we will be able to pay for loss of parental support as well.
The new scheme will carry forward the position from the previous ones whereby financial dependency cannot be founded on social security benefits which the deceased has received. It nevertheless allows an 631 assessment of dependency to be made where, for example, the deceased was only temporarily unemployed or where there was otherwise clear evidence that the deceased was about to start work, thereby enabling a reasoned assumption to be made about the extent to which his family had lost the benefit of his potential earnings.
If one partner dies who at the time of death had been receiving state benefit, that state benefit ceases on his death. If the dependent partner, still living, qualifies for state benefit in his or her own right, that issue will be addressed by the state. If the need for state benefit disappears, the person will not receive state benefit. State benefit is paid only where the beneficiary qualifies for it. For example, if state benefit were given to a husband who subsequently dies as a result of a criminal injury and the wife is left bereft without means of support she will qualify for state benefit. It is not the scheme but the state that should compensate for the particular circumstances of a person if he or she qualifies under the rules of state benefit.
§ Lord Carlisle of BucklowThe Minister will remember that the original abortive scheme as published did not allow for any payment to the dependants of those who were killed. One of the most major and welcome changes between the previous and present proposals is the fact that payments are to be made to those who are shown to be dependent on someone who, sadly, has been killed.
Perhaps I may ask one question out of interest. Since the Government have made that change, have they given any consideration as to why they leave the fatal award—it is the equivalent of the bereavement award—at a higher figure than at present and higher than the bereavement award figure? Had they consulted the Lord Chancellor's Department when they made that decision? What pressure do they believe that that will have on the Lord Chancellor's Department to raise the bereavement award in other cases?
§ Baroness BlatchI cannot answer the second part of my noble friend's question. The Lord Chancellor's Department was consulted in arriving at this level of tariff.
§ Lord Archer of SandwellI am grateful to the noble Baroness. I understand that if the dependant receives state benefit after the death, account will have to be taken of that factor in calculating the amount of compensation. I do not believe that that is an issue between us. That does not require the blanket condition in the scheme. But what of this situation? The dominant wage earner has been unemployed at the time of his or her death but had every expectation of receiving employment within the next week, fortnight or month. That has nothing to do with whether someone else benefits from state sources. It represents a genuine loss of dependency. If the noble Baroness explained that, I confess that I did not follow the argument. If there is anything else to explain, I shall be happy to listen. If not, we shall have to continue to differ.
§ Baroness BlatchWhile I have a clear understanding of what I said I am always prepared to go back to the record to see how I answered the noble and learned Lord and to read what the noble and learned Lord asks me now.
My understanding is that if person A is in receipt of state benefit the other person, the husband or the wife, who is a dependant will represent part of the calculation of that benefit. When the person dies his or her claim for state benefit dies with him or her. However, the element representing the dependent monies for the wife or husband would be recalculated by the state. It is not for the scheme to compensate for that state benefit, but genuine qualification for state support which has ceased with the victim's death is addressed by the state.
I shall go back to the record and will continue to consider the matter. I believe that I am right in my understanding of it.
§ Lord Carlisle of BucklowWith great respect to the Minister, surely the noble and learned Lord, Lord Archer, has a point. If someone is temporarily not working at the time of his death, it does not mean that there is no dependency if he were about to take up another job. One has to consider the whole work record in assessing whether there was dependency, whether he had been providing for the family and whether it would be reasonable to assume that he would provide again through work rather than referring to the short period that he was on state benefit. As I understood it, that was the point made by the noble and learned Lord, Lord Archer.
§ Baroness BlatchOn that specific point, I have made it absolutely clear that if the person were temporarily unemployed, or there was an expectancy that the person was about to go to work, that would be a loss of dependency which would properly be catered for in the compensation arrangements.
§ Lord Archer of SandwellI am grateful to the noble Lord, Lord Carlisle. That does not diminish my gratitude to the noble Baroness. I had put two hypotheses to her, not one. I believe that that is where the confusion arose.
As she correctly appreciated, my first hypothesis related to a person in receipt of state benefit which includes an element for dependence. I believe she answered that point and I am grateful.
As the noble Lord, Lord Carlisle, pointed out, the other hypothesis related to someone who is temporarily in receipt of state benefit but who has every likelihood of shortly being employed, and where there will be a dependency. The noble Baroness states that that is provided for in the scheme. I confess that if that were true we have probably misconstrued the scheme. Perhaps we may consider the matter together at some stage. If we agree that the measure should include that provision, I am content.
§ Baroness BlatchI think that I can be helpful. I repeat the point. If the unemployment is temporary—someone would be expecting to obtain a job if a job is available, or had a job lined up which he had not yet taken up—there would be a potential for employment, a potential for earning, which the partner would lose in 633 the event of a death as a victim of a criminal injury. In that case the scheme would be compensating for potential loss of earnings from that person rather than for losing state benefit.
§ Lord Archer of SandwellI think that I follow that argument. We are close enough now to make it imperative that I seek the Committee's leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 13 to 15 not moved.]
§ [The sitting was suspended from 6.59 to 8 p.m.]
§ Lord McIntosh of Haringey moved Amendment No. 16:
§
Page 2, line 22, at end insert—
("( ) The person determining an award of compensation may increase the standard amount of compensation shown in respect of the relevant description of injury in the Tariff by a sum not exceeding 20% of the Tariff amount to reflect special factors relating to the applicant including but not limited to the applicant's—
§ The noble Lord said: In rising to move this amendment, I shall also speak to Amendment No. 17. These amendments refer, in what I believe to be a constructive way, to the issues raised by the noble Lord, Lord Carlisle, on an earlier amendment. He suggested the possibility of a band of compensation for each of the amounts specified in the tariff. Our suggestion is in my view more limited, since it makes it possible for the person determining the award—be it a scheme manager, claims officer or adjudicator—to increase the standard amount of compensation shown by a specified percentage to take account of differences of sex, occupation, intended occupation and of dominant limb. Amendment No. 17 proposes a wider range of discretion for differences of age.
§ The unfairness of the undifferentiated tariff has already been adequately expressed both in earlier debates today and at Second Reading. It is the case—and I do not believe that anybody can deny it—that the tariff as specified does not make an adequate distinction between individuals, each a victim of a crime with the same injury, who suffer in a totally different way owing to their circumstances.
§ The examples are numerous. A young child who loses an eye clearly suffers very much more over his or her lifetime than an elderly person. The disability lasts for many decades longer. Loss of fertility—one of the items in the tariff—is clearly enormously different for a young woman, or indeed a young man, than for somebody older. As I said at Second Reading, a facial scar is unimportant to an unattractive person like me but very important to a young woman.
§ We have discussed the issue of dominant and non-dominant limbs. I have searched the scheme and the tariff very carefully and I find no reference to people being left-handed or right-handed. When the Minister was kind enough to meet me at the end of last month I 634 was assured that the distinction was provided for, as the tariff provided for the dominant limb. Even so, it is not stated. It mentions "left" and "right", and distinguishes between the two. However, I find it difficult to understand exactly how the preference for the dominant limb is achieved.
§ While making this point, perhaps I may correct an inadvertent error in the Hansard report of my Second Reading speech. What I said was that I was gauchiste, which is Left-wing, and gauché, which is left-handed. Hansard recorded it as "gauche". I may be gauche as well, but I am definitely gauché. I should be grateful if Hansard would put the acute accent on the final "e".
§ For all these reasons, which are well-known to the Committee and which represent real differences in the suffering caused to victims of crime, we suggest that some method of differentiating must be found. We propose providing for the possibility of an increase of the tariff by a sum not exceeding 20 per cent. for differences of sex, occupation or intended occupation: clearly those in manual occupations suffer more from certain kinds of physical injury than those in sedentary occupations, and from injury to the dominant limb in a case of injury to an upper limb; and in the case that I have already exemplified provision is made for differences in the age of the applicant.
§ In parenthesis, perhaps I may say that we had a little difficulty in trying to write these issues onto the face of the Bill. The scheme is rather badly drafted. It sometimes refers to the person involved as a "person", sometimes as an "applicant" and sometimes as a "victim". I hope that when any new scheme is drawn up, some rationality will be applied to it. I know that these elements of the scheme come from different places, but they could have been rationalised prior to be its being placed before your Lordships.
§ I do not think I need continue with the argument. I am not wedded to the particular solution that we have found. I am not wedded to 20 per cent. or 50 per cent. But I am wedded to the idea that any scheme which is to be just, and seen to be just, must reflect these differences. I await with interest the Minister's remarks on how that can be achieved. I beg to move.
§ Lord AcknerI had considerable sympathy with Amendment No. 6, moved by the noble Lord, Lord Carlisle. However, I also accept that if bands are brought in the concept of a tariff is substantially modified, if not substantially changed. I therefore did not speak in favour of the amendment. Clearly the Government are insistent that there should be a tariff scheme and the justification, which is wholly understandable, is that this provides a much quicker determination than using the common law approach.
On the other hand, one would expect that the Government would wish the scheme to be fair—not only to be perceived as fair but to be fair in fact. The Government will have to accept that the scheme will be perceived as being in many respects unfair for the simple reason that the compensation is not related to the victim; it is related to an injury in the air, not an injury to a particular person. Therefore the compensation is just a rough and ready guess at what might be 635 appropriate. If the scheme is to be fair, the Government will have to give way. If they do not give way, it means that they are insistent that the scheme will be unfair in many cases.
It seems to me that what is proposed here is a compromise. The amendment does not propose bands, since that would be to bring in the common law approach—the bands that are set out in the Judicial Studies Board's publication for the assistance of judges who have to deal with the common law. What is proposed is a measure of discretion based upon a percentage uplift, to use that horrible expression. That may mean that one disadvantage of the scheme is that it will have to be operated by a civil servant of a somewhat higher IQ than that anticipated at the moment, but that may be no bad thing.
§ Lord McIntosh of HaringeyPerhaps the noble and learned Lord will permit me to intervene. I do not believe he would wish to assert that ranks in the Civil Service were associated with different IQs. Perhaps it would be more appropriate if he used the words "seniority" or "experience", but junior civil servants also have high IQs.
§ Lord AcknerI do not shrink from the reality that mental capacity is meant to have some connection with the position that is held. I am surprised that the noble Lord flinches from that inference. Clearly, if there is to be a measure of discretion which is exercised by a judicial function, the person who exercises that discretion must be better aware of the subject with which he deals. However, all that is by the way. I simply suggest that what is proposed is a compromise. It provides a measure of discretion of a limited kind. Of course, it will result in a number of people being dissatisfied that the discretion has not been exercised in their favour, which is one of the disadvantages of discretion. What needs to be balanced is the demand for a scheme which clearly is not in many respects unjust and unfair against the administrative disadvantages of providing a situation in which there are more appeals and effort involved in the decision-making process. I believe that to use a percentage increase as the measure of discretion is a fair compromise. Like the noble Lord, Lord McIntosh, I am not wedded to a particular percentage, as long as it provides a realistic element of discretion. Therefore, in principle I support these amendments.
§ Lord Rodgers of Quarry BankI should like to add my support to the amendment moved by the noble Lord, Lord McIntosh. Because he was intent on correcting an earlier report in Hansard, he was perhaps rather modest in moving this amendment. It is a very important debate, though it goes back to matters discussed earlier in the course of the amendment moved by the noble Lord, Lord Carlisle.
As the noble and learned Lord, Lord Ackner, has said, the tariff is inevitably rough and ready. However, the Government have settled upon it, and all of us find it very difficult to say categorically, in view of the previous discussion, that that may not be the right course. Having settled on that course and agreed on a 636 tariff of the kind before us now, it is up to the Government to consider whether there is any way of differentiating, within the idea of a tariff, between the very different circumstances of individuals.
The noble and learned Lord, Lord Ackner, also said that the scheme had to be fair and seen to be fair. Although only experience will show, in my judgment there is a very real danger that the good intentions behind the scheme will be undermined by the extent to which inexperience is seen to be unfair. Whatever the Committee may decide, and whatever Parliament may eventually contrive in this Bill, I find it very difficult to believe that within the next four or five years proposals will not be made to have a scheme which includes the flexibility that is now absent. How much better it would be if the Minister today or on Report or at a late stage could say that within the idea of the tariff there would be a degree of banding.
The noble and learned Lord, Lord Ackner, said that, if bands were introduced, the idea of a tariff would be substantially changed. I do not agree with him. I believe that the idea of a tariff remains even if banding is introduced either in the terms of this amendment—to which the noble Lord, Lord McIntosh, says he is not committed in detail—or in some other way. It is possible to have flexibility to take account of differences of age, sex and circumstances and yet preserve the idea of a tariff which will make it much easier to administer the scheme and make clear to those who may wish to claim under it what claims they can make. What is being asked for is a measure of discretion. I hope that, even if the Minister feels unable to accept this amendment, she will be prepared to look again at the possibility of an element of discretion being introduced into the basic scheme to which the House has been committed.
§ 8.15 p.m.
§ Lord Macaulay of BragarIt appears to me that this amendment meets the issue raised earlier in the debate, in that it introduces a compromise between a tariff scheme and a common law scheme, having regard to the equation that compromise equals fairness to the individual who has been injured. I hope that the Minister will take on board what has been said by all parties in support of this amendment.
I am sure that the noble and learned Lord, Lord Ackner, did not mean to insult any of the civil servants who were running this scheme under great difficulties. I can assure him that they are working under tremendous pressure from all sides. Having worked with them in London and Glasgow, I can assure the Committee that in both cases there are tightly structured and controlled teams of civil servants. Whatever happens to this particular Bill, those civil servants make decisions which enable the scheme to function. Without their dedicated service this scheme would have ground to a halt about four or five months ago following the Home Secretary's illegal actings.
§ Baroness BlatchTaken together, these amendments would allow the tariff award to be increased by up to 20 per cent. to reflect so-called special factors, and by a further 50 per cent. on account of the applicant's age; in 637 other words, in some cases the tariff award could be increased by up to 70 per cent. That is on top of the most generous scheme in the world. I have noted and taken account of the points spoken to by everyone in the debate.
The noble Lord, Lord McIntosh, is not hooked on a particular percentage. One can negotiate percentages. However, whatever they are, the percentages are in addition to a very generous scheme. We find this unacceptable. The whole point of a tariff scheme is to have a quick, transparent means of getting money to victims of crimes of violence. It does away with the individual assessment inherent in a scheme based on common law damages, which is inherently more complex and tends to militate against speedy decision taking. I take gentle issue with the noble Lord, Lord Rodgers of Quarry Bank. Any introduction of discretion, which would sweep all the way through the list—mention was made of age, whether somebody was pretty or ugly, and all sorts of exceptions—would invalidate the whole point of a tariff scheme. There is a legitimate debate about whether there should he a tariff or common law scheme, as mentioned earlier by my noble friend Lord Carlisle of Bucklow. But once a tariff scheme has been accepted the integrity of the system needs to be thought about.
As the Government have sought repeatedly to explain, there is no right figure that can compensate the blameless victim for the pain and hurt that he or she has suffered as a result of a crime of violence. Under the enhanced tariff scheme we do not try to make a finely judged assessment of compensation, in the sense of attempting to put the individual back into the position in which he or she would have been had the attack not occurred. What we aim to do is to make a generous payment in recognition of society's concern for the blameless victim of a violent crime. In our view, a simple, transparent system, where the awards are based on the most typical award for the injury concerned—the median award—is the right way to do that. I say to the noble Lord, Lord Rodgers of Quarry Bank, that the scheme is not that rough and ready. The scheme is based on actual awards made by the present system, which is based on the common law approach. Over a period the average has been taken, and in every case the dominant injury is in the tariff. So we have erred on the generous side in that sense. It is not so rough and ready, as the noble Lord said.
We therefore cannot accept the amendments. They would mean in effect reverting to a system of individual assessment, very much as happens under the present scheme. The introduction of such subjective assessments would inevitably mean that cases would take longer to settle. It would also mean that requests for review and subsequent appeal would become the norm, since claimants—or their representatives—would have nothing to lose by claiming that there were special factors in their case. There would inevitably be upward award drift, with more and more awards tending to be tariff plus "something additional". That would take us back to the position where costs would no longer be predictable or controllable and where claims took an increasingly long time to settle as their handling became increasingly convoluted and subject to dispute.
638 Where the victim is particularly badly injured or the effects of the injury are most prolonged or serious, the new scheme includes provision for the claimant to receive additional compensation for loss of earnings and the cost of special care. In such more serious cases, that will enable variations in impact of the same injury on different people to be taken into account, so that, for example, a young person who loses an eye is likely to receive a considerably higher award than a pensioner who suffers the same injury.
Finally, I repeat the point that the tariff awards are in fact based on the injury to the dominant limb. There is therefore no case for adding to the tariff award for such an injury. The noble Lord, Lord McIntosh, mentioned references to "right" and "left". I have looked all the way through the tariff. There are references to losing a hand or both hands, a leg or both legs, but there is no reference to right legs and left legs or right hands and left hands. If we are being logical, there is a case for reducing the award. If the argument in this Chamber is for a relativity between the award for a dominant limb and the award for a non-dominant limb, if someone would like to bring forward an amendment, that can be considered. I feel that one should take what there is on the table at the moment and be generous all round rather than consider, for artificial reasons, introducing a relativity. If there are to be relativities, at the moment we rather favour the non-dominant injury and pay the right award based on actual awards for the dominant injury.
§ Lord McIntosh of HaringeyWith the best will in the world, I call that a defence of despair. The Minister has done nothing to defend the tariff that is before us except to say that it is transparent. If the only justification for the tariff is transparency, it may be that it is transparent because there is nothing there.
In these amendments we do not propose a fundamental departure from the tariff for physical injury. We may have to do that for certain kinds of injury, and my noble and learned friend Lord Archer will refer to that later. But, so far as concerns physical injury, we accept that the tariff is a gallant attempt to categorise the enormous complexity of different types of injury which may occur as a result of crime.
The Minister is right to say that there is no difference between "left" and "right". She is also right in saying that, if one were to be logical about the matter, we say that we are being too generous. If I were to lose my right hand, it is less serious than if the Minister were to lose her right hand and I should be paid less. The actual amount will depend on the budget for the scheme, inflation and all sorts of things. But the Minister has never sought to deny that there is a real difference between the dominant upper limb and—whatever the alternative is—the "recessive" in genetic terms upper limb. I believe that she has not answered that question.
In these amendments we are not departing from the principle of the tariff. We accept that there has to be some form of an enhanced tariff. We accept that in certain circumstances the loss of earnings payment will compensate for particular difficulties and extra expenses. But, once we have accepted that there has to be a tariff, surely it is right that the tariff should be as 639 close as possible to reality. What we propose is not a departure from the tariff but an extra dimension for certain elements of the tariff.
When introducing his amendments earlier, the noble Lord, Lord Carlisle, said that he was suspicious of our amendments because they would open too much of the tariff to additional payments. I do not believe that, if one looks at the wording, that is the case. It would be evidence that a very large number of injuries in the tariff are not susceptible to change by age, sex, occupation or dominance. It is only those to which that really does apply, particularly in the case of dominance for upper limbs, that it is a serious issue.
I said at the beginning that I was not wedded to the percentages. Therefore I shall not be caught in the Treasury's trap of being told that I am proposing an additional expenditure of 70 per cent. of £460 million and that that is the Labour Party's policy for the next general election. In case anybody starts adding that to the list, let them forget it, because it will not work.
The Minister has not adequately defended the tariff. It could be made better than it is. It could reflect reality better than it does. The Government are in a better position to try to do that than I am. If they are not willing to do so, I shall try again. Subject to that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 17 not moved.]
§ Lord Macaulay of Bragar moved Amendment No. 18.
§ Page 2, line 26, after ("State") insert ("after consulting such persons or bodies as he considers appropriate").
§ The noble Lord said: It may be for the convenience of the Committee if I speak also at this time to Amendment No. 67. They both raise the same issue; namely, that there should be proper consultation between the persons or bodies affected by the introduction of the new scheme before the tariff scheme is laid before this Chamber. The noble Baroness the Minister has already spoken in relation to this matter. I beg to move.
§ Baroness BlatchI am not clear why these amendments should be thought to be necessary. If the intention is to require the Secretary of State to consult before changing the tariff, the amendment to Clause 10 would achieve it, making the amendment to Clause 2 unnecessary and superfluous. Accordingly, I shall confine my remarks largely to the Clause 10 amendment.
Clause 10 requires the Secretary of State to lay before Parliament the draft of certain provisions or amendments to the scheme. The Clause 10 amendment would first require him to consult such organisations as appear to him to be representative of interests substantially affected by the proposals and such other persons or organisations as he considers appropriate. I suspect that we can all see the benefits of appropriate and timely consultation. Any well organised administration would want to use its discretion to seek the views of informed individuals and organisations on a particular issue when that was appropriate. But this 640 amendment goes further than that and is too prescriptive. It requires consultation before any change to the tariff whether or not such consultation is likely to be helpful either to the Secretary of State or the bodies or persons consulted. I believe that that is a recipe for unnecessary bureaucracy, delay and frustration.
There may well be occasions when a very minor change might need to be made to the tariff, for example, to make a very small technical change to an injury description or to make a minor change to the accompanying notes, which may even emanate from the authority itself. In such circumstances I have no doubt that we would want to consult with the authority and the appeals panel. But I cannot see that any wider consultation is likely to be helpful, if one has to consult simply for the sake of consulting.
In short, I can assure the Committee that we would always want to consult as necessary and appropriate before recommending to Parliament any changes to the tariff. Let us not forget in this connection that under the enhanced tariff scheme the Government are not free to change the tariff administratively. They have first to secure parliamentary approval by the affirmative resolution procedure. With such a safeguard I see no need to put such an unnecessary and overly prescriptive amendment on the face of the Bill. However, I do not want anything I have said in response to the amendment to indicate that we do not regard consultation as an important part of the process.
§ 8.30 p.m.
§ Lord Macaulay of BragarI am grateful to the noble Baroness for that comprehensive and informative answer to Amendments Nos. 18 and 67. We appear to be getting into some difficulty as to the difference between the Bill we are considering and the scheme. The scheme is not before the Committee at the moment, as I read it, though I may be wrong. It will come before the Chamber at a later stage. In this debate we appear to be cross-referencing the scheme and the Bill, and we are dealing purely with the Bill.
Can the noble Baroness tell the Committee whether a final consultation date was given in relation to the Bill before us, and if so what that final date was? I am sure that many Members of the Committee have been inundated with information from various organizations—I shall not name them because that would not be fair—concerned with the introduction of the new scheme. Was there a consultation period for the purposes of the Bill? If so, when was the end of that consultation period? What response was received in relation to it and from whom?
§ Baroness BlatchAt some point during the afternoon I explained that the Bill is largely an enabling Bill to allow a scheme to be established. The Committee accepted that that scheme shall not be on the face of the Bill but will nevertheless be subject to parliamentary approval. The whole of the scheme will initially be subject to parliamentary approval under the affirmative resolution procedure.
Consultation was substantially in regard to the scheme; for instance, the setting up of the scheme and everything to do with it which will affect those who will 641 run it and those who will benefit from it. That is what was consulted upon. The amendments to Clause 10, which is the Bill, are to do with making sure that we allow the scheme in its entirety to be presented to Parliament through the affirmative resolution procedure.
That consultation ended at the end of August. We have not closed the door on receiving comments. We are still receiving comments into the department and no one is setting their face against them. Indeed, this debate will be used to reflect on the details of the scheme and already this evening I have had words with the noble and learned Lord, Lord Archer of Sandwell, on the fringe of the debate in relation to one of the amendments discussed this evening. While the principle of the response to the amendment does not change, nevertheless we shall look again at the clarity of the words in the scheme to reflect what I have said across the Dispatch Box. In that sense there is a continuing dialogue in regard to the scheme until it is presented to Parliament for its approval.
§ Lord Macaulay of BragarAgain I am grateful for that explanation. I received certain indications that the end of the consultation period was set out as the end of October, which we have not yet reached. I was obviously ill-informed and apologise to the noble Baroness for raising the point.
In connection with the general principle encapsulated in the two amendments, we must be careful on all sides of your Lordships' Chamber that an enabling Bill does not become a disabling Bill. With that observation—I do not know whether or not it is pertinent—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Macaulay of Bragar moved Amendment No.19:
§ Page 2, leave out line 28.
§
The noble Lord said: With the leave of the Committee, in moving Amendment No. 19 I shall deal also with Amendment No. 20 because they really run together. Amendment No. 19 is a probing amendment which raises a question in relation to the Secretary of State having the power to remove the "description" of an injury. The word "description" is not defined. Is it deemed that the Secretary of State in the future will be able to remove the injury itself—for instance, a "severely broken leg"—or the description of the injury; that is, the word "severely"? Are the words,
by removing a description of injury",
§ happily phrased within the context of the Bill? I put it no higher than that. This is a probing amendment to see what the word "description" means in the context of the Bill.
§ Amendment No. 20 is perhaps more important because it gives the Secretary of State the power either to increase or reduce the standard amount of compensation. If one's nose is broken in 1995, can the Secretary of State come along in 1996 and reduce the award one received in 1995? I am not sure what the phrase means, especially in relation to the cases we discussed earlier in regard to child abuse, sexual abuse and so forth, which I shall not repeat.
642§ A tariff has been drawn up. We have all seen it and the noble Baroness was kind enough to send me a copy some time ago. If the tariff scheme has been drawn up as representing the values for awards as of now, how can the Secretary of State reduce the value of an award, bearing in mind that we live in a time of inflation, even with the Government's best expectations? It may be that in three years' time they hope to bring inflation down to nothing, but I would have thought that that was a pious hope.
§ Assuming that inflation runs at 1.5 per cent. per annum, how can an award be reduced for someone who received a broken nose in 1995, whose claim is settled in 1997, because the Secretary of State says that it is worth less than it was in 1995? It is perhaps a conundrum. I leave it with the noble Baroness and I am sure that all those involved will be interested to hear her reply. I beg to move.
§ Lord Carlisle of BucklowPerhaps I may take this opportunity to make one point to my noble friend the Minister. With respect to my noble colleague on the hoard, the noble Lord, Lord Macaulay of Bragar, I do not agree with his intention to remove the words "or reducing" in Amendment No. 20. However, I ask the Minister in all seriousness what thought has been given to the views expressed by the board in relation to some of the figures in the tariff.
I am not trying to be cheeseparing; I am concerned generally about the overall cost of the scheme. When the original tariff was produced, it was not intended by the Government, sadly, that any loss of wages or future care should be taken into account. As a result, as we know if we look at the top end of the tariff, figures of £250,000 were put in as general damages for quadriplegia or tetraplegia and £175,000 for paraplegia. We felt it our duty to point out to the Home Office that those figures are way above those accepted by the courts as appropriate for general damages for tragic accidents of that kind.
As the Minister knows, as well as ignoramuses like myself and the noble Lord, Lord Macaulay, the board also consists of several practising personal injury senior barristers and solicitors. Their assessment was that the going award although that is perhaps a cheap way of putting it and I shall substitute the phrase, the normal award, for tetraplegia or quadriplegia for general damages in the High Court is £125,000 and for paraplegia around £100,000.
I am concerned, and those who practise particularly in the personal injuries field are concerned, that the Government are to publish a tariff with figures apparently double the size for the general damages aspects only of tetraplegia, paraplegia and these other very serious injuries. What thought have they given to the effect of the inflation on damages in the civil courts and to the effect on insurance companies generally? It was clearly right when there was not an intention to pay loss of wages, future earning capacity or loss of care—I totally agree with their intention not to pay—to put in figures above the normal figure for general damages. But once they had decided and conceded on the issue of paying for loss of earnings and future care I do question—not on behalf of the taxpayer but on behalf, I 643 hope, of the responsible view from the legal profession—whether it is right to leave figures in the tariff which roughly are double the amount being paid by the civil courts at the moment without any apparent consideration of the effect this may have on inflation. I raised this matter under the question of the bereavement award under fatal accidents and I think it only right to raise it again now.
§ Baroness BlatchPerhaps I may take that point first. My noble friend will understand if I do not give him a specific answer at this moment as we have not yet determined the tariff that will be put before both Houses as a final document. All the comments that have come in and all the consultation is still being considered. The point made by my noble friend is part of that consultation and we shall consider it.
The noble Lord, Lord Macaulay, asked what will happen to someone who makes a claim in 1995 which is dealt with in 1995 or 1996 when the new scheme is in place. It will be dealt with under the rules applying when the applicant applied. I have referred to one change that will be made. There will be an amendment to the present scheme in order to allow for structured settlements. That is intended to follow Royal Assent.
The power provides for the Secretary of State to revalue the standard amount of compensation payable in respect of a particular description of injury. It is also the power under which all or part of the tariff would be revalued. Increases or reductions in tariff amounts, or removal of injury descriptions from the tariff, could be required for sound, practical reasons. For example, it is possible that a number of broadly similar injury descriptions might need to be amended under Clause 2 (6)(a) or (d) of the Bill if experience showed that the tariff could better describe injuries of the relevant type. It might be necessary to add a new, more serious injury description, while reserving an existing one for less serious injuries for which a lower amount was now appropriate. Or it might be better to describe an injury in a new way, which might make the former injury description redundant. Leaving the old description in the tariff in such circumstances would create unnecessary confusion.
All the reasons I have just given are also the reasons why a scheme under the affirmative resolution procedure is so necessary, to allow for making sensible changes to the scheme which will arise from the operation of the scheme. Perhaps I may also remind the noble Lord, Lord Macaulay—this is probably his underlying concern—that the Secretary of State is not free to make any changes to the tariff. Under the arrangements I have spelt out today, any changes to the tariff will require parliamentary approval by the affirmative resolution procedure and/or the negative resolution procedure. Thus, if Parliament is not happy with the changes the Secretary of State wishes to make to the tariff under this clause—in this instance, if it does not agree that injury descriptions should be removed or a lower tariff value substituted—Parliament can simply refuse approval for the proposed changes. That is the safeguard in the Bill. To go back to what the noble Lord, 644 Lord Macaulay, first said, no Home Secretary is in a position simply to change anything to do with the scheme or the tariff within the scheme.
§ 8.45 p.m.
§ Lord Macaulay of BragarI am obliged to the noble Baroness for her reply. One of the difficulties with the Bill, which we have had to consider at fairly short notice, is in its operation. Where is responsibility to lie? There is a theme throughout the Bill with regard to the managers, office managers and so on that none of them will be deemed to be acting on behalf of the Secretary of State. We shall perhaps come to that at a later stage, if not during Committee then certainly on Report, and ask where responsibility lies for the administration of the Bill. I am sure that what the Minister said will be noted with interest by those concerned with these matters. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 20 not moved.]
§ Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 21:
§ Page 2, leave out line 33 and insert ("Provision shall be made for the Scheme to").
§ The noble Lord said: This amendment has been grouped with Amendments Nos. 35 and 51. For the convenience of the Committee perhaps I may say that I do not intend to deal with Amendments Nos. 21 or 35 at this time. It may be more appropriate to leave Amendment No. 51 until we reach it in the Marshalled List. I understand that that is acceptable practice.
§ [Amendment No. 21 not moved.]
§ Lord McIntosh of Haringey moved Amendment No. 22:
§
Page 2, line 33, leave out from ("Scheme") to end of line 35 and insert ("shall—
(a) not provide for any maximum amount of compensation;").
§ The noble Lord said: This amendment may appear to drive a coach and horses through government spending constraints but it really does not. The overall maximum provided in the tariff for individual awards is £500,000, which I acknowledge straight away is an improvement on the £250,000 in the tariff which was found to be illegal. In moving an amendment which removes that cap on total compensation of £500,000 I am not opening the floodgates of public expenditure. In 1993–94 there were only seven cases exceeding £500,000, the total excess being less than £1.38 million. It does not seem sensible to have this quite arbitrary cap.
§ Perhaps I may give two examples of the way in which larger amounts can be built up. I hope that the Committee will understand that the strictures which the noble Lord, Lord Carlisle, placed on some what he called excessive awards for quadriplegia and paraplegia do not really apply in the cases that will arise under the terms of this amendment. I have an example of a case of paraplegia where the general damages were £90,000. It concerns a man aged 33 at the date of the assault and 39 at the date of the hearing. He was stabbed in the back. He has complete paraplegia with all the difficulties associated with that—frequent episodes of severe pain, recurrent urinary tract infections and 645 pressure sores. He needs permanent live-in care which had been provided by his wife and would continue to be provided by her in the future.
§ The total award of £785,000 was made up as follows: £90,000 for general damages—for pain, suffering and loss of amenity; £45,000 for loss of past earnings; £62,000 for loss of future earnings; £39,000 for future replacement of equipment; £22,000 for equipment already purchased or needed; £72,000 for past care; and £242,000 for future care. This is where the cost really starts to add up.
§ There are various other items for medical expenses. There is the future cost of transport at £39,000; accommodation at £60,000; future household expenditure, £75,000, and so on. It is a total of £784,000. One can very well see how, with the special expensive provisions which are made in the scheme and the tariff, one can get up to that figure and not he unduly generous.
§ A second example concerns a woman aged 19 at the date of the assault. She was attacked and suffered a fractured skull, a fractured cervical spine and fractured ribs. She also suffered severe head injuries. The severe head injuries caused severe memory impairment and concentration and organisational difficulties; in effect, severe brain damage. She had an interim award of £100,000, but she was awarded in the end £65,000 damages for injury, £7,500 for past loss of earnings, £60,000 for past care, £84,000 for future loss of earnings, £522,000 for future care (which is a multiplier of 15.5) and court and protection costs of £32,000. That is a total of £800,000. Again, one can see how that kind of amount builds up without any individual item being excessively generous. For the sake of what is probably less than £2 million in total, can the Government not give up this arbitrary £500,000 maximum? I beg to move.
§ Lord Rodgers of Quarry BankPerhaps I may express support for the motive behind the amendment moved by the noble Lord, Lord McIntosh, and do so in the light of what was said by the noble Lord, Lord Carlisle of Bucklow. I fully understand what he said about comparing the tariff with a normal figure for damages under industrial injuries. It was a very fair point and one which the Minister indicated, as I understand it, will be looked at.
I approach these matters very much as a layman. Although the Minister has said today, as on previous occasions, that this is a very generous scheme—and no doubt it is on a comparable basis with schemes available elsewhere—when I look at some of the tariffs I do not believe that I would feel that they were very generous if they applied to me. If noble Lords themselves were subject to criminal injury, I do not believe that they would feel that the compensation was adequate. It may he that I am very fastidious and unworldly in this respect, but the idea that one gets compensation to the extent of £40,000 for the loss of a tongue is absolutely extraordinary. For the loss of both legs the sum is £100,000. Would we be prepared to see ourselves lose a tongue for £40,000 or two legs for £100,000?
646 As I say, the tariff may be generous taken as a whole—but £100,000 for the loss of both eyes? Would any of us feel that that was adequate compensation for the loss of a facility of that kind? We have to say that because the courts approach these things in a very hardheaded way. They have precedent and they have to take that view. I say this in view of what the noble Lord, Lord Carlisle, has said, in case his remarks are thought to be representative of the views of the Committee. A number of the individual items are totally inadequate as compensation for the degree of injury which is described.
At the bottom end of the scale some of the figures are perfectly acceptable. Indeed, I am surprised that compensation is payable at all for some very minor injuries. But at the top of the scale one can see what it would mean to the life of a man or woman to be injured in this way. This comes back to a matter we discussed about being 15, 16 or 17 years of age, at the beginning of one's life. I do not believe that the message should go out that these levels of compensation are seen to be generous.
The noble Lord, Lord McIntosh, is now of course exercising excessive prudence in relation to public expenditure. He says that he does not want to open the floodgates. He is saying that now in case he is in the position of the noble Baroness within a relatively short time. It is not for me to judge whether that will be so. But I do not want it to go on record that, expensive though this scheme might be seen to be by some criteria, the compensation offered to those who suffer injuries will ever be considered to be true compensation for what has happened to them.
I ask this question of the Minister. Although it may sound very nave, it is genuine. In the light of that, what really is the purpose of compensation? It may be an elementary question for those who deal with these matters from day to day in courts and tribunals. But what is £50,000 or £100,000 meant to do? If the Minister, myself or any other Member of this Committee lost our eyes, what would £100,000 mean to us? I shall be interested to hear what the Minister has to say.
§ Baroness BlatchThe noble Lord, Lord McIntosh, continues with the self-indulgence of inviting the Committee to pass amendments to spend more money, and then says that it should not be taken too seriously because he does not wish to talk about money at the moment. This is another amendment which is very open-ended. The noble Lord has said that he believes that at the end of the day it would not be very expensive. But one has to add this to the other amendment.
The noble Lord, Lord Rodgers of Quarry Bank, was interesting in what he had to say. It is never possible properly to compensate somebody for losing their legs or their tongue or ending up a quadriplegic. The scheme is not attempting even to try fully to compensate someone: I do not believe it can be done. It is attempting to represent society's concern for blameless victims of crime. Society has seen fit, through its taxes and other money, to put in place a compensation scheme which 647 will be approved by Parliament in order to make some amends for discomfort, medical needs and possible incapacity to work.
I remind the House yet again that the original common law scheme contained within it an element for loss of earnings and care. That has remained in our calculations. It has not been stripped away. In addition to that and quite separate from it, I refer to the example of the noble Lord, Lord Rodgers of Quarry Bank, of the person who loses a tongue or who loses his legs. The noble Lord mentioned only the tariff amount. That amount is only one part of what a person would receive. In addition to that £100,000 or £40,000, there would be compensation for medical care, loss of earnings, loss of pension and so forth.
As the Committee knows, our intention is that the scheme should set an overall cap for awards. Already my noble friends have said that there is the generous figure of £500,000. That is double the amount set up under the earlier tariff scheme which had to be withdrawn. It is pertinent to the examples given by the noble Lord, Lord McIntosh of Haringey, to take into account the fact that for the first time it is possible to purchase an annuity with that £500,000. The income stream generated from that annuity would be entirely tax free for life for the victim of criminal injury.
If we were talking about legal liability on the part of the state to pay damages for acts which its employees have committed, there could be no such limit. But that is not the case here. As I said earlier, the scheme pays compensation as an expression of society's concern for and sympathy with the victim. It is not reasonable to expect a state-funded scheme to make good each and every loss a victim may have suffered. That would place an undue burden on the taxpayer, on whom the cost of the scheme ultimately falls.
I ask the Committee to agree that £500,000 is a very large sum of money. It has already been queried. Fewer than 10 of the board's awards in 1993–94 under the present scheme exceeded that amount. But it is no argument to say that, if that is the case, the potential cost of removing the cap cannot be very great. We need the certainty to control costs that the facility of setting an upper ceiling on awards will give. We cannot have an open-ended system under which costs in any one year cannot be predicted or controlled. I remind the Committee again that with a new facility to make payment by structured settlements—that is the purchase of tax-free annuities which this Bill introduces—the value of high awards to claimants during their lifetime will be considerably increased. For all those reasons I hope that the amendment will not be pressed.
§ 9 p.m.
§ Lord McIntosh of HaringeyThe Minister claims that I am simply asserting that there will not be significant extra expenditure if the amendment is agreed to. That is not the case. I have given exact figures for 1993–94, which is the most recent year for which I have figures. It is clear that the number of such cases in that year would have been seven and that the total amount 648 of money involved would have been £1.38 million. In terms of the total cost of the scheme, that is not a significant amount by anybody's standards.
Indeed, it is not as if removing the cap is removing the basis upon which the compensation is paid. I am not claiming for a moment that there should not be any restraint on what should be awarded for loss of earnings or future loss of earnings, for care or for future care. I am saying—if the Minister is listening—that without making any change in the tariff, without in any way relaxing the financial constraints which exist both in the tariff itself and in the calculation of special expenses, it would be just, equitable, not expensive and common sense to remove an arbitrary limit of £500,000. I acknowledge that £500,000 is a larger limit than in the interim illegal scheme, but it is also the case that there was no limit before and that there was no exploitation of the lack of a limit under the previous scheme.
It is not the case that very large numbers of people will have their awards totalled. Such awards will be made only under severe scrutiny by claims officers, systems managers and adjudicators. There will not be a free-for-all of any kind. I find the Minister's attitude to this modest reform quite inexplicable. Although I beg leave to withdraw the amendment, I cannot promise that I shall not return to it at a later stage.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 23 not moved.]
§ Clause 2, as amended, agreed to.
§ [Amendment No. 24 not moved.]
§
Lord Archer of Sandwell moved Amendment No. 25:
After clause 2, insert the following new clause—
§ COMPENSATION FOR LOSS OF EARNINGS
§ (". Where the applicant has lost earnings or earning capacity for less than 28 weeks as a direct consequence of the injury, an additional award of compensation in respect of loss of earnings will be made in a sum equivalent to the difference between the applicant's actual income and the higher rate of statutory sick pay applicable to that period.").
§ The noble and learned Lord said: We return to dealing, by way of an amendment to the Bill, with a quarrel that we have with the scheme. Paragraph 22 of the draft scheme provides for compensation for loss of earnings after earnings have been interrupted for 28 weeks. That provision was introduced by the Government on second thoughts and will indeed benefit the more seriously injured. I say at once that we welcome it.
§ However, those who suffer loss of earnings for less than 28 weeks may suffer real hardship. I assume that the period of 28 weeks was chosen because up to that period there is statutory sick pay. However, that is hardly a fortune. It may amount to substantially less than the victim's normal earnings. If the victim is committed to, say, periodical mortgage repayments or similar outgoings, it may lead to a financial crisis at a time when the victim is least able to cope with such financial and family problems.
§ Some employers have a contractual sick pay scheme to make up the shortfall but, unhappily, that is far from true of all employers. There is, if anything, some 649 correlation between being in the kind of employment which subjects one to high risk and not having a contractual sick pay scheme. Self-employed people do not receive statutory sick pay at all, yet a taxi driver is at greater risk of criminal injury than most of us. That is equally true of sub-postmasters and sub-postmistresses.
§ From the figures which I have been privileged to see by courtesy of the Library in another place, it appears that by the 28-week rule as many as 12 million people could be excluded from the scheme who in consequence may suffer real hardship. There are some 3 million self-employed people; some 3 million who at present are below the lower earnings limit; 1 million who are on short-term or temporary contracts and so do not qualify; some 2 million people have employers who do not have such a sick pay scheme; and 3 million people have not worked for an employer for long enough to qualify. Therefore, it does not follow that because many people will qualify for sick pay up to 28 weeks, those who are disabled for less than 28 weeks have no problem.
§ I cannot believe that the Government intended that situation to arise. The 28-week rule must have looked a fairly simple and just way of effecting a division. I am sure that, on reflection, the noble Baroness will accept that it is not. I beg to move.
§ Lord Carlisle of BucklowPerhaps I may reply briefly to what the noble and learned Lord, Lord Archer, has just said. Obviously anyone who loses a job as a result of injury or who is unable to work for a short time suffers a blow. I accept that that must be so, but one must to a degree be pragmatical in approaching this matter. The board is now facing something like 70,000 cases a year. At the moment the scheme requires us to look at any potential loss of earnings for however short a period of time. A great deal of the time of the board's staff is taken up in inquiring as to the loss of wages claimed by someone who may not have been off work for three or four weeks but for, say, two or three days. Then you have to write to the DSS to inquire whether they received benefits, deduct the benefits from the wages to discover whether they have an additional claim on top of the general damages or, in many cases, whether there is an excess of what they received in benefits as against their losses to be deducted from the sum for general damages.
Based on my experience over the past five years with the Criminal Injuries Compensation Board, I am bound to say that the amount of time spent finding out the answer to that question often far outweighs the result. I have put that badly, but a great deal of time is taken up finding very small sums owed one way or another. Although I believe that it is in some ways harsh, it is, regrettably, pragmatically correct for the Government to say that the first few weeks of earnings should not count. Whether they have the right point with 28 weeks, I do not know. The submission we put to the Home Secretary when he was putting forward his revised tariff was that we thought that it was reasonable up to three months not to account for the loss of earnings. The Government are right to say that we cannot have such a finely tuned scheme any longer and account for every day's earnings lost. With a degree of regret, because I believe that the 650 arguments of principle are on the side of the noble and learned Lord, Lord Archer, the Government are right to say that the amount of work involved is not justified by the outcome. The awards at the lower end, as the noble Lord, Lord Rodgers, said, are on the generous side compared to those we pay in general damages and have attempted to take into account that fact. So I hope that the Government will resist the amendment.
§ Baroness BlatchI am grateful to my noble friend because he has put the argument rather more eloquently than I could have done. That is precisely some of the thinking behind having to choose a period. We believe that 28 weeks is about right. It is the period for which statutory sick pay is paid, and many employers, as we know, pay full sick pay for that long anyway. Those ineligible for statutory sick pay are usually able to claim incapacity benefit or some other state benefit according to their need.
There is just one other point to add to what my noble friend said. Under the proposed scheme, payment for loss of earnings or earning capacity will be capped as at present at one-and-a-half times the national average wage. The amendment makes no allowance for such capping, which could mean that a higher wage earner off work for fewer than 28 weeks could receive considerably more for loss of earnings from the scheme than a lower paid worker who was off for more than 28 weeks. I am sure that that is not the intention of the amendment, and it is not the intention of the scheme. It would greatly increase the cost of the scheme to the taxpayer and would, in effect, mean a return to something close to the present system. As we have already heard from my noble friend, this would make the system work rather better.
§ Lord Archer of SandwellI take the point made by the noble Lord, Lord Carlisle of Bucklow, and by the Minister. Of course I understand that the administration of effecting justice can sometimes be itself a substantial drain on the resources which could otherwise have been devoted to the doing of justice. Sometimes, I believe, we would be financially better off if we allowed every claim rather than devote the resources which we do to adjudicating on claims. However, there are obvious arguments against that.
Clearly in all these cases one has to balance the amount in issue against the cost. I could take that point more readily if the cut-off point were, say, four weeks or even six weeks. Someone deprived of his earnings and reduced to SSP for six weeks might suffer real hardship, but it would probably, in most cases, be hardship with which he could cope. If we are talking about 28 weeks, the hardship is mounting up week after week after week. The mortgage has to be paid and then there comes a time when the children need new clothes, and so on. By the end of the 28 weeks, the family, unless it is particularly robust, could be in a state of chaos. I believe that 28 weeks is too long to sustain that argument.
I see too the point made by the Minister, that there could be some anomalies, and we should be happy to see how they could be eliminated. We remain unhappy at this. There would be, not everyone, perhaps not 651 massive numbers of people, but a substantial number of people who would suffer real hardship because of this rule. I should like to reflect upon what has been said in the course of the debate to see whether there may be other ways of addressing the problem. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.15 p.m.
§
Lord McIntosh of Haringey moved Amendment No. 26:
After clause 2, insert the following new clause—
§ EXCLUSION FROM TARIFF OF MULTIPLE INJURIES
§ (". The Scheme shall provide for the calculation of a compensation award to an applicant who has suffered two or more injuries each of which would otherwise attract a Tariff based award at level 7 or above to be made upon the same principles as an award for pain, suffering and loss of amenity at common law.").
§ The noble Lord said: Amendment No. 26 deals with multiple injuries and refers to the changes that have taken place between the original common law scheme, the illegal scheme that was introduced and has now been replaced, and the proposed new scheme. Unfortunately, this is one of the examples of defects in the illegal scheme being continued in the proposed new scheme. We are not talking about multiple minor injuries. There is a note to the tariff which states the way in which minor injuries such as grazing, bruising, black eyes or bloody noses shall be dealt with. The amendment is not concerned with those; it is concerned only with injuries at tariff level 7, which is £3,000 or above.
§ The first tariff scheme provided that there should be a 100 per cent. payment for the first injury, a 10 per cent. payment for the second, a 5 per cent. payment for the third and nothing for any subsequent injury. I wish to give two examples in order to illustrate how that results in total awards which are not only very much less than the original common law scheme but so low as to be unreasonable and even unjust.
§ Perhaps I may give the example, first, of a man who was attacked and landed on his head on the pavement. He received a right-sided haematoma causing compression of the brain with evidence of confusion of the brain. As a result of that he suffered epileptic fits for a number of years in a continuing period after the injury. He had right-sided headaches and tinnitus and a tendency to become depressed and irritable. Indeed, he was admitted to a psychiatric hospital on four or five occasions after the incident. His speech incapacity for language was significantly impaired. He was virtually unemployable, his personal life was destroyed and his marriage broke down after the incident. Under the common law scheme his award of general damages—and I shall stick to those—was £50,000. Under the tariff scheme he would have received £20,000 for the psychiatric injury, only 10 per cent. of £12,500 for the epilepsy and only 5 per cent. of £7,500 for tinnitus. That is a total award of £22,000 as compared with the £50,000 that he would otherwise have received.
The second example is of a woman who was aged 23 at the time of the incident. A hand-held distress flare hit her in the left eye and exploded. She lost the sight of 652 her left eye, she has a traumatic cataract and severe retinal damage and is left with double vision in her left eye. She is unable to wear an occlusive contact lens, she has a shrunken eye, a shattered eyebrow, a fixed dilated pupil and divergent squint and she cannot close her eye because of the tethering of the skin. She has had plastic surgery but that has not worked. She was pregnant at the time but she has since been diagnosed as depressed. She was a trained hairdresser but she could not continue in that employment. Under the common law scheme she was awarded £33,500. Under the tariff scheme she would have received £20,000 for loss of sight, only 10 per cent. of £7,500 for scarring and only 5 per cent. of £7,500 for psychiatric injury. Therefore, she would have received £21,000.
§ There are literally hundreds of examples such as those in which the arbitrary figure of 100 per cent. for the first injury, 10 per cent. for the second injury, 5 per cent. for the third injury and nothing thereafter amount to injustice. That is not a challenge to the tariff; the tariff is not being attacked in this amendment. However, what is being attacked is the over-simplistic way in which the tariff deals with multiple injuries. Again, this is not an open door to huge numbers of claims. There were only 641 applications in respect of multiple injuries in the year of the operation of the 1994 scheme and it is difficult to imagine that there would be a significantly greater number in the future. I cannot calculate what the expenditure would be but on that number of applications it clearly would be very small indeed. However, there would be a significant improvement in the justice and acceptability of this scheme if those arbitrary limits were removed. I beg to move.
§ Lord Carlisle of BucklowOn the last occasion I rose to support the Minister on an amendment moved by the noble and learned Lord, Lord Archer. On this occasion, I make a brief intervention in support of the principle of the amendment moved by the noble Lord, Lord McIntosh.
The provision for serious injuries as working in practice is frankly unfair. I agree with the noble Lord entirely in that approach. As a result of the decision of the judiciary of your Lordships' House which held that the tariff was unlawful, we had to look again at all those awards which had been decided under the then tariff. I believe that the noble Lord, Lord Macaulay, will agree with me that one of the most common comments of ourselves and our colleagues has been that that was shown to be very unfair when one is dealing with someone who has multiple injuries.
Of course, if you have a broken nose and a scar on the nose, it might be said that that is one injury which can be approached in that way. If you have a broken jaw and you have lost a tooth, again those are related injuries. But let us say that you have an accident which causes you to be blind in one eye. That does not mean that there is no effect if you have also broken your leg or badly broken your ankle. When you have injuries which are totally distinct, it seemed to those of us on the board who looked at those cases to be unfair to limit the award for the second injury to 10 per cent. As the noble Lord, Lord McIntosh, demonstrated in the 653 examples he gave, a figure is reached which does not compare with the degree of injury caused to the individual.
Between now and Report I ask the Minister to look again at the tariff proposal in relation to multiple injuries. She may not go along with the idea that they should be removed entirely from the tariff but I believe that the percentages are unfair and deserve to be looked at again.
While I am on my feet, perhaps I may say to my noble and learned friend Lord Rodger that I was not suggesting necessarily that £100,000 could ever compensate a person for the loss of their eyes or for becoming paraplegic. The point that I was trying to make was that through the courts, society has accepted that there is a generally agreed figure for the pain and suffering element. The Government should not move too widely from that figure without at least reflecting on the consequences which that might have on the settlement of cases in the courts. I was not wishing to he hard on the paraplegic. I merely said that if other expenses were allowed on top, we should look again at the figure given for general damages.
§ Baroness BlatchI am afraid that this amendment—like a number of others we shall consider later—effectively rules itself out of court straightaway by talking in terms of assessment on the basis of common law damages. We have made it clear—indeed, it is a central tenet of our tariff approach—that we want to break right away from the present system based on individual assessment. We are looking for a system which is simple, quick and transparent, and one under which costs are more predictable and controllable. Our enhanced tariff scheme provides just such a system. Against that rationale, there can really be no question of reverting to the common law method of assessment for any category of case.
Before addressing the point at issue on the amendment, perhaps the Committee will bear with me while I say a few words about the general principle involved. It has been argued by many—and it will no doubt continue to be argued—that certain categories of case are not susceptible to a tariff-based approach but require assessment on an individual basis. We do not accept that view. I remind the Committee that the tariff was constructed extremely carefully on the basis of 20,000 awards made by the board. That extensive sampling exercise demonstrated clearly that it was quite feasible to group injuries into bands of comparable severity—including complex or sensitive cases—and that it was possible to assign a typical monetary value to that grouping (the median value). The exercise enabled us to devise a range of awards for all cases, including the difficult ones, depending on their relative seriousness.
As regards the figures given by the noble Lord, Lord McIntosh, he seemed to me to be comparing a common law award with a tariff and ignoring any loss of earnings payments or any after-care payments. Therefore, it was not an absolutely true comparison with what could be received by an applicant at the end of the day. I see that the noble Lord wishes to respond. I give way.
§ Lord McIntosh of HaringeyI am grateful to the Minister for giving way. I was comparing the damage element of the common law with the tariff; in other words, I was excluding extra payments, loss of earnings and so on from both sides of the equation. So I was comparing like with like.
§ Baroness BlatchIn that case, I entirely withdraw the assumption that I drew.
Great care has been taken in the tariff to provide injury descriptions which can be readily applied. We therefore see no justification for departing from the straightforward tariff approach for particular classes of injury or type of case. That tariff approach is open, readily understood and provides certainty and consistency in the level of awards.
Victims will know where they stand. We think that that is most important. A return to subjective assessment—for that is what the amendment and a number of those which follow amount to—of the pain and suffering attributable to the injury would mean that cases would take longer to deal with, that there may be more appeals about quantum and that the costs of the scheme would be far less certain. What the scheme provides is a tariff payment plus an objective assessment of financial loss attributable to the injury. That is intended to deliver a fair, generous and consistent outcome across the whole range of cases.
As I have said before, and I shall no doubt have to say again, we are no longer aiming to provide finely-judged compensation on the same basis as hitherto. That is no longer appropriate, or affordable, for a scheme funded by the taxpayer which has to deal with over 70,000 claims a year. Many victims and their families think that their case is special and deserving of particular consideration. But we believe that our enhanced tariff scheme will provide for all types of case, without reintroducing delays.
Having made those more general remarks, I should now like to say something about the point at issue here. The draft scheme presently provides for serious multiple injuries to be assessed according to the formula of 100 per cent. for the first injury, 10 per cent. of the award for the second and—where appropriate—5 per cent. for the third.
The sampling exercise to which I referred a moment or two ago showed that in cases of multiple injury most of the award was made for the most serious injury, with very little added on for additional, lesser injuries. That approach is also recommended in the Judicial Studies Board guide to damages for personal injury. The tariff adopts the same approach, and the formula that we have adopted for assessing multiple injuries closely reflects board practice. We think that that is the most sensible way of dealing with such injuries, and can see no defensible basis for going down any other road.
In some circumstances I can see that our formula might be considered to leave the victim under compensated to some degree; for example, where he had lost both an arm and a leg and received only 10 per cent. of the award for the loss of the arm. But such cases are extremely rare. As I have sought to make clear at a number of points during consideration of the Bill, the 655 scheme is not aiming to make good each and every loss an individual victim may have suffered. As there is no "right" figure for compensation, we are aiming instead to make a generous payment to most victims as quickly as we possibly can. We believe that the tariff scheme achieves just that aim. If the Committee accepts that point of view on the treatment of multiple injuries, then the consequential amendments to Clause 10 must also fall as the scheme will have set out how such injuries will be dealt with.
My noble friend posed the question of whether or not I would consider, think about, or continue to read what has been said during the course of the debate between now and the next stage of the Bill's proceedings. I can give my noble friend that assurance unequivocally. Indeed, we shall go on thinking about all such matters until the Bill passes its final stages in this Chamber.
§ Lord McIntosh of HaringeyThe Minister's response has two parts. First, because we are discussing the first amendment which refers to a reversal to common law procedures, she makes the defence that she has made previously of the statistical procedure on which the tariff is based. As a statistician I am not opposed to the general principle on which the analysis was made. It was right to take a sample of cases—a sample of 20,000 is a large number of cases—and I was right to take the median rather than any other form of mean. However, I would still argue that the analysis of this proper sampling procedure has been inadequate.
If the analysis of each of the items in the tariff had taken account of the age of the victim, the sex of the victim, his or her occupation and the dominance and extent of multiple injuries, there are various ways in which it could have been made more sophisticated. We would have then obtained a more complex tariff—there is nothing wrong in itself with a complex tariff—and a tariff which more closely approached reality. At the moment we have a tariff which, through its ignorance and rejection of further discrimination by age, sex, occupation and dominance, is extremely crude. The Minister defends this, as she has throughout the Committee proceedings, on the grounds of transparency and speed. I do not reject that analysis; I agree that speed and transparency are important. However, a complex tariff can also be made transparent and can also be made accessible to the layman and it can be applied more speedily. It is better than a crude tariff. The same is true as regards multiple injuries.
Secondly, I come to the specific point which the Minister makes. She says that there is a relatively small number of cases of multiple injuries. Indeed I said that in my opening speech. There were only 641 in the first year of the tariff scheme. The Minister says that most of the people who receive these injuries receive a large amount for the first injury and a smaller amount for the second injury. However, that is an even stronger reason why the amounts that exist for the second and third injuries should not be reduced to 10 per cent. and 5 per cent. respectively, because it confirms that the cost of a more equitable recognition of the pain and suffering 656 caused by multiple injuries would not be very great. However, such a provision would increase the credibility of the tariff scheme without breaching it.
I would not have wished to put down an amendment which reverted to common law damages for multiple injuries if I could have avoided it. If I could think of a way of providing for multiple injuries within the tariff which was fairer than the 10 and 5 per cent. system, I would still prefer to opt for that. However, I do not have the resources to do that; the Minister and the Home Office do. They must acknowledge, as they have been urged to do by the noble Lord, Lord Carlisle, that the case for providing better treatment for those who have suffered multiple injuries is a sound one. Surely something could be done, if not by giving 100 per cent. awards for all injuries, then at least by providing something better than 10 per cent. or 5 per cent. In that way we can avoid what all of us want to avoid, which is a return to the common law scheme. It is because our amendment represents a return to the common law scheme and because I want to pursue the matter constructively with the Minister before we reach a later stage that I shall withdraw the amendment. I beg leave to withdraw the amendment.
§ 9.30 p.m.
§ Baroness SeearBefore the noble Lord does that, I should say that I wish to support his suggestion. Having obtained a sample of 20,000, which is a good start for an analysis, it should be possible at this stage to do a special analysis of the particular group of people who are affected in this way, as the noble Lord, Lord McIntosh, has suggested. The noble Lord probably has all the data and such an analysis could be carried out. It would be illuminating to see such an analysis. I do not know whether the noble Lord, Lord McIntosh, agrees with me but I believe that from a technical point of view it could be done and it would be useful.
§ Lord McIntosh of HaringeyIt depends entirely on whether adequate records were kept of age, sex, multiple injuries and so on. Technically, the noble Baroness, who is a fellow social scientist, is quite right. Perhaps that is something that the Minister may like to pursue. One can make much better use of data of that kind if one has collected them correctly in the first instance. I am encouraged by the sampling exercise. I should like to feel that it can be used to greater effect than it has been, and I very much agree with what the noble Baroness said. Perhaps that is also a matter that we could consider "off line". I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 27 not moved.]
§
Lord Archer of Sandwell moved Amendment No. 28:
After clause 2, insert the following new clause—
§ EXCLUSION FROM TARIFF OF CASE OF CHILD SEXUAL ABUSE
§ (". The Scheme shall provide for the calculation of a compensation award to a claimant who was below the age of 18 years on the date of the injury and who claims compensation for the consequences of sexual assault or other sexual abuse to be made upon the same principles as an award for pain, suffering and loss of amenity at common law.").
657§ The noble and learned Lord said: The Committee may find it convenient to discuss Amendment No. 29 with Amendment No. 28.
§ Once again we are addressing the inflexibility of the tariff scheme. In the course of the last debate the noble Baroness said that it had been argued that some categories of case are not susceptible to a tariff approach. It has indeed been so argued, and I argue that now, because it is true.
§ There are some situations which are notoriously difficult to assess in terms of appropriate compensation, whether one is arguing a personal injury case in the courts or one is a member of the Criminal Injuries Compensation Board. There are some cases where the effects of what is done vary enormously by reason of a whole range of factors of which no account is taken in the tariff. In fairness, I doubt whether account could easily be taken of such factors.
§ The two categories we raise in this debate were mentioned earlier by the noble Lord, Lord Carlisle, when he introduced Amendment No. 6. His suggestion for dealing with the problem was a series of bands instead of a single inflexible figure against each entry in the tariff. The noble Lord was right when he said that our proposals—he was probably referring to those in this amendment—go further. We believe that there are some kinds of injury which do not fit into a tariff scheme at all, for the reasons which the noble Lord gave. For example, the effects of a sexual assault may vary with a whole range of factors: the degree of violence or intimidation; the place where the offence took place, whether it was a lonely country lane at night or a home which the offender shared with the victim; the degree of relationship between the two sides.
§ The scheme seeks to deal with those difficulties by forcing them into a series of boxes. At an earlier stage the noble Lord, Lord Carlisle, gave some examples. In the case of sexual abuse of children, repeated non-consensual vaginal and/or anal intercourse over a period of up to three years compensation would be £10,000; in a similar situation lasting longer than three years it would be £17,500. There is not a gradation but a jump. In the case of sexual assaults other than on children, compensation for non-consensual vaginal or anal intercourse the figure would be £7,500; and for the same offence involving two or more attackers there is a jump to £10,000. If there are other serious bodily injuries there is a further jump to £17,500.
§ The problem is that, if one attempts to produce a tariff by reference to the average of awards that have been made over a period of time, that average will fall very far short of what would be an appropriate level of compensation for the worst cases. My noble friend Lord McIntosh gave some examples in relation to the injuries that he discussed in the course of the previous debate. Perhaps I may give three examples.
§ The first is the case of a female aged three and a half who was subjected to sexual abuse over a period of time. She experienced disruption of sleep, loss of appetite, a reversion to bedwetting, was reluctant to associate with male adults, and refused to co-operate in a medical examination to assess whether physical damage had taken place. A psychiatric assessment 658 concluded that family and social services support might alleviate acute problems but there was uncertainty as to whether it would be necessary to intervene therapeutically at different stages of development as the child grew up. Here we compare like with like. The general award of damages was £7,500. So far as we can judge, the tariff award would have been £2,000.
§ Perhaps I may take another example. A boy and girl aged respectively 13 and 12 years were abused by their father over a long period. Despite injunctions, it was believed that he wanted to continue to see the children. It was thought that the harassment and terror were an important contribution to the children's failure to overcome any of their major symptoms caused by the abuse; they had aggravated the abuse. There could not be provision for that situation in the tariff without making the tariff impossibly complicated. General damages in that case were £15,000 for each child. Under the tariff they would have received £6,000.
§ The effects can vary from permanent psychological damage which may ruin a victim's life to the shock and distress which a particularly robust individual may put behind him or her after a few months.
§ Perhaps I may turn to the other example: sexual assaults on other than children. Again I hope that the noble Baroness will accept that some of those damages cannot be forced into boxes. I give one example of a female aged 27 at the date of the assault. Already she had developed epilepsy. She had educational learning difficulties and suffered from a pre-existing schizo-affective disorder. She was then living reasonably happily in sheltered accommodation. Following the incident, her mental state deteriorated. Her schizophrenic symptoms flared up. She developed severe depression. The evidence of the consultant was that the change in the pattern of her illness was significant and appeared likely to extend for an indefinite period into the future. Her general damages were £10,000. Under the tariff scheme she would have received £3,000.
§ One could go on. I hope, however, that the noble Baroness will take on board that there are some kinds of injury where the effects vary enormously with a range of factors which have not been included in the scheme and could not reasonably be expected to be included. We do not seek to abolish the scheme. We simply say that every rule has some sensible exceptions. I hope that the Government will find it possible to think again on this issue. I beg to move.
§ Lord Carlisle of BucklowI support what the noble and learned Lord, Lord Archer, said. When I moved Amendment No. 6, I stated to the noble Lord, Lord McIntosh, that I preferred my approach to his because I had attempted to meet the Government's intention to obtain a tariff and to find some discretion within the tariff. However, I have to come clean and say that that apart my preference would be for the total exclusion of sexual offences from the tariff for all the reasons that have been stated. The board has always taken the view that sexual assaults on children are not properly or suitably assessed under a tariff scheme. Every word that one heard from the Minister in answer to the last debate on multiple injuries, and from what I suspect she will 659 say on this issue, proves the case that we should be discussing a hybrid scheme with something like 85 per cent. of cases being dealt with under a tariff. The 15 per cent. which are extremely complicated or serious, or involve particularly sensitive aspects of matters such as child abuse, should have been put out to individual assessment. In that way a great deal more money would have been saved than the Government will save at the end of the day.
§ 9.45 p.m.
§ Lord Macaulay of BragarI endorse what the noble Lord said. Practice has shown that the great majority of children who have been abused, whether boys or girls, are in local authority care. No matter what award a single board member makes to the child, the local authority has to watch its back, so to speak. It has to look after the interest of the child. Inevitably it appeals against the award. It is a very, very difficult, almost impossible, situation to ask members of the board to deal with. I adopt the idea of the noble Lord, Lord Carlisle, that there should perhaps be a special sexual abuse unit, government-funded or otherwise, to deal with these matters, with specialists dealing with local authorities.
A lot of time is wasted. One can readily understand why people in the social services and the local authorities appeal against most awards. It is because they could no doubt be sued in a few years' time by the victim, asking why they did not appeal against a particular award of, say, two-and-a-half thousand pounds. I know somebody who received £15,000, as the noble and learned Lord, Lord Archer, just demonstrated. Therefore, a multiplicity of sexual abuse cases are pursued through the board and take up a lot of time. No doubt other areas of life might be excluded from this scheme, but that is a matter for debate on another day or night as the case may be. Certainly, sexual abuse cases represent one of the most difficult areas for adjudication.
§ Baroness BlatchTo take the special cases contained within both this present amendment and those that are to come, we are not talking about minor variations from the tariff scheme. We are talking about very substantial numbers of cases if taken altogether. The same principle applies. A very real attempt was made to look at 20,000 awards right across the board, including the types of cases to which we are referring, and including some that are very complex and difficult. The aim was to arrive at a semi-scientific judgment on the basis of that sample, which, as the noble Baroness, Lady Seear, said, is a fairly substantial number of cases. We shall continue to consider whether that can be refined. The view has been taken that there should be a tariff scheme. All the arguments about moving away from a tariff scheme continue to apply.
It is very interesting that, while my noble friend hinted that the Government could save money if they took on board some of these amendments, every single example used so far has doubled, trebled or quadrupled the amount of award. All the examples used stated that the general award would be X, the award from the tariff would be Y. In each case the tariff award was lower 660 than would be the general award. That was used as an illustrative case, both by the noble and learned Lord, Lord Archer, and by the noble Lord, Lord McIntosh. We are saying: yes, there is an element of rough justice in this; some will receive more under the scheme, and some will receive less. But the scheme is a real attempt to respond speedily to people who have been the subject of criminal assault. We have also tried to make the scheme readily understood. I keep using the word "transparent". It is very important that people see and understand the nature of the scheme, together with money for aftercare, loss of earnings and loss of pension rights. Frankly, I want to stay with that principle. The numbers of occasions and the numbers of groups cited throughout the day in an appeal to move away from the tariff scheme and towards the common law scheme invalidate the whole essential thrust of the Government's case to produce a tariff scheme.
§ Lord Archer of SandwellThe noble Baroness takes comfort from the fact that the Government looked at 20,000 awards. I have no doubt that they did it very carefully. I accept that the results reflect the average of those awards. The whole thrust of our argument is that there are some kinds of injury where the average simply bears no relationship to the worst cases.
I cannot make it any clearer than I have tried to make it already. When the noble Baroness reflects upon this matter after the benefit of a night's sleep and reads what we have all said perhaps she may at least take in that argument and appreciate that what she has said is not an answer to the argument. It is true that the examples that we have given will increase some of the awards and thus the cost of the scheme, though not, I suspect, as substantially as the noble Baroness appears to think. Perhaps someone may do a little work on this and some figures will be available, as the noble Baroness, Lady Seear, suggested in another context a few minutes ago. If that is the price of doing justice in the worst cases it seems to be a price that is worth paying.
However, this is perhaps not the occasion to press the matter further. I should like to give the noble Baroness an opportunity to do what I have suggested. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 29 not moved.]
§
Lord Archer of Sandwell moved Amendment No. 30:
After clause 2, insert the following new clause—
§ EXCLUSION FROM TARIFF OF MENTAL INJURY
§ (". The Scheme shall provide for the calculation of a compensation award to a claimant in respect of a claim in whole or in part for psychological, psychiatric or other mental injury to be made upon the same principles as an award for pain, suffering and loss of amenity at common law.").
§ The noble and learned Lord said: We have been round this course so often that your Lordships shall not be weaned further by it. Psychological injuries are of a type which we argue cannot fit into the categories of a tariff scheme. Those of us who have had to deal professionally with psychological injuries will know the vast amount of psychiatric and other technical evidence with which the court is confronted. It is impossible to 661 expect a tariff scheme to incorporate all of that. When we looked at the scheme to see what was the tariff figure against shock we found that there was a note but no figure at all. The tariff simply does not cater for shock, as my noble friend Lord McIntosh said earlier in the debate. I assume that the reason is that the Law Commission is looking at the whole field. I hope that at a not too distant date it will make a number of recommendations which can be given effect to when they arise. But, if we are to be confronted with a tariff, that will not make the process any easier. I shall not repeat all the arguments that we have already traversed in the course of the debate. I beg to move the amendment.
§ Baroness BlatchThis is yet another group of people for whom noble Lords opposite believe that the tariff scheme is not appropriate and for whom the common law damages approach is the answer. We can no longer argue that this is just a small example of how a tariff scheme and a common law damage scheme can work alongside each other. Just as the noble and learned Lord cannot add anything to his argument in pressing for yet another special case—we have been dealing with special cases for a long time as part of today's debate—I do not believe I can take the matter much further. I do not agree with the noble and learned Lord. I believe that a real attempt has been made to arrive at a tariff scheme that reflects complexity, the range of injuries and what the board has awarded in a large number of cases. I believe that, if we are to have a tariff scheme, to deal with all these matters in a different way is not acceptable or sustainable. It will introduce unpredictability and instability. We know that at the moment with the common law scheme costs escalate uncontrollably. I have suggested that there will be no caps on the highest award. All these categories will be brought back into the common law scheme, with all the complexity of introducing the administrative arrangements to deal with them, taking each of the categories suggested by the amendments today case by case. I believe that it will 662 wholly invalidate the changes that we are trying to make: predictability, stability, transparency and speed of response to people who are the victims of crime. We wish to have something that is predictable, controllable and affordable to the taxpayer who has to meet the bill.
§ Lord McIntosh of HaringeyIf these matters were indeed in the tariff, the Minister might have a case; but they are not. The tariff says "Shock—see notes" and then gives five different levels of seriousness of shock, such as disabling or temporarily disabling, over different periods of time. When one looks at the notes, there is simply a list of different kinds of shock or mental injury (which is what we are talking about) and there is no attempt at all to produce an effective tariff. There is no predictability in the tariff so far as concerns mental injury. There is no transparency. There is no certainty, and there is no speed. Beyond that, the Government have already acknowledged that the Law Commission is looking into this matter and that anything that they do in the future will have to be changed.
Whatever my noble and learned friend may decide to do about the amendment, it does not come well from the Government to claim that the tariff provides an adequate description of the compensation amounts for mental injury.
§ Lord Archer of SandwellThe noble Baroness does not respond and she is under no obligation to do so. I hoped that she would perhaps reflect on what my noble friend just said. This is not the occasion to seek the view of the Chamber. Perhaps we shall meet again on this same territory. I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at three minutes before ten o'clock.