HL Deb 16 October 1995 vol 566 cc583-600

3.42 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Blotch.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Allenby of Megiddo) in the Chair.]

Clause 1 [The Criminal Injuries Compensation Scheme]:

[Amendment No. 1 not moved.]

Lord Windlesham moved Amendment No. 2:

Page 1, line 11, at end insert— ("( ) The Scheme, and any variation to it, shall be contained in a statutory instrument; and the Scheme, and any variation to it, shall not take effect until a draft of the statutory instrument containing the Scheme or, as the case may be. the variation of the Scheme, has been laid before and approved by resolution of each House of Parliament.").

The noble Lord said: I thank the noble Lord, Lord McIntosh of Haringey, for his co-operation in agreeing that it would be in the interests of the Committee to dispose of the issue of parliamentary control of delegated legislation before moving on to the content of the Bill. The noble Lord's first amendment was a paving amendment for his important amendments of substance, which no doubt he will be explaining.

In moving Amendment No. 2 I wish to speak also to Amendments Nos. 3, 69 and 72. The purpose of this series of amendments is to draw the attention of the Committee to the 14th report of the Delegated Powers Scrutiny Committee. It was published on 21st July and therefore became available only after the Second Reading debate on the Bill. In its report the scrutiny committee stated that the power to establish a scheme for compensation for criminal injuries is a delegated legislative power (paragraph 6); that important elements of the legislation and its administration are included in the scheme and not in the body of the Bill (paragraph 7); and that the Bill is unusual in that it does not make the document embodying the delegated legislation a statutory instrument and that the exercise of the majority of the powers would not be subject to parliamentary control (paragraph 9).

In the form in which the Bill was passed by another place and debated on Second Reading in this Chamber only the tariff proposals were subject to parliamentary control. When, in Standing Committee in another place, an amendment was tabled on this matter the Minister of State declined to go any further. He said that the amendment was impractical as the scheme itself contained so many matters of routine detail and that it would impose an unnecessary burden on Parliament and introduce a cumbersome degree of rigidity. That view might be open to challenge but this is not the place to rehearse it because, spurred on perhaps by the amendments giving effect to the recommendations of the Select Committee tabled by my noble friends and myself and joined by the noble Lord, Lord Rodgers of Quarry Bank, from the Liberal Democrat Benches, the Government have had second thoughts.

The noble Baroness, Lady Blatch, has tabled amendments to Clause 10, which were printed only last Thursday. They concede parliamentary control over both the scheme itself, contained in Amendment No. 61, and any alterations in future to the provisions within the scheme, contained in Amendment No. 66. The decision is greatly to be welcomed. Perhaps the noble Baroness will confirm that, as I read her amendments, the affirmative resolution procedure applies to the introduction of the scheme and the negative resolution procedure applies to any subsequent amendments to the scheme. That seems entirely appropriate because there may well be a number of detailed amendments which are not suitable for the affirmative resolution procedure. If the noble Baroness can confirm those points, the main proposals of the scrutiny committee are met.

The remaining points in the report of the committee can be dealt with briefly. Given the significance of the delegated powers, the committee recommended that the Secretary of State should undertake a process of consultation before formally laying proposals before Parliament in draft. That has been done. During the Recess copies of the draft Criminal Injuries (Tariff Based) Compensation Scheme were circulated. A number of Peers in the Chamber today will have received the draft, as did Members of another place who took part in the debates there. The draft was also sent to a list of interested parties, including Victim Support of which I have the honour to be president. In the case of Victim Support, the opportunity was taken to express views to the Home Office, and no doubt others responded as well. There has therefore been consultation as recommended by the scrutiny committee. I hope that the noble Baroness is able to confirm that Parliament will be notified in some way of any changes made to the scheme as a result of those representations. The process of consultation may not yet be complete, but when it is I believe it is right that Parliament should ask to be kept informed.

The final point raised by the scrutiny committee dealt with transitional provisions. In paragraph 5 of the 14th report the Minister was invited—I quote the language of the report—to give an undertaking to keep the transitional period to the minimum. As she has been so willing to initiate action or proposals to meet the other matters to which the attention of the Committee has been drawn, I hope she will have no difficulty with this one either. I beg to move.

Lord Campbell of Croy

I rise to speak briefly as a member of the Delegated Powers Scrutiny Committee, to which my noble friend referred. Its 14th report on the Bill was published only on 21st July, the day we went into Recess.

I have been a member of that committee since it was created two or three years ago and on the occasions on which the committee has drawn attention to matters for the consideration of this Chamber the Government have almost always acknowledged the points and then taken action, proposed amendments or made changes. That has been gratifying. The action taken, to which my noble friend referred, is also encouraging because it is clear that during the Recess my noble friend and other Ministers have been looking at the points raised by the committee. Like my noble friend Lord Windlesham, I shall be interested to hear how far the amendments go in meeting the points raised in the 14th report.

Lord Renton

In recent years there has been a growth of ministerial documents which are non-legislative but which purport to have legislative effect; for example, codes of practice, guidance offered under statute, departmental directives and, as in this case, schemes. Unless we are very careful, Parliament has no control over those ministerial documents.

Of course, if those documents are merely administrative or explanatory of legislation which has been approved by Parliament, that is all well and good. But if they purport to have a legislative effect of which Parliament has not approved, then we must be extremely vigilant. I congratulate my noble friend Lord Windlesham on his vigilance.

Lord McIntosh of Haringey

The Committee will be pleased to follow the noble Lord, Lord Windlesham, on his introduction of these important matters and to acknowledge, as he does, the extent to which the Government have taken heed of the recommendations of the Delegated Powers Scrutiny Committee, which are extremely welcome.

As the noble Lord said in his opening speech, the issue of affirmative resolution appears from the later amendments to Clause 10 to have been covered very thoroughly. It is also the case that consultation has taken place. Indeed, the Minister was good enough to see me towards the end of last month and I know that the Minister and her colleagues have been accessible to quite a wide range of organisations concerned with the principle and details of the Criminal Injuries Compensation Scheme.

I am not sure that the amendments in the name of the noble Lord, Lord Windlesham, which deal with the commencement and transitional provisions are not rather severe. They would require that the new scheme should come into force within a month of Royal Assent. That may be rather tough. Personally, I am reasonably satisfied with the indication that the new scheme should come into force on 1st April of next year. Although I fear that my later amendments have been tabled in the wrong place, they are intended to achieve that effect. No doubt we shall reach a suitable resolution of that final issue which exercised the minds of the members of the Delegated Powers Scrutiny Committee.

The noble Lord, Lord Windlesham, was kind enough to say that I had agreed not to move Amendment No. 1. However, he did not say that as an experienced ex-Leader of the House. He made it clear that, if I did not so agree, he would move a manuscript amendment before Clause 1 which would pre-empt me. I do not think that I can get round the noble Lord that easily and I should not dream of trying to do so.

The implication of the debate on this series of amendments must be that on these issues the Government have been amenable to persuasion and reason in their consideration of the Bill. I cannot say the same about later amendments because it would be a mistake for the Committee to be given the impression that the Government's flexibility went so far as to cover a wide range of detailed amendments which we have tabled and which we shall debate over the next two days.

Of course, it is valuable for the detail of the tariff and the scheme to be subject to affirmative resolution. But I remind the Committee that, in itself, that is of very limited value because there is no opportunity for amendment. These are extremely detailed, amendable issues. From these Benches in this Chamber there is no opportunity to overturn the Government on an issue of delegated legislation. That is why we have tabled amendments to be considered in Committee which either bring on to the face of the Bill the enduring elements of the scheme without amendment—that is, when we agree with them—or which propose to bring them on to the face of the Bill with the amendments which we consider necessary. That will provide the House with an opportunity to debate all the details of the scheme. Therefore, the Committee stage of the Bill will no longer be a Committee stage of an enabling Bill. I hope that the Committee will recognise that the effort which we have put into the detailed consideration of the extremely complex elements of the scheme which have been published is essential to parliamentary scrutiny. I hope that the Government will be as flexible in considering favourably the arguments which we shall put forward as they have been in responding to the amendments of the noble Lord, Lord Windlesham.

Lord Rodgers of Quarry Bank

There is always a danger in being premature—anticipating the speech of a Minister and assuming that what one wishes her to say will indeed be said. But I too welcome the amendments that are proposed by the Minister and I congratulate the noble Lord, Lord Windlesham, on having the perspicacity to table the amendment and thereby encouraging the Minister in the course that she has adopted.

I agree with the noble Lord, Lord McIntosh, in regard to the shortcomings of affirmative resolutions. But it is certainly better that an affirmative resolution should be laid before the House rather than having no opportunity whatever to discuss the matter. I noted his caution, although expressed in a round-about way, about the idea of amending affirmative resolutions and, most important, occasionally voting against them. In due course I hope that if the House feels fit it will exercise that power, if necessary, on the right occasions. But I say that without prejudice to the welcome which I give to the steps which the Minister has apparently taken.

Baroness Blatch

I am grateful to my noble friend Lord Windlesham for his introduction of the amendments. I hope that my reply will help to reassure my noble friend and others who have spoken. Perhaps I may say also, as a Minister speaking at the Dispatch Box, how much I value the work of the scrutiny committee because it makes us think very carefully about some of the reservations held by that committee. I believe that that work probably smooths the procedure of work through the Chamber.

The scrutiny committee seemed generally satisfied with the Bill's delegated powers, but drew the attention of the House to four points. I shall consider each of those in turn. First, the committee felt that the Minister might wish to give an undertaking to the House that the transitional period between Royal Assent and the start of the new tariff scheme will be kept to a minimum. I can give that assurance.

Our intention that the new scheme should start on 1st April 1996 has been known for a long time. That will allow just sufficient time for, among other matters, Parliament to approve the new scheme. That process will require the affirmative approval of both Houses; for the new authority and complementary appeals panel to be established; for the authority to prepare the accompanying guide to the scheme; for the authority to arrange the printing and distribution of the scheme, its accompanying explanatory guide, and all the new forms which will have to be brought into use; for the authority and appeals panel to arrange appropriate training for their staff and members; and for getting the computer system and other administrative procedures ready for the new scheme.

That represents a great deal of detailed work which will have to be undertaken quickly and efficiently. There is no realistic prospect of compressing that timescale; indeed, if Parliament were to delay, or even withhold, approval of the new scheme it could not be met at all.

That is why it would be quite impracticable to accept the third and fourth of my noble friend's amendments. They would effectively require us to bring the new scheme into force within one month of Royal Assent. If we did so, we could not continue to operate the current scheme. I am afraid that that would leave the victims in limbo. I am not sure that we could even continue settling residual old scheme cases already lodged. But we certainly would not be able to accept new applications because there would be no scheme in operation under which they could apply. I am sure that my noble friend would not want to be held responsible for such a state of affairs, particularly, as he said, as he is president of Victim Support.

Secondly, the scrutiny committee commented that the House may be satisfied that the Bill sufficiently defines the essential elements of the proposed scheme, although important elements of the legislation and its administration will fall to be included in the scheme itself.

We think that we have achieved the right balance, particularly in view of what I shall say next. As Members of the Committee are aware, the Bill is essentially enabling legislation which enables the Secretary of State to make, subject to parliamentary approval, a scheme for compensating the blameless victims of violent crime. As the committee will have seen, the Government have tabled amendments to Clause 10 intended to give Parliament rather than the Executive the final say over all aspects of the scheme.

As the Bill presently stands, certain key elements of the proposed new arrangements—relating to the tariff itself and bearing on quantum—will be subject to prior parliamentary approval before they can be incorporated into the scheme. Our proposed amendments go much further. They will require the whole scheme to be approved by the affirmative resolution procedure. Subsequently, any changes to the more important or key features of the new scheme would require prior parliamentary approval by the affirmative resolution procedure, while changes to any other features would require prior parliamentary approval by the negative resolution procedure. The Executive would no longer be free to make any changes whatever to the scheme without the prior consent of Parliament. I hope that Members of the Committee will agree that this represents a most significant change in the proposed control arrangements, giving Parliament the last word.

Thirdly, the scrutiny committee commented that, given the significance of the delegated powers, this Chamber may wish the Bill to require the Secretary of State to undertake a process of consultation before he can proceed formally to lay his proposals before Parliament in draft.

The Government have in fact already undertaken a process of consultation on the proposed new arrangements. We issued a draft of the proposed new scheme towards the end of August. That set out clearly, and in detail, the proposed rules and procedures of the new scheme. That draft had a wide circulation. It went to Members of both Houses of Parliament who had taken part in earlier debates, and a copy was placed in the Library of the House. It also went to the Law Society, the Bar Council, the Association of Personal Injury Lawyers, Victim Support, the TUC, the police representative bodies, and the equivalent bodies in Scotland. We have already received some useful comment on the draft proposals, and some of that is likely to be reflected in the revised draft of the new scheme which we shall now have to lay before Parliament under the procedures I described a little earlier.

Given that extensive consultation process, I do not think that there is any need to consult yet again in the way the scrutiny committee suggested or in the way that my noble friend's second amendment would require. We would be unlikely to receive any comment that had not already been made under the current consultation exercise, and a further consultation exercise would eat further into the time available to get the new scheme up and running by next April. As I explained earlier, that timetable is already a tight one. However, I can give my noble friend the assurance that he sought; namely, that any changes would be notified to Parliament.

The fourth point that the scrutiny committee made was that the Committee might like to consider the case for allowing the delegated powers to be exercised by a scheme which was not contained in a statutory instrument. But the scrutiny committee went on to say that this Chamber may consider that Clause 10 confers an appropriate degree of parliamentary control of the exercise of delegated powers.

As I have just explained, since the scrutiny committee reported we have tabled amendments which would extend the Clause 10 powers and require the whole scheme to be subject to prior parliamentary approval by the affirmative resolution process. Again, I can confirm to my noble friend the fact that any subsequent amendments would also require parliamentary approval by either the affirmative or the negative resolution procedure, depending on whether or not they affected key elements of the scheme. I hope that Members of the Committee will agree that that confers the appropriate and necessary degree of parliamentary control.

I should perhaps say here that we see no compelling need for the scheme to be set out in a statutory instrument. We want the scheme to be easy for victims to understand, without recourse to legal advice which could be expensive and slow down the process. As far as possible, therefore, we want to use every-day terms that are readily understood. That would be less easy if we had to draft in the legal language and format necessary for statutory instruments. In doing so, we might inadvertently circumscribe any capacity for exercising common sense or a degree of discretion where that was appropriate and quite likely be to the victim's advantage.

However, I can assure Members of the Committee that not only will the negative and affirmative resolution procedure be used, but all the appropriate consultation in advance of any changes would also be followed. I hope that the Committee will share the view and agree that my noble friend's first amendment is neither necessary nor appropriate for a scheme of this nature. I also hope that Members of the Committee will agree that we have given most careful consideration to the points raised by the scrutiny committee, to which my noble friend's amendments were addressed. In those circumstances, I hope that my noble friend will feel able to withdraw his amendments.

4 p.m.

Lord Ewing of Kirkford

I wonder whether I can persuade the Minister to take her argument just a little further. I must say right away that I am personally most grateful to the noble Baroness for sending me a copy of the scheme during the Summer Recess. As the noble Lord, Lord Renton, said, it has been customary through the years for Parliament to establish such a scheme and then, after the scheme has been established and approved by Parliament, to appoint the authority.

I should like to persuade the noble Baroness to give some thought to appointing the authority, if not the appeals panel, as soon as possible and then consult the authority which will be responsible for operating the scheme about the scheme itself. I accept the fact that the Minister and her officials have consulted widely. But would it not be a good idea in this particular instance if the authority were to be appointed as soon as possible and then consulted about the scheme? In that way, we could get away from the custom that Parliament has developed down through the years whereby the scheme is first introduced by Parliament and then the authority which will administer it is appointed. I hope that the Minister will give some thought to that aspect of the matter.

Baroness Blatch

I understand the noble Lord's point. We certainly need to get on with such arrangements as soon as possible; and, indeed, appointing the authority is most important. However, so too is getting the scheme through all its statutory stages and the Bill passed with Parliament's approval of the scheme. As I have already spelt out, that process will tax all of us as regards ensuring that we meet the deadline of 1st April 1996. But, where consultation can be carried out—certainly subsequent to the original scheme being placed before Parliament and approved—I agree that it is absolutely essential that the authority should be the first point of consultation for any changes, however minor.

Lord Windlesham

The reply from my noble friend the Minister is entirely satisfactory. I regard it as a matter of some encouragement that we have been able to resolve the first issue with consent from all sides of the Committee. I shall not be moving my remaining amendments in the series—that is Amendments Nos. 3, 69 and 72. What was said about transitional arrangements, not only by my noble friend but also by the noble Lord, Lord McIntosh, was persuasive. The subject will no doubt be discussed again when we reach the later amendment of the noble Lord, Lord McIntosh. But I shall not move any of the amendments in the series in my name and those of my noble friends. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Archer of Sandwellmoved Amendment No. 4:

Page 1, leave out lines 22 and 23.

The noble and learned Lord said: One ventures to hope that the atmosphere of consensus which has so far pervaded our debate may augur well for the future. It may be to the convenience of the Committee if, with this amendment, the Committee discusses Amendments Nos. 5 and 27 for a reason which I shall endeavour to explain later. The purpose of these amendments is to write into the Bill the definition of a key term. If we had been told prior to the introduction of this Bill that it was about criminal injuries and had then been informed that it would be necessary to write into the Bill by amendment a definition of the term "criminal injury", we might have expressed some surprise. Parliament is being invited to pass a Bill which does not define the very term which is central to the entire purpose of the Bill. It simply declares that the definition "may be specified".

I doubt whether our anxieties would have been laid to rest if we had been told, "It is all right. After Parliament has passed the Bill and it is on the statute book the Government will produce a scheme to explain what they mean by the term which is the key to the whole thing". It is true, of course, that the noble Baroness helpfully circulated to a number of us the draft of the scheme in advance of this debate and for that we are grateful. I am sure, however, that she would not regard that as a substitute for placing in the Bill something which ought to be in the Bill.

At Second Reading I ventured to question a matter which seems to have occasioned some surprise to the scrutiny committee—the constitutional propriety of a Bill which has no content, just a series of blanks, and empowers the Government to fill in the blanks after Parliament has parted with the Bill. Surely, normal constitutional practice is for the Executive to submit a proposal to Parliament and then Parliament rejects it or passes it or amends it, but Parliament is the legislature and that is what is meant by legislating. Of course the proposal need not consist of every detail of the scheme. Lord Hewart back in 1929 thought that it should. He thought that subordinate legislation itself endangered democracy. He was a former Conservative Law Officer. They do not make Conservatives like that any more, and no one would now argue for so extreme a view. But what the Government are doing is to invite Parliament to pass a Bill which virtually declares that the Secretary of State may do as he likes. That is not legislating; that is signing a blank cheque.

Of course, as we were told at Second Reading, it is more flexible to leave it to the Government to make changes and amendments whenever they think fit. So it is, of course. A blank cheque is always more flexible than one in which the drawer inserts what he is agreeing to. The conclusion of that argument would be to abolish the legislature altogether and leave everything to the Executive. No doubt the Home Secretary would be rather in favour of such a proposal, particularly when the judiciary told him that it was a usurpation to introduce a scheme on the very subject on which Parliament had legislated while ignoring the conditions which Parliament had imposed. I remember that some time ago the noble and learned Lord, Lord Hailsham, spoke of a elected dictatorship. This is a legislative vacuum.

We are told that there will be an affirmative resolution and for that we are grateful. We are grateful to the noble Lord, Lord Windlesham, for having raised that matter so early in our proceedings. However, I hope we will be forgiven if we are not wholly comforted. We all know the shortcomings of subordinate legislation, even when it is subject to an affirmative resolution. My noble friend Lord McIntosh mentioned some of them a few moments ago: an unamendable scheme; a brief debate in the silent hours of the night. In this busy generation I suppose that must suffice for matters of detail, but that does not mean that Parliament must abdicate its legislative role in the very structure of what is proposed. We would wish to register our protest against this haemorrhaging to which parliamentary democracy is being subjected.

As to the definition of a criminal injury which we invite the Committee to write into the Bill, it is unlikely that there will be much controversy about that, because it is the Government's own definition in the draft scheme. Our quarrel is not with the definition. However, if it is ever to be changed we want to see Parliament invited to alter it by a proper constitutional process because it is a key term in the whole Bill. If some future Home Secretary decided to exclude half the crimes of violence to which the scheme applies, we want not merely to be told but to be part of the decision. To be informed that it will be subject to an affirmative resolution does not meet that anxiety. As to that part of the definition which relates to the place where the offence took place, we are content for that to remain in the scheme. There is room for discussion as to what is a matter of detail. However, we are troubled when we find that the definition of a detail is in effect everything which the Government may seek to do. Henry VIII might have approved of that, but Henry VIII, of course, is dead.

Finally, as regards Amendment No. 27, we suggested that that might conveniently be grouped with Amendments Nos. 4 and 5 because it is an example of what they are about. We have no quarrel with what the scheme proposes. We are saying simply that this is an example of matters which ought to be in the Bill. Our Amendments Nos. 4 and 5 say that in any event to have a Bill about criminal injuries which does not define the term "criminal injury" is a constitutional impropriety. I beg to move.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo)

Before I read out Amendment No. 4 I should inform the Committee that a mistake occurs in Amendment No. 5, which is grouped with Amendment No. 4 on the Marshalled List. The third line from the end, which refers to subsection (3)(a), should refer to subsection (1)(a).

4.15 p.m.

Baroness Blatch

The aim of Amendments Nos. 4 and 5 is to bring onto the face of the Bill some of the more detailed provisions of the scheme itself, those which establish what constitutes a "criminal injury" for the purpose of the scheme, and those which provide for the payment of awards by structured settlements. We do not think that is either necessary or appropriate.

Clause 1 of the Bill requires the Secretary of State to make a scheme for the payment of compensation to the victims of criminal injury. Among other things Clause 1 of the Bill requires the scheme to specify the meaning of "criminal injury". The substance of new Clause 1 draws heavily on the draft scheme we have published in this respect. The remaining clauses of the Bill set out various matters in respect of which provision must be made in the scheme, and also give a clear indication of the scope of the Secretary of State's powers by giving examples of particular matters in respect of which provision may be made. The Bill thus clearly sets out the basic parameters of the scheme but leaves the detail to be set out in the scheme itself made under the Bill's powers.

I propose to set out arguments which will apply to other amendments which seek to insert the detail of the scheme onto the face of the Bill. The Delegated Powers Scrutiny Committee of this House was clearly not averse to this approach. As has already been said, in its fourteenth report it commented, among other things, that the House may be satisfied that the Bill sufficiently defines the essential elements of the proposed scheme. It also said that the House may consider that Clause 10-requiring approval of the most significant parts of the proposed scheme by the affirmative resolution procedure—confers an appropriate degree of control of the exercise of the delegated powers. Since then, as the Committee will be aware from the amendments we have tabled to Clause 10, we are proposing to go further and make the whole scheme subject to prior parliamentary control by the affirmative resolution procedure. Subsequent amendments will also be subject to parliamentary control in the form of either the affirmative or negative resolution procedure, depending on whether or not the changes relate to key features of the scheme.

I invite the Committee to consider the disadvantages of trying to put too much detail on the face of the Bill. That would be too prescriptive, too unwieldy and too inflexible, requiring further primary legislation to make any changes that prove necessary in the light of experience or changing circumstances. I should say here that although these amendments seek, by and large, to replicate in the Bill some of the detailed provisions of the draft scheme which was widely circulated at the end of August, it has already become clear from the very useful feedback we have been receiving that some of those provisions may need to be amended in the interests of clarity and accuracy. Thus, to incorporate such provisions in the Bill—knowing already that some changes may well be needed—would be irresponsible and could only work to the disadvantage of victims. On the other hand, there is no disadvantage to victims in not having the detail set out in the Bill itself.

It might be argued nonetheless that we should accept these amendments—and similar ones—and change them as necessary during the remaining stages of the Bill. However, as the Committee will be aware, there is very little time left, and I would not be able to give an assurance to the Committee that we would be able to get everything right in the time available, particularly as we are still receiving comments on the draft scheme which could necessitate further change.

As an alternative it might be suggested that we accept the changes as drafted but provide a further power in the Bill to make any changes that subsequently prove necessary by subordinate legislation. I doubt that taking such Henry VIII powers would be regarded as acceptable. The Committee may agree that having gone to all the trouble of setting out a detailed scheme in primary legislation it would be inappropriate to allow it to be changed by secondary legislation. That would not seem to serve any good purpose. We think our approach is much better. It is pragmatic, sensible and transparent. That is important. In addition, it will not place victims at any disadvantage. Similar arguments apply to Amendment No. 27. That aims largely to replicate paragraph 42 of the draft scheme, which makes provision for structured settlements.

I have explained why we think it inappropriate and unnecessary to include such detail on the face of the Bill, and I would have asked the Committee to reject the amendment on that point of principle alone.

Furthermore, the substance of the amendment is unacceptable because it makes no provision for the cost of setting up the structured settlement to be met from the award. That would mean that the cost would have to fall on the scheme administration. That does not accord with usual practice and is not acceptable.

I hope that for those reasons the Committee will reject the amendments if they are pressed.

Lord Macaulay of Bragar

Before the noble Baroness resumes her seat, perhaps I may suggest that a simple solution to the definition of criminal injury could be to add the words "as may be specified in terms of the scheme". The scheme is defined in the next clause.

Baroness Blatch

The point at issue is whether the definition itself should appear on the face of the Bill or be contained within the scheme. We argue that it should be within the scheme, and therefore that is where the definition of criminal injury should reside.

Lord Macaulay of Bragar

My noble and learned friend Lord Archer made the point very forcefully from this side of the Chamber that there may well be a simple solution. I declare an interest as a member of the Criminal Injuries Compensation Board. All members of the board are very anxious to make sure that we have a scheme which is workable and understandable. We do not want to get involved in semantics. As has been indicated from both sides of the Chamber, we are trying to agree on a workable scheme. I was only trying to be helpful, but perhaps my noble and learned friend Lord Archer may not agree with me.

Lord Carlisle of Bucklow

In moving the amendment the noble and learned Lord, Lord Archer, said that it merely repeated what was contained in the draft scheme proposed by the Government. Will my noble friend the Minister confirm that it repeats the existing procedure under the 1990 scheme and makes no difference in substance in terms of the definition of criminal injuries?

While I am on my feet perhaps I may ask my noble friend a further question. The only substantial change to the scheme is proposed in Amendment No. 27 tabled by the noble and learned Lord, under which it is intended that there should be power to make structured settlements. At present under the criminal injuries compensation scheme there is no power to make structured settlements. Many of us who are members of the board have believed for some time that it would be in the interests of certain seriously injured victims if we had such a power. I ask my noble friend whether she can confirm that it is the intention of the Government, once the Bill has been passed, to permit the present board, in implementing the existing non-statutory scheme, to provide for structured settlements.

If my noble friend wants a moment or two to obtain an answer to that question, perhaps I may ask her a further question. Am I also right in saying that there is a change in the definition of mental injury, which is brought into line with certain decisions of the House of Lords as to the type of mental injury which will be compensated when the individual himself has not been physically attacked?

Lord Simon of Glaisdale

This is the second Bill this Session under which a statutory phrase is to "have such meaning as may be prescribed". I well understand that, and the noble Baroness made it very clear why she likes that approach in this Bill. However, we should be very chary of conceding that type of draftsmanship. As the noble and learned Lord, Lord Archer, pointed out, the most essential phrase in the Bill is "criminal injury", and "criminal injury" is to "have such meaning as may be prescribed".

The noble Baroness made it very clear that the Government may wish to tinker with the details. That is understandable. However, that drives us back to the point made by the noble Lord, Lord McIntosh, earlier that we are allowing adjustments in the detail to be made by subordinate legislation; in other words by legislation which cannot be amended. I have felt for a long time that the unamendability of subordinate legislation particularly endears itself to Whitehall and is probably a sticking point. However, we ought to think very carefully about how far we accept provisions that require amendment and are intrinsically subject to the requirement of amendment, and indeed are called into being because they require adjustment and amendment, and whether such provisions should not be subject to some procedure whereby they can be amended notwithstanding that they are subordinate legislation.

Techniques are available. On occasion, the noble Earl, Lord Russell, has used a resolution procedure in relation to subordinate legislation asking that the Government take account of this or that. I am not sure that that procedure goes far enough, but it is necessary that where we have provisions which need amendment and which have been called into being because they need amendment, the amendments should be subject to parliamentary control in some way. At present we do not have that directly. What we have seen over the past decade or so is the gradual attenuation of parliamentary control over legislation; and that is a very serious matter indeed. The arguments regarding flexibility are paraded every time. Nevertheless, Members of the Committee will not wish to be beguiled for all time into, in effect, surrendering parliamentary control over important areas of legislation.

Having said that—it is only by way of warning—I do not invite the noble and learned Lord to press the amendment to a Division. However, we should be very careful, very chary, as we go along that path. Officials in Whitehall should be warned that noble Lords are unlikely to put up indefinitely with the phrase that a statutory provision shall have such meaning as may be prescribed, or that a measure requires amendment and adjustment from time to time which, it is asserted, calls for a procedure which is unamendable.

I do not oppose the measure on this occasion; I believe that it may be a special case. However, there are few special cases. We should be aware of the path that we have trodden—namely, a substantial abnegation of parliamentary control of legislation over the past decade.

4.30 p.m.

Baroness Blatch

First, I am grateful to the Committee. It has been an important and useful debate. Perhaps I may say to my noble friend Lord Carlisle that I can give him all the assurances that he seeks. The definition of "criminal injury" is indeed a replication of the scheme as it stands. I can also say that when Royal Assent is given to the Bill the existing scheme will be amended to allow structured settlements for residual claims. I know that that is an important point.

There will be a change regarding the definition of "mental injury" in the interests of clarity if nothing else. I hope my noble friend will accept that I shall write to him on that. I shall copy my reply to anyone who is interested.

We have had the main debate about what should be on the face of the Bill and what should be contained in the scheme. We have the safeguard that the scheme itself, and the key points of the scheme—this issue would certainly be regarded as a key point of the scheme—would be subject to the affirmative resolution procedure and lesser points would be subject to the negative resolution procedure. On that the Government rest their case and hope that the amendment will be withdrawn.

Lord Archer of Sandwell

I confess that I was a little surprised that the noble Baroness described the definition of "criminal injury" in the Criminal Injuries Compensation Bill as one of the more detailed provisions of the Bill. I was fortified that the noble and learned Lord, Lord Simon, shared my surprise.

I wholly agree with the noble Baroness that one does not wish to put too much detail in a Bill. I am no disciple of Lord Hewart. However, how does one draw the distinction between what is detail and what is essential to the structure of the measure being undertaken and how should we retain control over changes in that structure?

I was also a little surprised that the noble Baroness stated that one of the difficulties regarding the amendment was that, although we have accepted the Government's own formulation, as the noble Lord, Lord Carlisle, sought to confirm, the Government still wish to be in a position to amend their own formulation in the light of consultation. If the appropriate consultation had been carried out before the Bill was introduced, the Committee would not be confronted with such a difficulty.

I take the view that what we initially stated on this matter is still the case. As the noble and learned Lord, Lord Simon, pointed out, we have seen an attenuation of the powers of parliamentary control over legislation over the past decade. One can think of a number of examples even within the past two Sessions. We regard the issue as a matter of very real principle. I see no sign that the Government—not even the Home Office, to whom one normally looks for an appreciation of or a sensitivity to the constitutional proprieties—have taken that matter on board or that there is any meeting of minds on the subject. Therefore, although the noble and learned Lord, Lord Simon, suggested that I might think again about taking the opinion of the Committee, I believe that this is one of the essential matters of principle in the Bill and I propose to take the opinion of the Committee.

Baroness Blatch

Before the noble and learned Lord sits down, perhaps I may add one point. I suggest that he stated quite wrongly that the Government are putting the definition into the scheme because they may want to change it. That is not the reason why that definition is in the scheme. Should a change be necessary, it is important to recognise that we should have a faster track to allow that change to take place than we would have if the provision were on the face of the Bill.

It is true that in recent times changes have been made to the definition. Therefore it is a question of convenience, of the benefit being wholly in the interests of the victim and of getting the matter right. The long stop must be that at the end of the day with regard to any change, and in particular a change of this nature, the Government must have the last word.

Lord Archer of Sandwell

If I misunderstood the noble Baroness, I apologise. I thought that she was arguing that, because we are still carrying on consultations about the draft scheme, we may want to change what is in the draft scheme and therefore we do not want to put the definition into the Bill; that we may want to change the provision before anything is done under the scheme. That seems a different point from arguing that at some point in the future we might want to change the matter and would like to keep it flexible. The arguments are different in the two cases. On either limb it seems to me that the Government have not made out their case. If they are likely to want to change the draft scheme in the immediate future, the consultations and reflections should have been undertaken earlier. If they are talking about the advantages of flexibility, we are back to the flexibility of the blank cheque.

Lord Carlisle of Bucklow

Perhaps the noble and learned Lord, Lord Archer, will reflect for a moment on what he says. It is a fact, I am sure he will agree, that the current non-statutory scheme has been changed from time to time over the years to the advantage of the scheme. Does he not believe that if every desired change in future had to he by primary legislation, that is imposing too great a burden on the Government and on the scheme and that it is better to have the flexibility proposed by the Government?

Lord Archer of Sandwell

I agree that we should have a degree of flexibility. That is why I attempted to draw a distinction between matters which should properly be left to flexibility and those which are part of the essential structure of the measure that Parliament is being asked to agree. I hope that the noble Lord does not seek to argue that the definition of "criminal injury" in a Bill on criminal injuries should be left flexible. That is the issue between us. That is why I seek to test the opinion of the Committee.

4.39 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 78; Not-Contents, 138.

Division No. 1
CONTENTS
Addington, L. Lester of Herne Hill, L.
Allen of Abbeydale, L. Lockwood, B.
Archer of Sandwell, L. Longford, E.
Ashley of Stoke, L. Lovell-Davis, L.
Blackstone, B. Macaulay of Bragar, L.
Broadbridge, L. McIntosh of Haringey, L.
Bruce of Donington, L. McNair, L.
Callaghan of Cardiff, L. Mar and Kellie, E.
Carmichael of Kelvingrove, L. Monkswell, L.
Carter, L. Morris of Castle Morris, L. [Teller.]
Cledwyn of Penrhos, L.
Cocks of Hartcliffe, L. Murray of Epping Forest, L.
Dahrendorf, L. Nicol, B.
David, B. Plant of Highfield, L.
Dean of Beswick, L. Redesdale, L.
Dean of Thornton-le-Fylde, B. Richard, L.
Desai, L. Robson of Kiddington, B.
Donaldson of Kingsbridge, L. Rodgers of Quarry Bank, L.
Dormand of Easington, L. Sainsbury, L.
Eatwell, L. Seear, B.
Ewing of Kirkford, L. Sefton of Garston, L.
Falkender, B. Serota, B.
Fisher of Rednal, B. Shannon, E.
Fitt, L. Shepherd, L.
Gladwin of Clee, L. [Teller.] Simon V
Graham of Edmonton, L. Stallard, L.
Gregson, L.
Harris of Greenwich, L. Stedman, B.
Haskel, L. Stoddart of Swindon, L.
Headfort, M. Strabolgi, L.
Hilton of Eggardon, B. Taylor of Blackburn, L.
Houghton of Sowerby, L. Taylor of Gryfe, L.
Howie of Troon, L. Tordoff, L.
Hughes, L. Turner of Camden, B.
Hutchinson of Lullington, L. Wallace of Coslany, L.
Hylton-Foster, B. White, B.
Jay of Paddington, B. Wigoder, L.
Jeger, B. Williams of Elvel, L.
Jenkins of Hillhead, L. Williams of Mostyn, L.
Judd, L. Winchilsea and Nottingham, E
NOT-CONTENTS
Aberdare, L. Inglewood, L.
Abinger, L. Johnston of Rockport, L.
Addison, V. Kimball, L.
Ailsa, M. Kintore, E.
Aldington, L. Lane of Horsell, L.
Alexander of Tunis, E. Lauderdale, E.
Allenby of Megiddo, V. Lindsay, E.
Ashbourne, L. Lindsey and Abingdon, E.
Astor of Hever, L. Long, V.
Balfour, E. Lucas, L.
Belhaven and Stenton, L. Lucas of Chilworth, L.
Beloff, L. McColl of Dulwich, L.
Bethell, L. Mackay of Ardbrecknish, L.
Blake, L. Mackay of Clashfern, L. [Lord Chancellor]
Blaker, L.
Blatch, B. Macleod of Borve, B.
Blyth, L. Marlesford, L.
Boardman, L. Merrivale, L.
Borthwick, L. Mersey, V.
Boyd-Carpenter, L. Miller of Hendon, B.
Brabazon of Tara, L. Milverton, L.
Braine of Wheatley, L. Monteagle of Brandon, L.
Brougham and Vaux, L. Mountevans, L.
Cadman, L. Mowbray and Stourton, L.
Campbell of Alloway, L. Munster, E.
Campbell of Croy, L. Murton of Lindisfarne, L.
Carlisle of Bucklow, L. Nelson, E.
Carnegy of Lour, B. Norfolk, D.
Carnock, L. Norrie, L.
Chalker of Wallasey, B. Northesk, E.
Chelmsford, V. O'Cathain, B.
Chesham, L. [Teller.] Onslow, E.
Clark of Kempston, L. Orr-Ewing, L.
Colnbrook, L. Palmer, L.
Courtown, E. Pearson of Rannoch, L.
Cox, B. Pender, L.
Cranborne, V. [Lord Privy Seal.] Prentice, L.
Pym, L.
Cumberlege, B. Rawlings, B.
Davidson, V. Rennell, L.
De Freyne, L. Renton, L.
Dean of Harptree, L. Renwick, L.
Dixon-Smith, L. Rodger of Earlsferry, L.
Donegall, M. Romney, E.
Downshire, M. St. Davids, V.
Eccles of Moulton, B. Selborne E
Ellenborough, L. Sharples, B.
Elles, B. Shaw of Northstead, L.
Elliott of Morpeth, L. Skelmersdale, L.
Faithfull, B. Soulsby of Swaffham Prior, L.
Ferrers, E. Stevens of Ludgate, L.
Finsberg, L. Stewartby, L.
Gainsborough, E. Strange, B.
Gardner of Parkes, B. Strathcarron, L.
Gilmour of Craigmillar, L. Strathclyde, L. [Teller.]
Gisborough, L. Sudeley, L.
Goschen, V. Swinfen, L.
Gray of Contin, L. Tebbit, L.
Gridley, L. Templeman, L.
Hailsham of Saint Marylebone, L. Teviot, L.
Thomas of Gwydir, L.
Harding of Petherton, L. Tryon, L.
Harmsworth, L. Tugendhat, L.
Harrowby, E. Ullswater, V.
Hayhoe, L. Westbury, L.
Henley, L. Whitelaw, V.
Hesketh, L. Wilberforce, L.
HolmPatrick, L. Wise, L.
Hothfield, L. Wynford, L.
Howe, E. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 1 agreed to.

The Earl of Courtown

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.