Lords Sitting of 17 October 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Norwich.

Temazepam
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they accept that the sleeping pill Temazepam can become dangerous when combined with alcohol and other substances; and whether they have any further plans to reclassify the drug.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, my right honourable friends the Home Secretary, the Secretary of State for Health and the Secretary of State for Scotland announced on 12th September that Temazepam will be reclassified and in future it will be a criminal offence to possess the drug without authority. Pharmacies will be required to store the drug more securely and licences will be required for exports and imports. Today my right honourable friend the Secretary of State for Health will be announcing that GPs are to he banned from prescribing Temazepam capsules on the NHS.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for her welcome reply. Can she confirm that possession of the drug without a prescription will he treated severely? Also, is my noble friend aware, following her last statement, that GPs in the areas where misuse of this drug has been most prevalent are reported to be in favour of a complete ban because of the numbers of deaths connected with it?
Baroness Cumberlege: My Lords, the Government take illegal possession of any drug extremely seriously. As this drug has been reclassified, normal sanctions will be taken against those who are in possession of it without a prescription.
Baroness Masham of Ilton: My Lords, is the Minister aware that in Glasgow, which I recently visited, the melting down and injecting of jellified Temazepam blocks the veins and causes terrible problems which result in amputation and death? Glasgow would like to see the jellified version banned altogether.
Baroness Cumberlege: My Lords, we share the anxieties of the noble Baroness. That is why from today the jellified form—that is, the capsules—will be banned.
Lord Rea: My Lords, does the noble Baroness agree that although National Health Service practitioners are banned from prescribing the jellified form of Temazepam, private practitioners are not proscribed from prescribing? Perhaps the noble Baroness will give her comments on that point.
Baroness Cumberlege: My Lords, from today it will be illegal to prescribe in any form, privately or on the NHS, the capsule form of Temazepam.
Lord Campbell of Croy: My Lords, is my noble friend aware that one doctor said of this dangerous mixture, "It makes you feel fearless; it disinhibits violence and it diminishes anxiety; your brain no longer functions and you do foolish things"? Should there not be in future compulsory testing for this drug of those attending all the party conferences?
Baroness Cumberlege: My Lords, I think some of us on the Front Bench could do with a shot of Temazepam occasionally.
Baroness Jay of Paddington: My Lords, while accepting that the Government are trying to control Temazepam through the supply of the drug, can the Minister assure us that the Government will take equally positive action to try to reduce the demand particularly among teenagers where it is becoming rife?
Baroness Cumberlege: My Lords, Temazepam in its tablet form and in what is described as an "elixir" form—that is, a liquid form—is one of the most commonly prescribed sleeping aids for all age groups. We shall be issuing guidance shortly to the professions, particularly GPs, on general Benzodiazepine prescribing. We are convinced that in some cases it is inappropriate.
Lord Skelmersdale: My Lords, what advice can my noble friend give to those patients who have Temazepam, unused for a number of months, still at the back of the medicine cabinet?
Baroness Cumberlege: My Lords, they should return it to the chemist.

Grant-Maintained Schools
2.42 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What is their present policy on grant-maintained schools.
The Minister of State, Department of Education and Employment (Lord Henley): My Lords, grant-maintained status is the best route for ensuring good management and high standards in schools. We are considering ways of extending the benefits of self-government to all schools and will be consulting shortly on means of smoothing the path to self-government for Church schools.
Lord Dormand of Easington: My Lords, does the Minister recall the Prime Minister saying during the Recess that his aim is for all schools to be grant maintained? It may have been a touch of summer madness. As, after four years, only 1,100 schools out of 24,000 have chosen to opt out, following incentives amounting to millions of pounds, will the Government give a firm assurance that they will not dispense with ballots?
Lord Henley: My Lords, my right honourable friend the Prime Minister stated quite clearly that it was his ambition to see all schools benefit from the advantages that accrue from having self-governing status. He then said that he hoped that my right honourable friend the Secretary of State for Education and the department could look at ways of achieving that policy. For the moment grant-maintained status remains voluntary but we believe, and the Prime Minister believes, that the benefits of GM status are so great that they could and should be extended, where possible, to all schools.
Baroness Farrington of Ribbleton: My Lords, can the Minister assure the House that under the proposed changes the parents of children in Church schools will be able to express their views about any proposals for GM status in exactly the same way as the parents of children in non-Church schools? Does the Minister agree that in many cases the Church authorities, the governors and the parents are of the opinion that the good relationship that exists between local education authorities and Church authorities should be respected and maintained and not smoothed away, to use the Minister's euphemism?
Lord Henley: My Lords, I do not believe I used a euphemism. We believe that there are terrific advantages in all schools having the benefit of grant-maintained status. The Prime Minister made it clear that he would look first of all at voluntary-aided schools. I mentioned those in my introductory Answer We are looking at possible ways of fast-tracking that process for Church schools. I shall not give any assurances one way or the other about what process we shall pursue when we have reviewed the matter but we believe that there are considerable advantages for Church schools and for other schools in pursuing this process.
Lord Morris of Castle Morris: My Lords, is it not a fact that the whole grant-maintained initiative is waning seriously already—1,100 out 24,000 after all this time—because, despite all the persuasions, all the inducements and all the threats, schools have looked at this initiative and they do not want it? Since the Government are absolutely determined to refuse to recognise that, is it not time that the Government had the courage either to try to make it compulsory by forcing through legislation or—far more preferable—to abandon this scheme altogether?
Lord Henley: My Lords, the grant-maintained school process has considerable support, as the noble Lord well knows, from those in his own party who have made use of the process. If the noble Lord thinks that the process is on the wane, perhaps I may remind him that at present one-in-five children in England in secondary education are at grant-maintained schools. It is very popular indeed with parents. I believe the process will grow as more schools see the advantages of it. In time we shall see all schools pursuing this process.
Lord Pearson of Rannoch: My Lords, while applauding what my noble friend has said about the Government's grant-maintained schools initiative, would he agree with me that there is another less obvious advantage in that some of even the nastier local
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education authorities may behave better than they would have done were the prospect of grant-maintained status for their schools not available?
Lord Henley: My Lords, I would not want to single out any particular LEA but I can assure my noble friend that the process concentrates minds wonderfully.
Lord Ewing of Kirkford: My Lords, is the Minister aware that in Scotland only one school has opted out and that there has been only one other application to consider opting out? Against that background, will the Minister pay tribute to the comprehensive education system and its great success and give an absolute undertaking that nothing the Government do will undermine the comprehensive education system?
Lord Henley: My Lords, like the great lexicographer Dr. Johnson, I should like to pay tribute to education in Scotland. But I am sure that even that number will expand in due course and that many more schools in Scotland will see the benefits of grant-maintained status. That one will grow to two; in time that will double again, and double again, and double yet further.
Baroness Seear: My Lords, did the noble Lord really mean to say that one in five children were in grant-maintained schools, or did I mishear him? If the number is only 1,100 out of 24,000 schools, the arithmetic seems very peculiar.
Lord Henley: My Lords, I can assure the noble Baroness that my arithmetic is not very peculiar. If she had listened to my remarks precisely she would realise that I said one in five children at secondary school stage were at grant-maintained schools.
Lord Pearson of Rannoch: My Lords, does my noble friend feel like reminding the Benches opposite when they persistently raise this subject that it took eight years for the first 1,000 schools to go comprehensive whereas, according to the noble Lord, Lord Dormand of Easington, it has taken four years for 1,000 schools to become grant-maintained? Surely that shows that the initiative is not working all that badly?
Lord Henley: My Lords, my noble friend's arithmetic is very encouraging indeed. I am sure that in another four years, after the next election, when we have been returned to power for our fifth term, we shall see yet more schools pursuing the benefits of grant-maintained status.
Lord Dormand of Easington: My Lords, is the Minister aware that it is quite clear from what he told me in answer to my original Question that the Government are not ruling out dispensing with ballots? By the same token may I ask whether the Government intend to do anything about the fact that parent governors who were elected or appointed to governing bodies because they were the parents of children in schools do not now have children in the schools? In those circumstances, does he not agree that it is time that the Government gave further thought to having ballots at appropriate times? He may recall that when the legislation was being debated some of his noble friends suggested that that was essential. However, the original concept and purpose of the scheme has now passed.
Lord Henley: My Lords, I do not agree with the noble Lord. I cannot give him the assurance that he would like. We believe that there are considerable benefits in the opt-out process and going grant maintained. In time we would like to see all schools pursue that aim.

Healthcare 2000 Report
2.50 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What is their response to the report by Healthcare 2000 under the chairmanship of Sir Duncan Nichol.
Baroness Cumberlege: My Lords, while not agreeing with all the conclusions, the Government consider the Healthcare 2000 report a useful contribution to the health debate.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for her reply and obviously her helpful comment about the future of the health services. Is the Minister aware that some of us feel a little doubtful about the quarter from which the advice has come, bearing in mind Sir Duncan Nichol's record as the chief executive of the National Health Service under which the computer scandals in Wessex took place and those in the West Midlands, which he tried to suppress by refusing to publish the reports of the district auditors in those matters?
Baroness Cumberlege: My Lords, of course another member of this particular organisation responsible for the report is Patricia Hewitt, who is also a member of the Commission on Social Justice.
Lord Bruce of Donington: My Lords, does the noble Baroness agree that one of the lessons that can be learnt from the report to which the Question refers is how dangerous it is for anybody considering this matter to ignore the probability that the rate of growth in the economy is likely to continue for the next few years? Does she further agree that it is also highly possible that governments may be elected that will drastically reduce unemployment and poverty in this country, which are two of the principal causes of many of the claims on the National Health Service?
Baroness Cumberlege: My Lords, it would be very unwise for anyone reading this report to ignore the growth in the economy, not only that which has taken place, but that which is forecast. It is quite right that the commission which undertook this work should have considered demographic changes. But when we look at the funding of the National Health Service, it has increased by 3 per cent. per year since 1979, unlike during the last Labour administration when there was a cut of 2.7 per cent.

Land-mines: UN Conference
2.53 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What decisions took place at the review conference on the Inhumane Weapons Convention concerning any adverse humanitarian and developmental effects of land-mines; what recommendations they put forward at the conference for future control of land-mines; and whether any changes in the convention are intended as a result.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we have, with our western allies and partners, made a series of proposals to the UN Inhumane Weapons Convention, which would significantly strengthen its Protocol II on land-mines. We are very disappointed that consensus on such changes was not achieved at the session of the review conference which has just taken place in Vienna. The main obstacle was the unwillingness of some countries to negotiate effective, tighter restrictions on land-mines.
Lord Judd: My Lords, is the Minister aware that to all who work with the organisations concerned with the grim human consequences of land-mining, as I do, the news of this delay will come as a profound disappointment? Does she accept that it is estimated that during the 11 weeks of the conference alone a further 1,600 victims were killed or maimed, and that land-mining frequently continues to render agricultural development impossible? Has the Minister seen the United Nations Secretary General's calculation that at the present rate of laying and clearing land-mines, two or more decades are added each year to the time required to complete clearance? Will she be assured that she has the full support of this House in everything she can do to keep this issue as a top government priority? Will the Government give a lead by banning the export of all anti-personnel mines?
Baroness Chalker of Wallasey: My Lords, I am grateful to the noble Lord, Lord Judd. I do express our profound disappointment at what happened at the 11-week conference. There is no question that we worked extremely hard to get agreement to the proposed stringent technical standards for self-destruction mechanisms and detectability. The failure to reach agreement shows the difficulties or actually achieving effective measures. I have to say that a total ban at this stage is unrealistic. The noble Lord is right in saying that there are more and more victims. It is very sad that developing countries like Mozambique, Angola, Vietnam, Cambodia and Afghanistan, possessing land that could be returned to agricultural use, with the exception of Vietnam, were not represented at the conference. Those countries might have been the ones that could have changed the minds of the countries which resisted our proposals.
Lord Redesdale: My Lords, can the Minister give an assurance that no British companies are at present involved in research or the development of land-mine systems or their remote delivery systems?
Baroness Chalker of Wallasey: My Lords, I cannot go into the details of what every single company is involved in. It is more than 10 years now since this country exported anti-personnel land-mines. Therefore, I would have thought that it would be rather negative spending to get involved in such research as the noble Lord mentions.
Lord Trefgarne: My Lords, can my noble friend say whether any progress has been made in developing a technology to find the plastic land-mines which up to now have defied conventional detection means?
Baroness Chalker of Wallasey: My Lords, I am aware of some progress that has been made, but I cannot recall the detail. I shall write to my noble friend.
Lord Monkswell: My Lords, can the Minister assure us that the anti-personnel elements in the runway denial ordnances used by the Royal Air Force are to be stripped out of those weapons in order to prevent the maiming and destruction of human beings some time after the delivery of those weapons?
Baroness Chalker of Wallasey: My Lords, to begin with, a runway is not an ideal place for any person to wander. However, I take the point which the noble Lord is making when he says that, for certain reasons, such weaponry has been used in times of war. They were no doubt used during the Gulf conflict, but I do not have the details to hand. I repeat that we are out to obtain an end to the trade in non-self-destructing and non-detectable anti-personnel mines. We are also out to make sure that there will be a total ban on these munitions, including a ban on the export of all anti-personnel weapons to countries which have not ratified the weaponry convention. That will cover the vast majority of cases. But we need progress from those countries who baulked at making a decision on Protocol II in the past 11 weeks.
Lord Molloy: My Lords, while acknowledging the endeavours of the Minister, I ask him whether the term "land-mines" includes not only anti-tank mines but that sometimes more horrible weapon, the anti-personnel mine.
Baroness Chalker of Wallasey: My Lords, they are indeed extremely dangerous. It is on the clearance of the anti-personnel mines that the Overseas Development Administration has increased its spending from about £360,000 four years ago to nearly £6 million in the past financial year. We continue to support the Halo Trust and the Mines Advisory Group, as well as many other groups who are doing such important and very brave work overseas.
Lord Kennet: My Lords, can the Minister tell the House which were the countries principally responsible for frustrating the work of the conference?
Baroness Chalker of Wallasey: My Lords, I do not believe that it is very productive to start pointing fingers. However, they are both big countries and not exactly our friends in the past.
Lord Taylor of Gryfe: My Lords, did I hear the Minister aright in saying that it was not realistic to ban the export of these devilish devices? Would she expand on why it is unrealistic for this country to give that kind of moral leadership in banning these mines?
Baroness Chalker of Wallasey: My Lords, the noble Lord will recall that a number of international borders have been policed by having mines. I think particularly of the border between Finland and Russia, but those mines have been fenced and their placement is known. As I said, a total ban is unrealistic at the present time. Of course, the practical approach is to get the broadest possible international agreement, with effective measures that will reduce the dangers to civilians. That includes measures to restrict those long-lived dumb mines which are the most dangerous to civilians and which are still being planted, as the noble Lord, Lord Judd, said in his supplementary question.
Lord Dubs: My Lords, is the Minister aware that a great deal of what she has said will bring much comfort and will be widely approved by those who take a stand against such awful weapons? However, is she aware that her continued reference to self-destruct mines weakens the case of the Government against achieving an outright ban? Does she not agree that if she says that self-destruct mines are okay and that non-self-destruct mines are not, that opens the door to a continuing trade in such mines throughout the world because non-self-destruct mines are cheaper and there is therefore every encouragement for governments who wish to use such weapons to continue to buy those mines? Will the Minister reconsider the matter and move forward towards achieving a total ban on all anti-personnel land-mines?
Baroness Chalker of Wallasey: My Lords, I know that a total ban is attractive, but if we hold out indefinitely for a total ban on all land-mines we will not be taking the preventive action that we could take in the shorter term. We have reviewed all the difficulties of getting international agreement. I know that it would be marvellous for Britain (or any other country) to take unilateral, virtuous and responsible decisions—it might make Members of the Opposition as well as the Government feel better—but it would have little practical effect. Our fundamental priorities are totally unchanged. We want a much strengthened Protocol II with tight technical and other restrictions which will reduce the dangers to civilians from the indiscriminate use of land-mines while still permitting the legitimate use in defence terms of self-destruct mines under tightly controlled circumstances.
Lord Richard: My Lords, is Britain still exporting such weapons?
Baroness Chalker of Wallasey: My Lords, the noble Lord must have been occupied with another subject when I said that we have not exported such weapons for more than 10 years.
Lord Ewing of Kirkford: My Lords, is the Minister aware that I have been listening with absolute awe and admiration to the way in which she is determined to

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have land-mines banned in all countries? Is it her intention to bring the same determination to bear on the French Government to stop their nuclear testing?
Baroness Chalker of Wallasey: My Lords, that has absolutely nothing to do with land-mines. However, I am delighted to say that we were supported by the French in our discussions over an 11-week period.
Lord Mackie of Benshie: My Lords, I think that the Minister said that £6 million is now being spent on research into the control and destruction of such mines which represent a worldwide problem. Does she think that that is enough?
Baroness Chalker of Wallasey: My Lords, it is not a question of how much money is spent; it is a question of the application of that money to the continuing worldwide manufacture of such mines although many countries, like us, no longer export them. It is a question of targeting and of making sure that the technology is appropriately addressed.
Viscount Waverley: My Lords, does the Minister know why the countries she mentioned earlier did not attend the review conference? Was it through lack of funds?
Baroness Chalker of Wallasey: My Lords, I am quite certain that if they had wanted to attend, they would have known my phone number and rung up.
Lord Judd: My Lords, taking into account what the Minister said about the lack of urgency at the conference, does she agree that it might be a good idea to reconvene the conference in Cambodia or a similar country so that the participants are forced to face the reality? In view of the Minister's undoubted commitment to this issue, will she reassure the House about the purpose of the top-level conference which is planned at Shrivenham next month at which delivery systems are to be discussed? Can the Minister assure the House that that will in no way either directly or indirectly accentuate the nightmare with which we are concerned this afternoon?
Baroness Chalker of Wallasey: My Lords, on the noble Lord's last question about the Shrivenham conference, I shall make inquiries. I cannot give him any direct answer at the moment. In view of the noble Lord's suggestion that we might ask for such a conference to be hosted by one of the countries still beset by the horrors of mines, it is a thought, but I think that we might see better attendance in a rather more centrally placed country with better airline contacts.

Judicial Standing Orders
3.5 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move the Motion standing in my name on the Order Paper.
On 12th June the House agreed the third report from the Select Committee on House of Lords Offices which, among other things, recommended a significant increase in the fees payable by those bringing appeals to your
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Lordships' House. In addition, the House agreed to the imposition of a fee for bringing a petition for leave to appeal to the House.
In the discussions which took place before the recommendations were made, some concern was expressed lest the new level of fees should deter those who might otherwise wish to bring an appeal or a petition for leave to appeal here. The great majority of cases which reach your Lordships' House are brought by organisations which are unlikely to be affected by the increase. It is also true that in the case of individuals who appeal here, the great majority are legally aided. However, it is possible that an individual who does not qualify for legal aid, but whose financial resources are nevertheless not great, might wish to appeal to or to petition your Lordships' House. It is in order to provide for such an eventuality that I ask your Lordships to agree to an addition to the Standing Order, the terms of which are set out on the Order Paper. I believe that the wording sufficiently expresses its purpose and scope. The amendments to the schedule are consequential upon the decision of the House on 12th June. I commend the Motion to the House.
Moved, That the Standing Orders regulating Judicial Business be amended as follows with effect from 1st November 1995:
Standing Order XIII [Fees]
At end insert,
"If the Clerk of the Parliaments is satisfied that a litigant who has been refused legal aid would suffer financial hardship by the payment of fees to this House, he shall report the circumstances to the Appeal Committee. The Appeal Committee shall have power to waive, modify or suspend such fees, either wholly or in part, and shall report thereon to the House."
In the Schedule, at the beginning insert,
"Petition for leave to appeal"; and delete "Joint Petition (from each party thereto)" and "Final Judgment".—(The Lord Chancellor.)
Lord Lester of Herne Hill: My Lords, I very much welcome the amendments and their object which is, as I understand it, to reduce any possibility of unnecessary or unreasonable interference with access to justice in cases litigated in this House. Your Lordships may not be aware of the size of the problem. The increase in fees which your Lordships approved is truly astronomical. Without wearying the House with all the figures, perhaps I may give just three examples. The petition of appeal fee is, as I understand it, to rise from £68 to £500; the notice of appearance fee is to rise from £8 to £100 and the waiver of security for costs fee is to rise from £17 to £100. I hope that my arithmetic is correct because the noble and learned Lord the Lord Chancellor is a very distinguished mathematician as well as jurist.
I give those figures because there has been, as the noble and learned Lord indicated, widespread concern. I should like to clarify whether the language of the discretion which is being conferred on the Appeal Committee is wide enough to cover somebody who does not qualify for legal aid but who has not been refused legal aid. I assume from what has just been said by the noble and learned Lord that although the wording is couched in terms of a refusal, the discretion is wide enough to cover somebody who is ineligible for legal aid but who will suffer real financial hardship because of fees of this level.

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The other point on which I should be grateful for clarification is as follows. In view of the massive increases in fees and of the very great costs being imposed on litigants by the existing procedural rules which require, for example, 15 copies of the case to be lodged and for them to be paginated in a particularly expensive and, in my respectful submission, unnecessary way, will the noble and learned Lord and his advisers consider, with the Lords of Appeal in Ordinary and other relevant public officers, whether those costs might be looked at to see whether they could be reduced so that our supreme judicial authority, of which we are all very proud, does not inadvertently impose unnecessary barriers on access to the determination of cases?
The Lord Chancellor: My Lords, so far as concerns the first point, I take it that the wording is broad enough to cover anyone who is not entitled to legal aid and who would be refused it, for example, on financial grounds if they applied for it. I should not have thought that it would be necessary for a formal application to be made in that situation.
On the second point, I am very happy to consider, with my noble and learned friends the Lords of Appeal in Ordinary, any procedural simplifications that the noble Lord, Lord Lester of Herne Hill, has in mind. However, if one looks at the general picture to which he referred, it is important to observe that the costs in legal services associated with appeals to this House are large in comparison with the fees that are here in question. For example, the average taxed costs on bills in party and party taxation in this House in 1993 were of the order of £27,000, and in 1994 they were of the order of £33,000 when the fees charged for the facilities of the House, including of course the services of the Lords of Appeal in Ordinary (usually five in number), were about £500. What the House has decided to do is to go some distance towards making the fees for those facilities in this House somewhat more realistic.
On Question, Motion agreed to.

Criminal Injuries Compensation Bill
3.13 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMIIIEES in the Chair.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 31:
After Clause 2, insert the following new Clause—
INJURY FOR WHICH NO PROVISION IS MADE IN TARIFF
(".—(1) If an application for compensation is made in respect of an injury for which no provision is made in the Tariff, but which appears to the claims officer to be sufficiently serious to qualify
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for at least the minimum award, the claims officer shall refer that application to the chairman of the body of adjudicators for determination.
(2) The chairman of the body of adjudicators may make a recommendation to the Secretary of State as to the amount of compensation which that injury should attract if subsequently included in the Tariff.").
The noble Lord said: This is a continuing part of the series of amendments which we started last evening and will carry on through the large part of today, which seek to subject to parliamentary scrutiny the draft scheme which was so helpfully provided during the recess. We started with those elements of the scheme such as the definition of "eligibility", which were, in our view, uncontroversial, and we have proceeded through a whole series of elements of the scheme which are in our view mistaken, poorly drafted, or in other ways unsatisfactory.
The treatment of unlisted injuries, which is the subject of Amendment No. 31, is one of those which, in our view, is both poorly drafted and unsatisfactory in total. It is not as if this is a minor problem. The illegal tariff scheme which was brought in in 1994 provided 187 different specified injuries. By the time the present scheme was put forward there were already, after barely a year's experience of the old scheme, 310 specified injuries for which different amounts of compensation are payable.
It is clear that we have not reached the end of that road and that more injuries will be recognised as deserving explicit attention if the scheme is to achieve its objective of being transparent and speedy. The Minister has made that point herself on a number of occasions. The need to deal with unlisted injuries is also recognised in paragraphs 20 and 21 of the scheme; but the arrangements proposed in those paragraphs are extraordinarily complicated and not particularly satisfactory.
The scheme provides that the authority, following consultation with the panel, refers to the Secretary of State any injury for which no provision is made but which appears to be sufficiently serious to qualify for at least the minimum award, and makes a recommendation to the Secretary of State on the amount of compensation, and is involved in consultation with the panel. The paragraph makes it clear that the reference to the Secretary of State is not to refer to the circumstances of any individual application for compensation under the scheme other than the relevant medical reports.
Paragraph 21 of the scheme goes on to say that if an Application is made for an injury for which no provision is made in the tariff and the authority decides to refer the injury to the Secretary of State, an interim award may be made of up to one half of the amount of compensation which is recommended it should attract if subsequently included in the tariff, but is not recoverable if the injury is not subsequently added to the tariff.
That insistence on making additional injuries in the tariff separate from the individual case seems to us a roundabout way of dealing with what should be a simple problem. The new clause which we propose in place of

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paragraphs 20 and 21 of the scheme is simpler and more just. We are saying that the claims officer who encounters an injury which is not included in the tariff,
"shall refer that application to the chairman of the body of adjudicators for determination."
and that,
"The chairman of the body of adjudicators may make a recommendation to the secretary of state as to the amount of compensation which that injury should attract if subsequently included in the Tariff".
That is a more straightforward procedure. It does not involve any of the roundabout methods which are included in paragraph 20, and the existing flexibility in the scheme would enable an interim payment to be made without the complications which are proposed in paragraph 21.
The amendment is not intended to cause any additional expenditure. It is not intended to breach the principle of an enhanced tariff scheme which the Government are putting forward. It is merely intended to make life easier for the panel and for the Secretary of State. I beg to move.
Lord Airedale: Medical science continues apace. New discoveries are being made all the time and every new discovery requires new medical terms in which to describe the discovery. No doubt the tariff will be updated gradually to take into account all the relevant new medical terms, but one cannot expect the tariff to respond instantly to new medical terms. There is bound to be an interim before new terms get into the tariff. We do not want a situation to arise where an applicant is told, "The tariff does not so far contain an injury described in the terms in which your particular injury is described by your doctor. Therefore your application fails for this reason". We do not want that situation to arise. We want there to be an interim period, as the noble Lord, Lord McIntosh, has described, during which the tariff will no doubt be updated. But in the meantime, we want an amendment of this nature to tide over the interim period and I hope that it will be acceptable.
Baroness Blatch: It appears that there is some misunderstanding about this aspect of the Bill; that is, a person being injured criminally but for whom no category is set out in the scheme.
This amendment clearly draws heavily on paragraph 20 of the draft scheme, which makes provision for the handling of injuries which are not listed in the tariff. Under that paragraph, it would fall to the authority (the Criminal Injuries Compensation Authority) to consult the appeals panel and then make a recommendation to the Secretary of State.
This amendment would require the claims officer dealing with an application in respect of an unlisted injury to refer it to the chairman of the appeals panel for a decision. In other words, the chairman of the appeals panel would decide what was an appropriate award for that injury, without necessarily having to refer to the tariff or indeed to anything else. The chairman could then, if he so chose, make a recommendation to the Secretary of State about which tariff band that injury might be placed in. That is rather like closing the stable door after the horse has bolted.
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I am afraid this amendment is unacceptable on two counts. First, there must be, and must clearly be seen to be, complete separation between the initial decision-taking process and the appeals process. The authority, and the authority alone, must be responsible for the initial or first decision. That leaves the appeals panel free to consider appeals against the authority's decision, without having been involved in any way in that initial decision. If the appeals panel were to determine cases of unlisted injuries, it would itself be taking the first decision. To whom, then, could a dissatisfied claimant appeal? To the appeals panel? Hardly, because it would then manifestly be both judge and jury.
Secondly, it is quite wrong that the chairman of the adjudicators should decide in any particular case what an appropriate award should be for an unlisted injury. Certainly he may make a recommendation—and the draft scheme makes provision for this. But the final decision must be one for the Secretary of State and for Parliament which, under the Clause 10 amendments we are proposing later, will have the final say in all such matters. It would be quite inappropriate for anyone else to have that power.
The amendment is, I am afraid, also defective technically in that it does not allow for the possibility of the scheme being contracted out at some future date when it would fall to the staff appointed by the scheme manager and not to a claims officer—as specified in this amendment—to make the necessary referral to the chairman of the appeals panel.
I am afraid that the amendment represents a very good example of the dangers of trying to put too much of the detail of the scheme on to the face of the Bill. If this clause passed into law we should be stuck with a rigid, inflexible process that would not work in the way we would all wish and which could not be corrected other than by further primary legislation whenever a suitable vehicle could be found.
Therefore, the process allowed for under the scheme is that the authority would make a decision. If the injury was unlisted in the tariff it would present that to the appeals panel which would make a recommendation to my right honourable friend the Home Secretary. Then, if the Home Secretary wished, he would make a proposal to Parliament for Parliament to propose either a new listing or to incorporate it in a band already contained within the tariff. In the meantime, an interim payment can be paid to the applicant. As the noble Lord, Lord McIntosh, pointed out, if an overpayment were made to the applicant it would not be withdrawn and if any payment were made it would not be withdrawn if the applicant subsequently failed.
We believe that our approach is the right one. It allows for changes to the tariff to take place but it is for Parliament to decide. What I find interesting about the amendment is the fact that almost throughout the debate we have been pressed to make sure that the scheme appears on the face of the Bill or that Parliament should deal with alterations to the Bill or to the scheme. Here is a way of allowing a change to the scheme without the approval of Parliament and we believe that the approval of Parliament is paramount.
Lord McIntosh of Haringey: I started by thinking that the Minister's response was unsatisfactory because it was formalist—she was taking a view about the formal relationships between the different parts of the criminal injuries compensation process. I am afraid that as I continued to listen I realised that her answer was much worse. First, it is worse because she objects to the use of the phrase "claims officer" in the amendment—and therefore, as we propose, on the face of the Bill—on the grounds, if you please, that it could be the Government's intention to contract out the process of criminal injuries compensation. The Minister is inviting us—and we shall take up her invitation—to put down amendments at a later stage in order to make sure that the criminal injuries procedures are never contracted out. It would clearly be wrong for an integral part of the criminal justice system in this country to be in private rather than public hands. To that extent, I am grateful to her for drawing attention to what lies behind the Government's thinking in the Bill. Therefore, her comment regarding the inclusion in the Bill of a reference to "claims officer" is helpful in that it reveals what the Government are really thinking.
Of course, the scheme, which is subject to parliamentary approval, contains throughout references to claims officers. Therefore, if the scheme were to be contracted out all of those references to claims officers would have to be taken out of the scheme and new wording would have to be put in. The concession, which was made yesterday, of ensuring that there will be an affirmative resolution procedure for the whole scheme and the tariff makes it clear that any proposal for privatisation will have a huge parliamentary effect. To that extent, I suppose that we are grateful.
The second part of the Minister's answer puzzled me because she was saying that our amendment eliminated the possibility of parliamentary scrutiny of additions to the tariff. That simply is not true. The amendment states:
"The chairman of the body of adjudicators may make a recommendation to the Secretary of State as to the amount of compensation which that injury should attract if subsequently included in the Tariff".
If the Secretary of State decides to include the unlisted injury in the tariff and to set a level for that, the amendment to the tariff will come before Parliament, as provided by the amendments to Clause 10 which are to be moved later today. Therefore, it is not true to say that we are proposing that any alteration should be free from the parliamentary scrutiny to which the existing proposals are subject.
The answer was very unsatisfactory and it gives rise to the possibility of a more considered and perhaps far-ranging amendment at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 32:
After Clause 2, insert the following new Clause—
LOSS OF EARNINGS WHERE MORE THAN ONE INJURY WITHIN 2 YEAR PERIOD
(". Where—

(a) the applicant has made a previous claim or claims under the Scheme in respect of an injury or injuries sustained not more than two years before his present application;

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(b) the applicant has lost earnings or earning capacity as a consequence of his injury or injuries; and

(c) the cumulative period of lost earnings or earning capacity from that injury or those injuries exceeds any period within the Scheme which disregards lost earnings or earning capacity in calculating additional compensation—

the period within the Scheme shall itself be disregarded to the extent that the cumulative period referred to in subsection (3) above exceeds the Scheme disregard period.").
The noble Lord said: This amendment refers to a type of case which perhaps will not occur often, but I believe that the occurrence may be more frequent than is commonly recognised. It is the case in which more than one injury takes place in a two-year period. It is likely that such a situation will happen when the victim is in a vulnerable occupation. I think in particular of people in the retail trade and of sub-postmasters, who are the classic case. Unfortunately, criminal attacks on shops for the cash takings are all too common and it is all too common to find that those who work in shops or banks—although their security has improved—can consider themselves likely to be attacked more than once in their lifetime and perhaps more than once in a two-year period.
The current scheme provides that the 28-week exclusion period in which no compensation for loss of earnings is paid in effect starts again with the second attack. That really is not fair. It will not be an expensive amendment, but it will provide, as in the terms of the proposed new clause, that if a previous claim has been made not more than two years before the present application, where the applicant has lost earnings, or earning capacity exceeds any period within the scheme which disregards lost earnings or earning capacity in calculating additional compensation, then the period within the scheme shall itself be disregarded to the extent that the cumulative period exceeds the scheme disregard period.
This is not a matter of profound principle but those who are close to people in vulnerable occupations have pointed out to us the anomalies which are to be found in the draft scheme as currently proposed. I suppose that this can be taken as a probing amendment. I do not expect to receive an instant recognition of the justice of the case but merely ask the Minister to undertake to look at it and consider whether, as I believe, there is an unwitting injustice in what is proposed. I beg to move.
3.30 p.m.
Baroness Blatch: It is extremely important to bear in mind that each claim should be considered separately and should attract a tariff payment in its own right so that if somebody has been criminally injured twice in the period of two years each claim would be considered separately and a tariff awarded, if appropriate, in each case. But since each tariff payment includes an element for loss of earnings, it would be quite wrong to allow the claimant to accumulate the period of loss.
The purpose of the qualifying period is to distinguish between the more serious cases which merit special consideration and the less serious ones which can reasonably be settled on the basis of a straight tariff payment. We do not consider that two less serious

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injuries can be regarded as more serious for these purposes, bearing in mind that the victim will receive two separate tariff awards.
There is no case for allowing claimants who receive criminal injuries from separate incidents within a two year period—or any other period come to that—to add together any period for which they may have lost earnings so that if the resulting total exceeds the normal qualifying period for a single injury (that is, 28 weeks) they may be paid loss of earnings for any excess. I hope that this amendment will not be pressed.
Lord McIntosh of Haringey: I made it clear that I was not intending to press the amendment but I am, of course, disappointed by that reply. We have never claimed that there should be extra tariff payments because somebody is attacked more than once in a two year period. We are saying that those people should not lose out by having the 28 week extension extended further than would otherwise have been the case.
I have listened to the somewhat intransigent response. I shall consider whether there is anything that can be done to persuade the Government more effectively than I have so far succeeded in doing. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 33:
After Clause 2, insert the following new Clause—
LOSS OF EARNING CAPACITY
(".—(1) Where the applicant, at the time the claim is assessed, is considered by the claims officer to be likely to suffer continuing loss of earnings or earning capacity, whether or not the applicant was in work at the time of the injury or the application, the applicant shall be entitled to an additional award of compensation which award will comprise the product of a multiplicand (the annual rate of net loss at the date of assessment) and a multiplier (the number of years for which that multiplicand is deemed to be payable) or such other lump sum in respect of loss of earning capacity as the claims officer may determine.
(2) The rate of net loss of earnings or earning capacity (before any deduction in respect of social security benefits) to be taken into account in calculating any compensation payable under subsection (1) shall not exceed one and a half times the gross average industrial earnings at the date of assessment as published by the Secretary of State.").
The noble Lord said: This amendment is much more significant in terms of numbers of cases than the preceding amendment. I recognise from the outset that the proposed tariff is very much better than the 1994 tariff in that it contains provision for compensation for loss of earnings and loss of future earnings which were not included in the crude scheme introduced illegally in 1994.
However, the 28 week rule—in other words, the rule that those who make claims shall not receive any compensation for loss of earnings until after 28 weeks—presents very serious difficulties. I understand perfectly well the thinking behind the rule. It is assumed that for the first 28 weeks, the person concerned will be compensated by means of statutory sick pay. My noble and learned friend Lord Archer, in his speech yesterday on Amendment No. 25, exposed the falsity of that claim. There are many millions of people who are not eligible
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for statutory sick pay for all sorts of reasons and therefore will receive nothing for the loss of earnings in the first 28 weeks after the date of their injury.
The provision in the scheme for loss of earnings is contained in paragraph 22 of the scheme which, like so many of the paragraphs, is extremely complicated. In essence, the amendment takes the two elements which seem to make sense—that is, paragraphs 22(c) and 22(e)—and propose to put them on the face of the Bill but not to put on the face of the Bill those elements which we think are unfair. Paragraph 22(a) provides that,
"no compensation will be payable in respect of loss of earnings or earning capacity during the first 28 weeks of the applicant's incapacity for work".
In paragraph 22(b) the period is calculated to begin 28 weeks after the date of commencement of the applicant's incapacity for work. Within the same paragraph of the scheme the person is first called a victim and then called an applicant. The draftsmen must get their act together on that.
Paragraph 22(d) refers to the calculation of the multiplicand and the multiplier for the determination of the amount of compensation for loss of earnings. That again refers to Note 7. However, the issue of the calculation is not being dealt with in this amendment. I want to deal with that separately when I move Amendment No. 34, which is next on the Marshalled List.
This amendment provides that it should be established in statutory form that where the applicant is considered to be likely to suffer continuing loss of work, then the applicant is entitled to an additional award of compensation. The rate of net loss of earnings or earning capacity is to be taken into account before any deduction in respect of social security benefits is taken into account in calculating the compensation payable. We agree with the Government that it should not exceed one-and-a-half times the gross average industrial earnings at the date of assessment as published by the Secretary of State.
We have taken out of this complicated paragraph those provisions which we consider to be unfair; that is, the assumption that there is no loss of earnings until after the first 28 weeks. We have put into it those parts without altering the words which we believe to be reasonable. I hope that the amendment will commend itself to the Committee and I beg to move.
Baroness Blatch: This is another example of wishing to take one small part of the scheme and put it on the face of the Bill. I have argued long and hard about the principle of that. We believe it is important to keep the details of the scheme, subject to the affirmative resolution of both Houses, and thereby allowing a degree of flexibility should there need to be any modification whatever of a minor or major nature in future. We feel that that flexibility is very important. We are not able to accept the notion that just little pieces of the scheme can be translated from the text on to the face of the Bill because we feel that it is much better to allow for such flexibility. I hope that the amendment will not be pressed.
Lord McIntosh of Haringey: I suppose that the Minister is being quite helpful to those who were not present for the previous episodes of this soap opera. We made it clear—we have no shame in that respect at all—that we are indeed seeking to include on the face of the Bill what the Minister would, in this case, call one small part of the scheme. We have gone very carefully through the scheme looking at those elements of it, whether or not we agree with them, which appear to be enduring and unlikely to change. Let us not forget that most of those elements have not actually changed since 1964 when the scheme first came into operation. Therefore, they could be thought of as being as enduring as any element of legislation.
We are suggesting to the Committee and to Parliament that those enduring elements of the scheme should indeed be written on to the face of the Bill because we believe that legislation should be explicit rather than purely enabling. The Bill has been criticised by the Delegated Powers Scrutiny Committee for being largely an enabling Bill. Indeed, over and again in Clause 2 the Bill says that there shall be compensation in such a manner as "may be specified".
However, a concession has been made. The principle of the affirmative resolution procedure has been accepted and is to be incorporated in amendments which will be dealt with later today. But that does not absolve us from our responsibility as a serious opposition party of taking the essential elements—that is, the enduring elements—of the scheme, putting them before Parliament, and seeking to have them debated.
I am not surprised that we do not have a large presence in the Chamber for such debates; indeed, I am not surprised that a number of people are deterred from taking part in them because the issues are complex and technical. In many cases, as has become obvious, they are too complex and technical for me. However, I do not in any way apologise for having put forward one small part of the scheme and asking that Parliament should consider and approve it and, if necessary, amend it.
As to the substance of the amendment, the Minister made no specific complaints about it. Indeed, the noble Baroness could hardly do so because the wording comes entirely from paragraph 22 of the draft scheme and we were not responsible for the draftsmanship. It may be one small part of the total Bill; it is nevertheless an extremely important part. Many people coming into contact with the new scheme when it is introduced for the first time will feel it most unjust if the wording has not been amended in the way suggested. They will feel it unjust not to receive compensation for loss of earnings for the first 28 weeks after the injury if they lack any other source of income in the form of statutory sick pay or the indulgence of their employer, or, indeed, if they have no employer at all, as would be the case, for example, with the self-employed.
When the scheme comes to be promulgated and put into force on 1st April 1996, which I believe to be the intended date, I do not believe that the public at large will understand why such a severe restriction has been made in the loss of earnings provisions in the scheme
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and in the tariff. I was going to move to press my amendment, but I see that the noble Lord, Lord Carlisle, wishes to intervene.
3.45 p.m.
Lord Carlisle of Bucklow: I am much obliged. Is the noble Lord now saying that the purpose of the amendment is really the same as was intended by the noble and learned Lord, Lord Archer, yesterday, as regards doing away entirely with the restriction on payment for loss of earnings for the first 28 weeks? If that is the case, I should like to repeat to my noble friend the Minister what I said yesterday; namely, that I believe it is reasonable, purely from the point of view of practicality, to have some cut-off point. Whether or not 28 weeks is the right one is, of course, a matter for debate. However, with the volume of applications now being received, I do not believe that one can really carry on deciding whether someone has lost earnings over two weeks and then decide whether or not as a result of that there has or has not been a benefit to him because his benefits are greater than his loss of earnings. It is that sort of attempt to fine tune which has caused many of the problems taking up the time of the authority.
If that is the noble Lord's intention, I hope that one's silence will not be taken as meaning that one agrees with what is behind the suggestion. I believe that the Government are right to accept on purely pragmatic and practical grounds that people who are only out of work for a very short period should be covered by the tariff figure—if that is what we are to have—rather than go through the rather complicated process of trying to find out the individual loss of earnings in any particular case.
Further, if that is the noble Lord's intention, is he really satisfied that his own drafting achieves that aim? As I understand it, his drafting says:
"Where the applicant, at the time the claim is assessed, is considered … to be likely to suffer continuing loss".
When a claim falls to be assessed, it means not only that such a claim has to be made but also that it must go through the various processes of having inquiries made of the police and medical reports prepared. Indeed, the claim would probably come to be assessed for considerably longer than 28 weeks after the date on which the injury occurred. In fact, according to a later amendment of the noble Lord, as the person need not put in a claim until three years afterwards, the date of assessment may well be some three-and-a-half years after the injury.
However, as I understand it, if the amendment is accepted in its present form, the claims officer would have to be satisfied at that time that there was a continuing loss of earnings or of earning capacity. Therefore, the noble Lord may find that his amendment would unintentionally extend the 28-week period rather than reduce it.
Lord McIntosh of Haringey: The noble Lord made two points; indeed, his second point answered the first. It is not, and never was, our intention that there should be loss of earnings payment for someone who loses earnings for only a couple of weeks. Of course, we recognise—the wording is explicit because, after all, it is the

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Government's wording—that we are referring to the time when the claim is assessed and to a continuing loss of earnings or of earnings capacity. We are not saying that short-term loss of earnings should be covered by the scheme. I agree with the noble Lord, Lord Carlisle, that that would be a huge burden on the scheme.
Amendment No. 25, moved yesterday by my noble and learned friend Lord Archer, dealt with a slightly different point—namely, that statutory sick pay does not in fact cover loss of earnings—and suggested that there should be provision for the difference between actual income and a loss of earnings. The point that I am now making is a different one. For the continuing loss of earnings or earning capacity, whether or not the applicant was in work—again, those are the Government's words from the scheme—compensation should not count only from after the first 28 weeks. Therefore, it is not the huge extension in the scope of the loss of earnings scheme that the noble Lord, Lord Carlisle, rightly fears. It is justice for those who, after 28 weeks, at whatever time the claim is assessed, are assessed to have a continuing loss of earnings or earning capacity. This is such an important issue that I think it is necessary to take the opinion of the Committee.
Lord Windlesham: Before the noble Lord concludes his remarks and the debate comes to an end I would like to raise some related matters which arise from this amendment, but from a different angle. Paragraph 22 of the criminal injuries (tariff-based) compensation scheme deals with the crucial matter of loss of earnings. Those Members of the Committee who have taken part in the earlier stages of the debate both on this Bill and on the proceedings initiated by the noble and learned Lord, Lord Ackner, earlier will know that this has been one of the most contested matters; that is, whether or not the scheme should provide payment for future loss of earnings.
The Government—this was welcomed by the organisations in the field—had a change of heart. Initially there was to be no provision in the tariff scheme for loss of earnings, but in the enhanced scheme now before the Committee, which will be enacted as delegated legislation under the authority of this Bill, there is some provision. I think we can all agree that it is of great importance that this paragraph should be comprehensible. Yesterday I declared my interest as president of Victim Support and I repeat it now. Victim Support assisted over 11,000 single claims in the past 12 months. There are large numbers of people both giving advice and in need of advice as regards what their entitlement will be under paragraph 22 of the scheme. The paragraph states:
"where the applicant, at the time the claim is assessed, is considered by the claims officer to be likely to suffer continuing loss of earnings or earning capacity, such loss will comprise the product of a multiplicand (the annual rate of loss at the date of assessment) and a multiplier (the number of years for which that multiplicand is deemed to be payable) or, when the claims officer considers this approach is impracticable, such other lump sum in respect of loss of earning capacity as the claims officer may determine".
That is an extraordinarily complicated formulation. I have read it several times and I am not sure what it means. Victim Support has asked me to raise two questions which I shall leave with the noble Baroness because they are technical. I am sure she can ensure that
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a reply will be sent to the right quarter. The first question relates to the claims officer's responsibility for determining how long loss of earnings may be claimed for and to ask what experience claims officers will have to enable them to make such decisions correctly. It seems to me that is a fair point on which some information should be forthcoming although I do not press the noble Baroness to produce it now without notice. The second question is to ask for clarification on the type of contingencies which it is envisaged may appear relevant to the claims officers. What will constitute a contingency? Perhaps the noble Baroness will take note of those points and arrange for a reply to be sent in due course.
Baroness Blatch: I am happy to give my noble friend that assurance not only as regards the two specific questions he asked but also as regards the readability and the understandability of the scheme itself. Perhaps my noble friend remembers that yesterday one of the arguments for supporting the scheme standing outside the Bill was not only that that increased the flexibility for modification but also that we could resort to less legalistic language so that it was readily understood and we could dispense with the raft of people who are required to interpret it. I, too, take that point seriously.
Lord Windlesham: While I appreciate that reply, I think that the description that the noble Baroness has just used of legalistic language is well justified. If she can persuade her officials to look again at this provision which will be referred to over and over again in applications she will be doing a service to the Chamber and to future claimants.
Lord McIntosh of Haringey: The noble Lord, Lord Windlesham, has raised important points, not least the point of the comprehensibility of paragraph 22 of the draft scheme. For the sake of clarity of debate I want to cover that point in Amendment No. 34, which follows the amendment that we are discussing.
The part of the scheme to which the noble Lord is referring is not just complicated as regards the text that he read, but also refers to note 7 to the scheme which is even more complicated and, as we shall see, is crude and inefficient. If the complaint about legalistic language applies also to subparagraphs (c) and (e) of paragraph 22 of the scheme, which are the subparagraphs that we included in this amendment to be part of the Bill, I plead guilty of proposing to repeat legalistic language on the face of the Bill. However, we have to do the best we can. We have to deal with the work that has been done—which is often conscientious and well meaning work—which seeks to tackle the complexities of the scheme in a document which is comprehensible, and we have to try to look for those elements which are not going to change.
I believe that these elements will not change and I believe that a scheme which achieves adequate compensation with respect to loss of earnings capacity and indeed pension rights needs to be on the face of the Bill because that is one of the primary justifications which the Government have adduced for bringing

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forward this enhanced tariff scheme. It is because I think it is so important that loss of earnings payments should be spelt out and not simply be referred to as,
"in such cases as may be specified",
as Clause 2 of the Bill now states, that I believe the Committee ought to take a view on Amendment No. 33.
3.57 p.m.
On Question, Whether the said amendment (No. 33) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 152.

Division No. 1

CONTENTS

Addington, L.

Lester of Herne Hill, L.

Airedale, L.

Lockwood, B.

Allen of Abbeydale, L.

Longford, E.

Archer of Sandwell, L.

Macaulay of Bragar, L.

Ashley of Stoke, L.

McCarthy, L.

Birk, B.

McIntosh of Haringey, L.

Blackstone, B.

Mackie of Bensrie, L.

Bruce of Donington, L.

Mar and Kellie, E.

Callaghan of Cardiff, L.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carter, L.

Milner of Leeds, L.

Chorley, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Monkswell, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Desai, L.

Nelson, E.

Donaldson of Kingsbridge, L.

Nicol, B.

Donoughue, L.

Ogmore, L.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Prys-Davies, L.

Ewing of Kirkford, L.

Redesdale, L.

Richard, L.

Ezra, L.

Ritchie of Dundee, L.

Falkender, B.

Robson of Kiddington, B.

Falkland, V.

Rodgers of Quarry Bank, L.

Farrington of Ribbleton, B.

Sainsbury, L.

Fitt, L.

Sandwich, E.

Geraint, L.

Seear, B.

Gladwin of Clee, L.

Sefton of Garston, L.

Glenamara, L.

Serota, B.

Gould of Potternewton, B.

Shannon. E.

Graham of Edmonton, L. [Teller.]

Shepherd, L.

Grey, E.

Simon, V.

Harris of Greenwich, L.

Stallard, L.

Haskel, L. [Teller.]

Stoddart of Swindon, L.

Holme of Cheltenham, L.

Strabolgi, L.

Houghton of Sowerby, L.

Straffond, E.

Howie of Troon, L.

Taylor of Gryfe, L.

Hughes, L.

Thomson of Monifieth, L.

Hylton, L.

Tope, L.

Jay, L.

Turner of Camden, B.

Jay of Paddington, B.

Varley, L.

Jenkins of Putney, L.

Whaddon, L.

Judd, L.

White, B.

Kennet, L.

Williams of Elvel, L.

Kilbracken, L.

Williams of Mostyn, L.

Kirkhill, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Ampthill, L.

Abinger, L.

Astor of Hever, L.

Addison, V.

Balfour, E.

Ailsa, M.

Barber, L.

Aldington, L.

Barber of Tewkesbury, L.

Alexander of Tunis, E.

Belhaven and Slenton, L.

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Blaker, L.

Long, V.

Blatch, B.

Lucas, L.

Blyth, L.

Lucas of Chilworth, L.

Borthwick, L.

McColl of Dulwich, L.

Boyd-Carpenter, L.

McConnell, L.

Brabazon of Tara, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brain, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Bruntisfield, L.

Malmesbury, E.

Burnham, L.

Marsh, L.

Cadman, L.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Campbell of Croy, L.

Miller of Hendon, B.

Carlisle of Bucklow, L.

Milverton, L.

Carnegy of Lour, B.

Monk Bretton, L.

Carnock, L.

Monteagle of Brandon, L.

Carr of Hadley, L.

Montgomery of Alamein, V.

Chalker of Wallasey, B.

Mottistone, L.

Charteris of Amisfield, L.

Mountevans, L.

Chelmer, L.

Mowbray and Stourton, L.

Chelmsford, V.

Murton of Lindisfarne, L.

Chesham, L. [Teller.]

Napier and Ettrick, L.

Clanwilliam, E.

Newall, L.

Clark of Kempston, L.

Northesk, E.

Cochrane of Cults, L.

O'Cathain, B.

Conslantine of Stanmore, L.

Oppenheim-Barnes, B.

Courtown, E.

Orkney, E.

Cox, B.

Orr-Ewing, L.

Cranborne, V. [Lord Privy Seal.]

Palmer, L.

Cullen of Ashbourne, L.

Pearson of Rannoch, L.

Cumberlege, B.

Peel, E.

Davidson, V.

Pender, L.

Dean of Harptree, L.

Plummer of St Marylebone, L.

Derwent, L.

Prentice, L.

Digby, L.

Pym, L.

Dixon-Smith, L.

Radnor, E.

Dormer, L.

Rawlings, B.

Downshire, M.

Rennell, L.

Ellenborough, L.

Ridley, V.

Elles, B.

Rodger of Earlsferry, L.

Elliott of Marpeth, L.

Sanderson of Bowden, L.

Elton, L

Sandford, L.

Ferrers, E.

Seccombe, B.

Finsberg, L.

Selborne, E.

Flather, B.

Sharples, B.

Gainford, L.

Shaw of Northstead, L.

Shuttleworth, L.

Gainsborough, E.

Simon of Glaisdale, L.

Gisborough, L.

Skelmersdale, L.

Goschen, V.

Stodart of Leaston, L.

Gray, L.

Stokes, L.

Gray of Contin, L.

Strange, B.

Gridley, L.

Strathcarron, L.

Grimston of Westbury, L.

Strathclyde, L. [Teller.]

Hailsham of Saint Marylebone, L.

Swansea, L.

Halsbury, E.

Swinfen, L.

Hardinge of Penshurst, L.

Swinton, E.

Harmsworth, L.

Terrington, L.

Harrowby, E.

Teviot, L.

Harvington, L.

Thomas of Gwydir, L.

Hayhoe, L.

Trefgarne, L.

Holderness, L.

Trumpington, B.

Hylton-Foster, B.

Tugendhat, L.

Inchyra, L.

Ullswater, V.

Inglewood, L.

Vivian, L.

Kimball, L.

Wade of Chorlton, L.

Kintore, E.

Waterford, M.

Lauderdale, E.

Westbury, L.

Leigh, L.

Whitelaw, V.

Lindsay, E.

Wyatt of Weeford, L.

Lloyd-George of Dwyfor, E.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.6 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 34:
After Clause 2, insert the following new clause—
CALCULATION OF FUTURE FINANCIAL LOSS
(". Where the calculation of an additional amount of compensation requires a calculation of future financial loss, that calculation shall be made by reference to such tables as are published from time to time by the Government Actuary's Department for use in personal injury and fatal accident cases.").
The noble Lord said: Amendment No. 34 is the amendment that I trailed in my previous speech. However, I trailed it incorrectly. I did not read paragraph 22 of the draft scheme closely enough, and therefore I did not realise that what I was talking about was not Note 7 to the scheme but Note 5. Both are referred to in paragraph 22, but it is Note 5 that I particularly want to criticise. Although the drafters of the scheme cannot get their own names right, perhaps they are better at getting their numbers right.
Note 5, which also applies to a number of other paragraphs in the scheme, provides for the way in which a multiplier shall be calculated for the accelerated receipt of a lump sum under the provisions of the scheme.
Perhaps I may again begin in my usual conciliatory way by saying that the provisions in the scheme for accelerated receipt of a lump sum are wholly to be welcomed. In that respect, as in 'many others, the scheme which is put forward in the draft and outlined in the Bill is an enormous improvement on the previous tariff scheme. We would not find ourselves in agreement with the general principle of the scheme if that were not the case. Therefore, we start from a position of agreement with a good deal of the scheme which is now proposed.
However, the proposals in Note 5 to paragraph 22—and to other paragraphs—appear to us to be seriously defective. The proposals include two columns of figures. One relates to periods of time in five-year bands and the other is a multiplier which is sometimes in bands of three, sometimes in bands of two and eventually progresses to bands of one. That means that the multiplier which is provided for the accelerated receipt of a lump sum is hugely different according to whether one is just above or just below the 10 or 15 year band. It becomes less serious as the period continues. However, it is not a continuous process. It is not a mathematical formula which will apply to all possible circumstances. It is a quite unnecessarily crude oversimplification which will lead to considerable injustices at the margin.
Perhaps I may draw an analogy which will not endear me to those on the opposite Benches. It is rather like the council tax as opposed to the rates. A few years ago when we considered the council tax in place of the infamous poll tax we on these Benches warned the Government that there would be serious problems because the proposed bands were too wide and too crude. The Government paid attention to some extent because they added bands at both ends of the scale and made it a less wide and less crude scheme. However, we warned that there would be a huge number of appeals against the council tax because the differences were so great; and we were right. The number of appeals
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was far greater than the Government anticipated. I am not even sure that the backlog of those appeals which were initiated years ago when the council tax was first introduced has yet been cleared. I may be wrong about that; they had not been cleared six months ago.
Lord Boyd-Carpenter: Would it help the noble Lord if I pointed out that two years ago I appealed against the assessment of my house? It has not yet been taken.
Lord McIntosh of Haringey: I am grateful for confirmation from the noble Lord. He has reinforced my point that a crude number of steps is worse than a formula which does not provide for those differences at the margin.
There is no need for that, because a perfectly good method of calculation is available. The tables are published from time to time by the Government Actuary's Department. They refer to use in personal injury and fatal accident cases. There is no reason on earth that an additional amount of compensation which requires a calculation of future financial loss should not he made by reference to the official Government Actuary's table rather than in terms of Note 5 of the draft scheme.
This issue is not of profound importance to the scheme. It is not an issue on which I propose to divide the Committee. I shall not take kindly to the Minister telling me that it is another small change. We seek to be helpful and I cannot for the life of me see why the Government should not take the opportunity just for once to accept the amendment. I beg to move.
Lord Carlisle of Bucklow: Before the Minister replies, will she explain exactly what is intended? It seems to me that the noble Lord, Lord McIntosh, has a point. Paragraph 22 states:
"The multiplier will be selected by the claims officer by reference to the table at Note 5".
Does that mean that he has to take one of the five year periods as the multiplier? In other words, if someone has a future loss, and the period to the date of retirement is 13 years, is it intended that he must take the multiplier of 10, being the one below 13, or will he have the discretion to say that the period of loss is 13 years, therefore the multiplier falls between eight and 11 and is probably 10 or 9½? It is important to know what is meant by the reference that the claims officer shall select the multiplier by reference to the table. Does he have discretion to take figures within the table; or is he limited merely to the figures shown?
Lord Rodgers of Quarry Bank: Perhaps I may take this opportunity to raise a point which may appear to be oblique but could be referred to by the Minister on this amendment.
In our debate yesterday in Committee, at col. 589 of the Official Report, she stated:
"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".
In saying that, the Minister had in mind the advantages of the scheme not including everything on the face of the Bill or within a statutory instrument. The noble

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Lord, Lord Carlisle, made it clear in respect of his own understanding, and it is clearly the case from what the noble Lord, Lord McIntosh, said on this and the last amendment, that a good deal of the scheme is incomprehensible even to Members of the Committee. It remains to be seen whether the language in the scheme could be rendered in some other way. That clearly would be the wish of the Committee. However, if the scheme is to be in this form, perhaps the Minister will indicate what further explanatory information would be available to the public for them to be able to understand what Members of the Committee do not now understand.
4.15 p.m.
Baroness Blatch: Perhaps I may attempt to answer my noble friend's question. It was incredibly technical. There is flexibility. These tables are used in common law damages, as I believe my noble friend knows. There is a degree of flexibility in taking any one of those fixed points. For example, if the figure falls somewhere between five and 10, or 10 and 15, these reference points are used as fixed points about which a calculation will be arrived at.
I am advised that in calculating a lump sum which fairly represents the present value of the stream of an applicant's future net loss of earnings, or the present cost of a stream of future expenses, the courts, and hence the board, have traditionally relied on multipliers which assume a net rate of return on investment of about 4.5 per cent. after the effects of tax and inflation have been taken into account.
These multipliers were developed over many years in the context of uncertainty about the economy and about the real rate of return on a basket of equities and gilts. It was assumed that this approach would deliver an income derived from dividends and sales of shares which would broadly match the lost income. Inflation would increase dividends and share prices enabling the holdings gradually to be realised over the years to which the loss related. At the end of that time the fund would be extinguished. This has resulted in the following conventional multipliers which are set out in the paragraph referred to by the noble Lord which have been incorporated into the enhanced tariff scheme. The flexibility that my noble friend seeks is indeed there.
Perhaps I may say this to the noble Lord, Lord McIntosh. We are conscious of the deficiencies in Note 5. We shall address that issue when we make the necessary changes and clarification when we offer the scheme to Parliament for approval. There will be a comprehensive guide in everyday language. I know that that was a point of concern to many Members of the Committee.
Lord McIntosh of Haringey: That is a more helpful reply than we have had for a long time. I am grateful to the Minister. The noble Lord, Lord Carlisle, is entirely
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right. We have a table in Note 5 which appears to be completely rigid. We then have the provision in paragraph 22(d) which states:
"The multiplier will be selected by the claims officer by reference to the table at Note 5"—
—that is, not in accordance with the table at Note 5—
"taking account of any contingencies which appear relevant to the claims officer".
In other words, we are rigid. However, we do not mean to be rigid, and we shall not be rigid, but we are putting forward what appears to be rigid rules. I am satisfied for the moment with the indication from the Minister that there will be changes to this part of the scheme when the matter comes before Parliament. I hope that the clash between a rigid table and a flexible interpretation will be addressed and that there will be an attempt to express the legislation in more comprehensible language.
I still urge the Minister to consider the value of moving from such a table to actuarial evidence. I understand that the Law Commission has recommended that actuarial evidence should be admissible in courts and in particular, the Ogden tables which are the tables of the Government actuary. I commend a solution which avoids the necessity of appearing to be rigid and then tempering the wind to the shorn lamb. I propose something which is more comprehensible which can easily be referred to and which does not involve the kind of double talk which exists in the scheme at present. However, on the basis of what the Minister said, I beg leave to withdraw Amendment No. 34.
Amendment, by leave, withdrawn.
Clause 3 [Claims and awards]:
[Amendment No. 35 not moved.]
The Lord Advocate (Lord Rodger of Earlsferry)The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 36:
Page 2, leave out lines 44 and 45 and insert ("in specified circumstances").
The noble and learned Lord said: Clause 3(1)(c) enables provision to be included in the scheme about repayment of compensation for breach of conditions subject to which an award was made. However, the scheme also needs to include provision for repayment in other circumstances, such as where the applicant receives compensation from other sources in respect of the same criminal injury and where that other compensation was not taken into account when the award was made under the scheme. That would simply replicate the position under the present scheme. The amendment is intended to allow that to take place and so to prevent the applicant obtaining compensation twice over for the same injury.
As presently drafted, the provision in the Bill would not allow such recovery under the scheme and the provision accordingly needs to be amended to permit recovery in those wider circumstances. With that explanation, I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 37:
Page 3, line 3, leave out from ("made") to end of line 4 and insert ("either—

(i) three years of the date of the incident, or

(ii) three years of the eighteenth birthday of the applicant,

whichever is the later, save that the person determining the application may waive this requirement in exceptional cases.").
The noble Lord said: Again, the amendment seeks to put on the face of the Bill provisions in the scheme which at the moment are non-statutory or, as proposed, subject to subordinate legislation. There is a particularly strong reason why the time limits for applications after the date of injury should be on the face of the Bill rather than capable of alteration at relatively short notice.
The common law scheme which had existed since 1964 had a time limit of three years. In other words, a claim could be made at any time up to three years after the date of the injury. For a number of kinds of injury there was the possibility of late applications being considered and approved. The three-year time limit had survived for 30 years without alteration and without any noticeable difficulty, unless one could argue that the three-year time period was too short because a considerable number of late applications were received and authorised.
Then the 1994 illegal tariff was introduced which arbitrarily brought down the period to one year. What is now proposed is between the two: a two-year limitation period. The Government have resisted amendments to reinstate the three-year period on the grounds that some police forces destroy their records earlier than others. The fact is that over a period of 30 years, the three-year time limit has not caused any difficulties. So far as we know, it is extremely unusual for records to be destroyed within three years and it would not be a terrible hardship if the order went out to police forces that they should not destroy their records for three years, particularly for that purpose.
In the Criminal Injury Compensation Board report for 1993–94—the last year of the common law scheme—we find that there were 3,704 out-of-time applications and that 2,715 of them were allowed. In other words, even with a three-year time period, a considerable number of applications had to be considered after that period and had to be allowed. A relatively small proportion were found to be unreasonable.
One can imagine all kinds of cases in which three years is too short a time period. There is the example of a girl who was repeatedly sexually abused by her mother's boyfriend between 1976 and 1986. As a result, she gave birth. The offender was not jailed until 1993 and the victim's appeal against the time limit was, in my view, entirely properly allowed because it was only possible to establish that there had been a criminal offence at that time. In other words, that is seven years after the incident took place.
There is another example of an applicant now aged 22 who was sexually abused by his uncle between the ages of six and seven. The incidents were not reported to the police until three years ago; the director agreed to waive the time limit and an award was made.
It is not just for sexual abuse and psychological injury, although those are the cases which usually take a long time to come out. Many physical injuries do not resolve themselves until after a three-year period and no one knows whether someone will end up paraplegic, blind or permanently incapacitated in a certain way. After all, three years is still the norm for other personal injury claims, it is the normal time limit for claims as a result of road accidents, medical negligence or workplace injury. It does not seem at all unreasonable that we should go back to the time limit which applied for 30 years without real difficulty, except for appeals against three years being too short. There seems no good reason why the Government should arbitrarily impose a shorter time limit of two years. That will clearly cause more appeals and a higher proportion of appeals succeeding. It would not cause more claims or more expense, but it would cause more people to put their appeals in at a time when it is possible to foresee more clearly what the permanent results of the injury are likely to be. I beg to move.
Lord Hylton: I support the contention that a three-year period from the 18th birthday may be too short. At the moment, I am in correspondence with Ministers in Northern Ireland concerning the case of a young woman. When she was 15 or 16 she was raped by, of all people, a policeman. She suffered consequent trauma and much mental suffering which was aggravated when she had to give evidence in court in a criminal prosecution which led to the conviction and sentencing of a policeman. By some oversight, no claim for compensation for injury was made until after her 21st birthday. She was therefore out of time. In that case, I am asking for an ex gratia payment.
I suggest to the Committee that there needs to be some mechanism for allowing such cases which, for some reason, fall to be out of time but which should be allowed.
Lord McIntosh of Haringey: Perhaps, before the noble Lord, Lord Carlisle, speaks, he will allow me to express my gratitude to the noble Lord, Lord Hylton, for referring to an element of my amendment which I failed to mention. We propose that it should be three years from the date of the incident or three years from the 18th birthday, whichever is the later. That covers both the examples that I gave and the one which the noble Lord gave. It is clear that very many injuries or cases of child abuse will not become apparent until after the 18th birthday. I am grateful to the noble Lord for drawing that to the attention of the Committee.
Lord Hylton: I am grateful to the noble Lord for what he has said. However, the particular case that I mentioned did not cover the fact that the woman was out of time.
Lord Carlisle of Bucklow: While I agree with the noble Lord, Lord McIntosh, that the past year saw the greatest number of out of time applications (3,704), he will be slightly surprised to hear that this is one aspect of the Bill which I believe is an improvement on the present scheme. I agree with the proposal to reduce the time in which to make application. I believe that in

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practice it will not make all that much difference, because the vast majority of claims are made very shortly after the injury. I believe that in the normal run of cases a time limit of two years is an adequate maximum. The problem is that in making an application the further away one gets from the date of the injury the more difficult it is to investigate fairly the original incident.
It is true that most police forces retain records for three years before they are destroyed. One is not talking solely of the destruction of police records but also of the tracing of hospital records. A person who puts in a claim two years nine months after the event may not remember the exact date when the assault occurred. He may not even remember the month in which it occurred. One then starts numerous cross-correspondence with the police force—the applicant having claimed that he reported the incident at the time—to try to chase down a criminal offence about which the applicant has no clear recollection of the date of its occurrence. I believe that a great deal of time is taken up in pursuing claims that are put in shortly before the end of the three-year time limit. I believe that anything that is done to encourage people to make claims earlier is to be supported. These days there is a great deal more awareness of criminal injury compensation claims than in the past, partly because the police are encouraged to advise victims of crime of their rights. As the noble Lord, Lord Windlesham, has said, Victim Support also advises and encourages many people. I believe that a time limit of two rather than three years is perfectly defensible.
I should like to stress what the noble Lord, Lord McIntosh, has said and the example given by the noble Lord, Lord Hylton. It is essential that whatever time limit is set the scheme should have discretion to allow cases to be considered outside it. I refer to cases of sexual abuse, in particular child sex abuse.
All experience shows that in the case of children who are abused in their youth and teenage years, particularly if the abuse is committed by a member of the family, a relation or even a close family friend, there are tremendous pressures on the victims not to make it known. They do not have the courage to report what has happened to them until they are in their twenties. Often, they do not go to the police until they are married and have children of an age when they were themselves abused. They suddenly become worried whether the same member of the family, who is probably still around one generation on, will begin to abuse their own children. It is essential that there should be discretion to allow the authority to waive the time limit in cases of that kind. The noble Lord, Lord McIntosh, said that in the past year of the 3,704 out of time applications received by the board 2,715 were allowed. Almost all of them probably related to cases of child sexual abuse or sexual offences against young adult women.
Having listened to the noble Lord, Lord Hylton, one would hope that had such an application fallen under the English scheme the time limit would immediately have been waived. I do not know the whole of the facts. However, the policy that I have pursued since I have been chairman is that if there is still sufficient evidence
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readily available to allow the board to make a fair decision I will allow the application, even if it is several years out of date. I recognise that a person who has been abused in his or her teens, or at a younger age, often does not have the opportunity or determination to bring it to the notice of the authorities until his or her mid-twenties. I believe that those cases are covered. I also believe that the cases relating to those under 18 are covered.
While we are not directly affected by the same rules as the courts and look at three years from the date of the incident rather than three years from the date of majority, if the applicant is a minor, invariably in practice if an application is made by a minor within three years of reaching his or her majority, and the incident occurred before the age of 18, that application is allowed in under the scheme.
I believe that the Government are improving the scheme by reducing the general time limit from three to two years. It will encourage people to make application at a time when incidents can be more easily investigated. I support it, provided it is made clear that there is a wide discretion within that authority to deal with the cases that I have mentioned, although they may fall outside the time limit.
Lord Ackner: I refer to a point which arises from the contribution by the noble Lord, Lord Carlisle. Wide discretion is not provided in the scheme as it stands. Under paragraph 11 it is provided that a claims officer may waive this requirement in exceptional circumstances. That gives a very narrow discretion. One only has to look at the phrase "exceptional circumstances" in other legislation, for instance that dealing with suspended sentences. A suspended sentence can be given only in exceptional circumstances. One has only to look at the decided cases to see how narrow that provision is. If the claims officer considered that in all the circumstances it was just and reasonable, there would be a discretion which would cover particularly the unexceptional case of child abuse. That is a category on its own, and it is unexceptional on the basis of what the noble Lord has said. Clearly, if there is to be a discretion it must be in much wider terms than these.
With regard to reducing the period from three to two years, it is desirable to try to get any litigation on as near as possible to the event. That is generally accepted to be the position. For years and years a three-year period with a wide discretion has applied to all personal injury cases, such as road accidents, where shortness of memory is of particular importance and police records are clearly relevant. It also applies to medical negligence, which is another wide field in relation to this type of litigation, and, as pointed out by the noble Lord, Lord McIntosh, it also applies to all personal injury cases that arise out of accidents at work.
There is no move that I know of generally to reduce the period from three to two years. That being so, it is difficult to see why this field should be singled out. It has nothing to do with the question of preserving the tariff system with the advantages which have been so clearly emphasised; it is purely an administrative revision. The fact that the so-called "illegal" tariff

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provided one year, shows how arbitrary one can be in relation to tinkering with the present situation. Why one year? Why double it now? Finally, why not stay with the system which has been working satisfactorily and leave alone this particular aspect, which has a certain aura of meanness about it.
Lord Macaulay of Bragar: Perhaps I can make a practical observation to the Committee—that is, that time and again those of us who sit throughout the country on the Criminal Injuries Compensation Board, find that different police forces have different rules in regard to destroying records.
I do not wish to enter the debate as to whether the period concerned should be one, two or three years; that was dealt with by my noble friend Lord McIntosh of Haringey. But police officers come to hearings with no records and the board is asked to decide on the balance of probabilities whether an offence occurred. When we ask why no records are available, we are told that the police force has a rule to destroy them after two years and in some places after three years.
Perhaps the Government will take the opportunity in the context of the Bill to consult on this matter with the police forces throughout the United Kingdom and not just in England and Wales—the Bill tends to have an English and Welsh emphasis. It would be helpful if the Government laid down some rules as to how long records should be kept. I suspect—I use that word advisedly—that cost is behind the reasoning. If records have to be stored, that storage must be paid for. Records are being destroyed and victims may be being denied justice by the absence of those records. The board can be faced with a police officer who may not even be the officer involved in the investigation. He comes along and says, "I spoke to PC Smith about this, and he said this or that". When we ask if he has any records, he says that they were destroyed and that it is the force's policy to destroy them within a two or three-year period.
This is a real practical problem with which the board is faced, whichever authority is involved and whether a tariff scheme exists. When we look at the question of eligibility, we must look to the background of the case. When records are destroyed in the way that they are at the moment, injustice may result, not only to the individual, but also to the public purse. The board may take a decision in the wrong direction and give the applicant the benefit of doubt in the absence of records. Perhaps the Minister will take away that thought, which occurred to me as the debate was progressing this afternoon, and consult with police authorities to try to obtain uniformity throughout the United Kingdom as to when police records should be destroyed.
Lord Rodger of Earlsferry: I am sure that everyone will have found this debate useful. I stress that there is no spirit of meanness in the selection in the scheme of the period of two rather than three years. As the debate indicated, this is a practical matter.
The Committee will have benefited greatly from hearing my noble friend Lord Carlisle and the noble Lord, Lord Macaulay of Bragar, with their experience of how the scheme works in practice and how the delay in bringing claims affects the ability of the board to
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determine them. When a change was made from three years to one year in the scheme which was found to be unlawful, that change was not made in a spirit of meanness on the part of the Government; it was made at the request of the board. The board had found that the practical difficulties of the kind ventilated in Committee today, made a shorter period of one year preferable. There are other points of view, and other factors point in other directions, as other Members of the Committee pointed out. For that reason, in bringing forward the draft scheme for the consideration of the Committee, the Government put in two years. That seemed to act as a compromise between the two views.
This is not something that should be set in stone and we do not feel that it is right to put the matter on the face of the Bill. If a change were to occur in the practice of keeping police records, it may be that a change in the period would be appropriate. In other words, it is a practical matter. However, for the reasons indicated, we believe that it is a good idea for people to put in their claims as early as possible. In that way they are more likely to be satisfactorily investigated and to be determined quickly; and people will receive the compensation to which they are due more quickly.
For those reasons it is a good idea to have a time limit of two years, always subject to the provision for discretion. In that regard my understanding is that the words, "in exceptional cases", to which the noble and learned Lord, Lord Ackner, referred, are in the current 1990 scheme and are therefore the words exercised by my noble friend.
Lord Carlisle of Bucklow: Does my noble and learned friend agree that while it is true that they are the words that are in the existing scheme, one always feels that one is stretching them far beyond their exact meaning? I am bound to say that the words suggested by the noble and learned Lord, Lord Ackner, would fit more easily into the way in which the scheme is run in practice.
Lord Rodger of Earlsferry: I was simply about to observe that, nonetheless, I note what is said and understand the points made by the noble and learned Lord, Lord Ackner. We will be happy to look at the words and see whether they are the words which would be most apt to provide the kind of discretion which in practice is exercised by the board. We all agree that the board should exercise its discretion to deal with the circumstances indicated to the Committee by my noble friend Lord Carlisle. For those reasons, we believe that the matter is best dealt with in the manner indicated in the scheme, with perhaps some adjustment to the precise wording.
Lord McIntosh of Haringey: I am afraid that this is another example of the Government saying, "The scheme must be rigid, but we do not really mean it". That is what is implied by the discussion in relation to the phrase, "in exceptional cases".
The noble Lord, Lord Carlisle, whose experience and judgment we take extremely seriously, admitted almost in so many words that he did not care for the words, "in exceptional cases", which occur in the existing scheme,

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and that the board "stretch" them. I do not know whether he used that actual word, but that is what he meant.
I do not like starting a new scheme with what appears to be a rigid system—a two-year time limit—and then saying, "We do not mean it because, though the scheme says that late applications will be received in exceptional circumstances, we all know that they will be dealt with compassionately and leniently". That is not a very good way to start a scheme, whether or not it is a good way to write legislation, and this will be subordinate legislation.
I am almost persuaded—but not quite—that this is largely a practical issue. Of course it is a practical issue to the extent that there are always people who will butt up against the time limit. But they have no specified incentive to do that. If an injury has been sustained, the incentive will be for the claim to be put in as early as possible so that the money can be obtained as early as possible. It will only be in exceptional circumstances anyway that, knowing that there is a two or three-year limit, people will put in their claims at the end of one year and 11 months or two years and 11 months respectively.
The fact that even with a three-year limit a very large number of claims were made and nearly as large a number of claims were allowed would tend to indicate that the time limit itself is not a desirable thing. If there is to be a time limit, surely the argument must be in favour of it, where one is dealing with a subset of personal injury, being the same as for other personal injury claims. As the noble and learned Lord, Lord Ackner, confirmed, and as I said originally, claims for compensation for road accidents, for medical negligence and for injuries at work are all still on the basis of a three-year time limit. No one has suggested either that they should be changed or that there is any particular difficulty—for example, in terms of police records—in sticking to the existing rule. My noble friend Lord Macaulay had a valid point when he said that it would be worth suggesting to police forces that they should keep records for three years. I was disappointed that the noble and learned Lord did not take up that point in his reply. I gladly give way to him.
Lord Rodger of Earlsferry: I am sorry. I forgot to say that I shall of course draw the attention of the departments concerned to that matter. The point is well taken.
Lord McIntosh of Haringey: I am grateful. Of course it is to some extent an administrative matter. But anyone who has been concerned with claims of this kind and with Victim Support will agree that a substantial number of people take the rules literally as laid down and think that if they have missed the time limit there is no possibility of making a claim. If three years has worked successfully for a period of 30 years, if three years as a time limit is still applicable for the very much larger number of personal injury claims which are not criminal injury compensation claims, surely the balance of the argument must be in favour of there being a three-year period.
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With deep respect to the noble Lord, Lord Carlisle, what I think he is making is administrative judgments rather than seeking to have a scheme which is as transparent and as apparently fair to as wide a number of people as possible. I am not convinced either by his arguments or by those of the noble and learned Lord the Lord Advocate. I wish to seek the opinion of the Committee on Amendment No. 37.
4.53 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 143.

Division No. 2

CONTENTS

Ackner, L.

Kintore, E.

Addington, L.

Kirkhill, L.

Archer of Sandwell, L.

Lawrence, L.

Avebury, L.

Lockwood, B.

Berkeley, L.

Longford, E.

Birk, B.

Lovell-Davis, L.

Blackstone, B.

Macaulay of Bragar, L.

Brooks of Tremorfa, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

Mackie of Benshie, L.

Callaghan of Cardiff, L.

Mar and Kellie, E.

Carmichael of Kelvingrove, L.

Marsh, L.

Carter, L.

Mason of Barnsley, L.

Chichester, Bp.

Milner of Leeds, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Dean of Beswick, L.

Monkswell, L.

Donaldson of Kingsbridge, L.

Morris of Castle Morris, L.

Donoughue, L.

Nicol, B.

Dormand of Easington, L.

Ogmore, L.

Dubs, L.

Peston, L.

Eatwell, L.

Prys-Davies, L.

Ewing of Kirkford, L.

Richard, L.

Falkender, B.

Ripon, Bp.

Falkland, V.

Ritchie of Dundee, L.

Farrington of Ribbleton, B.

Rodgers of Quarry Bank, L.

Geraint, L.

Russell, E.

Gladwin of Clee, L.

St. John of Bletso, L.

Glenamara, L.

Seear, B.

Gould of Potternewton, B. [Teller.]

Sefton of Garston, L.

Serota, B.

Graham of Edmonton, L. [Teller]

Shepherd, L.

Gregson, L.

Simon of Glaisdale, L.

Grey, E.

Stedman, B.

Halsbury, E

Stoddart of Swindon, L.

Haskel, L.

Strabolgi, L.

Hertford, M.

Strafford, E.

Holme of Cheltenham, L.

Taylor of Blackburn, L.

Howie of Troon, L.

Taylor of Gryfe, L.

Hughes, L.

Tope, L.

Hylton, L.

Tordoff, L.

Hylton-Foster, B.

Turner of Camden, B.

Inchyra, L.

Varley, L.

Jay, L.

Wallace of Coslany, L.

Jay of Paddington, B.

Whaddon, L.

Jeger, B.

White, B.

Jenkins of Hillhead, L.

Williams of Elvel, L.

Judd, L.

Williams of Mostyn, L.

Kilbracken, L.

Winchilsea and Nottingham, E

On Question, amendments agreed to.

NOT-CONTENTS

Aberdare, L.

Allenby of Megiddo, V.

Abinger, L.

Alport, L.

Addison, V.

Ampthill, L.

Aldington, L.

Arran, E

Astor of Hever, L.

Lauderdale, E.

Balfour, E.

Layton, L.

Barber, L.

Lindsay, E.

Belhaven and Stenton, L.

Lindsey and Abingdon, E.

Blaker, L.

Long, V.

Blatch, B.

Lucas, L.

Boardman, L.

Lucas of Chilworth, L.

Borthwick, L.

McColl of Dulwich, L.

Boyd-Carpenter, L.

McConnell, L.

Brabazon of Tara, L.

MacFarlane of Bearsden, L.

Braine of Wheatley, L.

Mackay of Ardbrecknish, L.

Brougham and Vaux, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Burnham, L.

Cadman, L.

Macleod of Borve, B.

Caithness, E.

Malmesbury, E

Campbell of Alloway, L.

Marlesford, L.

Campbell of Croy, L.

Merrivale, L.

Carlisle of Bucklow, L.

Mersey, V.

Carnegy of Lour, B.

Miller of Hendon, B.

Carnock, L.

Milverton, L.

Carr of Hadley, L.

Monk Bretton, L.

Canington, L.

Monteagle of Brandon, L.

Chalker of Wallasey, B.

Montgomery of Alamein, V.

Charteris of Amisfield, L.

Mottistone, L.

Chelmer, L.

Mountevans, L.

Chelmsford, V.

Mowbray and Stourton, L.

Chesham, L. [Teller.]

Munster, E.

Clanwilliam, E.

Murton of Lindisfarne, L.

Clark of Kempston, L.

Newall, L.

Cochrane of Cults, L.

Northesk, E.

Colnbrook, L.

O'Cathain, B.

Courtown, E.

Onslow, E.

Cranborne, V. [Lord Privy Seal.]

Oppenheim-Barnes, B.

Davidson, V.

Orkney, E.

Dean of Harptree, L.

Orr-Ewing, L.

Dixon-Smith, L.

Pearson of Rannoch, L.

Dormer, L.

Pender, L.

Downshire, M.

Plummer of St Marylebone, L.

Dundonald, E.

Prentice, L.

Ellenborough, L.

Prior, L.

Elles, B.

Radnor, E.

Elliott of Morpeth, L.

Rawlings, B.

Elton, L.

Renton, L.

Faithfull, B.

Rodger of Earlsferry, L.

Fanshawe of Richmond, L.

Sanderson of Bowden, L.

Finsberg, L.

Seccombe, B.

Flather, B.

Selborne, E

Fraser of Carmyllie, L.

Sharpies, B.

Gainsborough, E

Shaw of Northstead, L.

Gardner of Parkes, B.

Skelmersdale, L.

Gisborough, L.

Stodart of Leaston, L.

Goschen, V.

Strange, B.

Gray, L.

Strathcarron, L

Gray of Contin, L.

Strathclyde, L. [Teller.]

Gridley, L.

Strathcona and Mount Royal, L.

Grimston of Westbury, L.

Swansea, L.

Hardinge of Penshurst, L.

Swinfen, L.

Harmar-Nicholls, L.

Tebbit, L.

Harmsworth, L.

Teviot, L.

Harrowby, E.

Thomas of Gwydir, L.

Harvington, L.

Trefgarne, L.

Hayhoe, L.

Trumpington, B.

Hemphill, L.

Tugendhat, L.

Henley, L.

Ullswater, V.

Holderness, L.

Vivian, L.

HolmPatrick, L.

Whitelaw, V.

Inglewood, L.

Wynford, L.

Johnston of Rockport, L.

Young, B.

5.2 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 38:
Page 3, line 5, at end insert—
("(1A) Where injury is sustained accidentally by a person who is engaged in any of the activities set out in subsection (1B), compensation will not be payable unless the person injured was, at the time he sustained injury, taking an exceptional risk which was justified in all the circumstances.
(1B) The activities are—

(a) the apprehension or attempted apprehension of an offender or suspected offender, the prevention or attempted prevention of an offence, or the giving of help to any constable who is engaged in any such activity; or

(b) any activity other than firefighting directed to containing, limiting or remedying the consequence of a crime.").

The noble and learned Lord said: This is another example of what is in form another amendment to the Bill and we would like to see it included in the Bill. But, realistically, we are seeking an amendment to the scheme. Perhaps I may make a suggestion to the noble and learned Lord when he replies. Both of us have been over the arguments many times and perhaps we can confine ourselves to the merits of what is being proposed.
Paragraph 10 of the scheme excludes from compensation people engaged in certain kinds of law enforcement or engaging in,
"any other activity directed to containing, limiting or remedying the consequences of a crime"
unless they are taking an exceptional risk. The word "exceptional" rears its head again. As the noble and learned Lord, Lord Ackner, pointed out in the last debate, the courts and the tribunals will feel that they have to give some effect to a word which Parliament has seen fit to include in the Bill. So this provision is going to be a very real limit on the number of people who will be able to claim under the Bill.
Pausing there for a moment, those exceptions are surprising. First, there is no obvious reason why a person who is present at the scene of a fight, simply from idle curiosity, and who is injured, should be compensated while someone who is public spiritedly trying to restore order or protect someone should be denied compensation. The reasons for that distinction are not self-evident. If there is reasoning behind it, no doubt the noble and learned Lord will tell us.
Secondly, it seems a curious way of encouraging people to co-operate in law enforcement and rescue activities. In this world virtue is not always rewarded, but it is rather strange to turn that unhappy circumstance into a policy. We are puzzled at the whole purpose of this group of exclusions. It may then be asked why in this amendment we are seeking to write that principle into the Bill. As I am sure the noble and learned Lord has divined, for this purpose we are concerned with remedying a much more limited but perhaps more glaring area of injustice. It is found in the words of our amendment, "other than firefighting".
As at present drafted, the scheme excludes any firefighter injured while seeking to limit or remedy the consequences of arson unless what he was doing was taking an exceptional risk. I shall come to that in a moment. It seems a very mean way to reward firefighters for the risks we require them to take. As I said, they are covered if they are injured while taking an exceptional risk, which is held ex post facto to have been justified. We know that it is easy, with the benefit of quiet contemplation, to pass judgment on an action which was taken in the heat of the moment, and perhaps quite literally so.
For a firefighter, what is an exceptional risk? They are taking grave risks all the time; that is what we ask them to do. I hope that when the noble and learned Lord replies he will tell us, first, the reason for the exclusions in general and, secondly, tell us whether in any event the Government will deem it possible to show an element of generosity to those whose work every day includes risks which would be exceptional for most of us. I beg to move.
Lord Ackner: I may be wrong but, as I understand the position, under the 1964 scheme firefighters injured in the course of dealing with cases of arson have been compensated hitherto. So they are being removed from the scheme. That certainly needs to be justified. The concept of an exceptional risk is very difficult to define. There was a case which perhaps the noble and learned Lord will deal with on the basis of the scheme as proposed. A Mr. Newland fell down a staircase while fighting an arson fire in 1986. He sustained an elbow injury which became chronic and the permanent disability prevented his doing any kind of heavy work. He received £63,500 for loss of earnings, loss of pension and pain and suffering. As I see it, under the exceptional risk rule he might well receive nothing.
The unfairness of certain features of the scheme is an inherent part of the tariff. However, this is not an inherent part of the tariff; it is excluding people from being eligible. Since in the past they have been deemed appropriate subject matters for compensation and have been compensated on a generous scale, I believe that there is a very heavy onus on the Government to justify the exclusion they are proposing. I accordingly support the amendment.
Lord Simon of Glaisdale: I find myself in a position of embarrassment on this amendment because I feel impelled to take up a point which I had hoped to be able to postpone until Third Reading. I confess that I liked neither the original scheme, the 1964 scheme, nor the tariff scheme as it originally stood—and nor, for that matter, the amended tariff scheme.
It seemed to me quite anomalous to single out victims of violent crime for exceptional social support. Let us take the example of someone who falls down and fractures his wrist as a result of slipping off a kerb. He is relegated to the normal—exiguous, it is true—social support under the social security scheme, but if he falls and fractures his wrist as a result of a violent crime he qualifies for compensation under this scheme. There seems to be no reason why that additional social support
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should accrue. The only possible argument is that the state—the public, society—has assumed the responsibility of preventing crime and if someone suffers as a result of crime, he should then be compensated. But we do not carry that far enough if it is true because we do not compensate victims of a crime which causes financial loss or property loss, such as larceny or burglary.
Not only is there that external anomaly, but the tariff scheme itself is a mass of anomalies. The noble and learned Lord who moved the amendment referred to some of them, but there are others. If a young tearaway steals a car and, uninsured, runs into, injures and fractures the wrist of a perfectly innocent bystander, under the scheme there is no compensation for that bystander; but if someone tries to prevent the tearaway getting away and is deliberately run down, there is compensation. That seems quite anomalous when the victim suffers the same injury.
But the matter does not stop there because, as the noble and learned Lord and my noble and learned friend pointed out, there is now an additional complication of exceptional risk. I venture to think that people should be prepared to take a risk, even an exceptional risk, for the prevention of crime. I agree with my noble and learned friend that it is extremely difficult to draw a line between taking a risk and taking an exceptional risk. The risk should be taken although any intervention to prevent crime is liable to result in injury.
Therefore, my attitude throughout the Bill has been, on the whole, to vote against anything that might increase expenditure. I confess that I was not entirely consistent in supporting the previous amendment, which seemed to me to have overwhelming arguments in its favour. In the end, however, we have to make up our minds whether we are going to spend money: whether under the original scheme which has now gone by the board, under the original tariff scheme or under the tariff scheme as it has been amended to the satisfaction of the noble Lord, Lord McIntosh. We have to ask whether we are justified in spending that money on an exceptional social support. Are we justified in doing that at the moment when we are overspending by between £30 billion and £50 billion a year, thus incurring a debt which future generations will have to repay? Are we justified in such generosity?
I know that what I have said will be anathema to both the noble and learned Lord who is to reply and, I fear, to the noble Lord, Lord McIntosh. I am right because I note that the noble Lord is nodding his head. I was right that he disapproves. I am afraid that even someone with whom I normally find myself in agreement will disapprove also. Nevertheless, I think that it is at some stage incumbent on us to ask why we are incurring this new addition to debt through this exceptional and anomalous form of social support.
I have other reasons for objecting to the original scheme on constitutional grounds—or rather to its supersession on constitutional grounds—but I shall return to them on Third Reading. The amendment has led me to stand up to say why I cannot support it and although it is attractively phrased and although the noble and learned Lord was right to point to the grossly

703
anomalous provision which he is seeking to mitigate, the amendment would add to the expenditure which I think that we are quite unjustified in incurring at the moment.
5.15 p.m.
Lord Rodger of Earlsferry: Perhaps I may deal first with the point made by the noble and learned Lord, Lord Simon. I hope that the noble and learned Lord will not think me discourteous if I say that it was so fundamental that it would have been more appropriate to raise on Second Reading rather than in this Committee stage. The noble and learned Lord raised a point which, as I know he is aware, has been discussed in academic circles and by various commentators over the years—
Lord Simon of Glaisdale: I hope that the noble and learned Lord will forgive me for intervening, but when he refers to "academic circles" is he entirely correct? I was repeating the arguments which were advanced originally by Professor Atiyah in 1964.
Lord Rodger of Earlsferry: I was indeed referring to Professor Atiyah. I am sure that he would be considered to be part of "academic circles". He has discussed the matter and various logical points have been made, but the fact remains that for over 30 years governments of both parties have considered that a scheme for criminal injuries compensation was something that should be maintained and people have benefited from it. In this Bill we intend to put it on a new footing by way of a tariff scheme. Of course, points have been made against that, such as those advanced by the noble and learned Lord, but I hope that he will forgive me if I deal simply with the matters raised by the amendment.
The thinking behind this provision, which of course is not a provision with the exception of the matter relating to fire fighters which would be amended by the amendment, is that there are people such as police officers, fire fighters and other members of the emergency services whose jobs necessarily involve taking some risks in the context of apprehending people or in containing crime. They are paid and their conditions of employment are based on the fact that such risks are involved. Nonetheless, where they have taken exceptional risk, and have taken themselves outside what would be the normal aspects of their job, it seems right that they should be entitled to criminal injuries compensation, but not otherwise.
The noble and learned Lord, Lord Ackner, rightly draws attention to the fact that that is changing the position of fire fighters because under the present scheme in the kind of case that the noble and learned Lord described the fire fighter would receive compensation, whereas I am happy to concede that under this kind of scheme it is likely that he would not receive it.
However worthy may be the profession of fire fighters, they are not more worthy than other members of the emergency services such as police officers and ambulance officers. If one supposes that a police officer and a fire fighter are both called out to the same fire caused by arson and are both accidentally injured by
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stumbling on the way to the fire, or whatever it may be, the amendment would maintain what I would submit is an untenable anomaly whereby the fire fighter could claim for the injury which he had sustained but the police officer could not unless the activity had involved exceptional risk. There would be a similar contrast between fire fighters and ambulance officers. That is not an acceptable distinction. It is right that all should be on the same basis.
It is for that reason that we would resist the amendment which is directed towards fire fighters, and say that so long as the idea of exceptional risk applies—for the reasons I have given I believe it is appropriate—fire fighters should be treated in the same way as others. As the guide to the existing 1994 scheme (the one declared unlawful) made clear, in the case of members of the public who "had a go" and were injured, the approach taken would be different from that taken towards those who have been trained, such as police officers, and it would be more generous. That is the thinking behind what is in the scheme, which I believe is correct. It is also correct that fire fighters should be put on a par with others.
Lord Archer of Sandwell: Perhaps I may say a word first in reply to the noble and learned Lord, Lord Simon. His argument, understandably, is that it is always invidious to single out a particular group of people for support. He explained that his difficulty extends to making provision for any victims of crime as against those who suffer injury in other ways. As he said, he and I frequently find ourselves shoulder to shoulder. I have the misfortune on this occasion to follow his premises but to draw a different conclusion.
I confess that I should prefer to see support for all those in need. I should like to see the criterion of support being not the occasion of the injury but the need. But he and I, I fear, are bound by the parameters of the Bill, and it may be that that is a debate which we will have to have on some future occasion.
I respectfully agree with the noble and learned Lord that exclusions from the Bill are not to be encouraged, for the very reason that he gave: on the whole, one should treat all alike. I thought at first that he was objecting to our singling out specifically fire fighters for special treatment. I will, if I may, return to that in a moment.
The noble and learned Lord, the Lord Advocate, in his reply said, "Well, some people are paid to take risks. If they join a particular profession, they agree to take those risks". Upon that, I would make two comments. First, from my reading, the exclusion in the Bill goes much wider than that. It denies compensation to the helpful passer-by whom we all wish to help. The noble and learned Lord said: "Well, we would hope that the claims officers would take a liberal view of these matters". If it is intended to assist helpful passers-by, would it not be better if we made it clear rather than made it as difficult as possible for those who want to help them'?
My second comment is that it would be equally persuasive to say that those who by way of a profession regularly take risks for the public benefit should be more

705
generously rather than less generously treated. It is a little mean to ask all the kinds of people to whom the noble and learned Lord referred—policemen, firemen, ambulance drivers—to do what is required and say, "Well, we do need them, and our everyday lives require that they should be constantly taking risks, but they are paid for it. Let's forget about them". I should have drawn the converse conclusion.
It is more difficult, I agree, to argue that firemen should be singled out. If firemen, why not ambulance drivers? Why not policemen? That I agree is a fairly difficult point to answer. In fact, if I may say so, I should be surprised if the Government were particularly endeared to fire fighters as a class since it was their trade union which initiated the litigation which led to the 1994 scheme being declared to be unlawful.
The noble and learned Lord, Lord Ackner, if he will permit me to say so, provides an answer to the objection. The fire fighters have it already. What the Bill is doing is to take it away. If a justification were required, I should have thought that that would serve as a justification. However, the noble and learned Lord has put an idea into my head. Perhaps we are asking for too little, and asking for too little is always a mistake. My noble friend Lord McIntosh and I might like to consider this further, and perhaps even have discussions with the Government about it, and then consider, if necessary, what further remains to be done on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 to 41 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 42:
Page 3, line 20, leave out from ("appropriate") to end of line 22.
The noble and learned Lord said: I have hardly recovered my breath. It may be for the convenience of the Committee if, with this amendment, we discuss Amendments Nos. 43, 44, 54 and 55. I say at once that we have put down these amendments in the interrogative mood. Amendment No. 42 relates to claims officers (the officials who are to determine claims under the scheme). Clause 3 (5)(b) provides that a claims officer:
"shall not be regarded as having been appointed to exercise functions of the Secretary of State or"—
No, I think it should be "nor":
"act on his behalf".
The reason I made that note was that I thought, grammatically, the word should perhaps be "nor". If it is going to be retained, that is something which should be drawn to the attention of the draftsman.
Our problem is that we wondered why those words had been included. If the paragraph had referred to "making decisions", then we might have felt more at peace, although I suspect we should still not have been fully clear as to what was intended, because when claims officers are making decisions they are acting judicially, as I understand it, and it would be right in some way to mark their independence. But the Bill refers to "exercising functions". Presumably, that is intended to include administrative functions. Why, we
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ask rhetorically, does the Bill make such a fuss about those functions not being taken on behalf of the Secretary of State?
One explanation that crossed our minds was whether it was all intended to exclude the investigations by the Parliamentary Commissioner—the ombudsman—and, if so, why? What do the Government believe they have to conceal? However, that does not appear in Schedule 2 to the Parliamentary Commissioner Act 1967. None of the proceedings of those who administer the criminal injuries compensation scheme appear there, unless I have overlooked a subsequent amendment. If that is right, it would not be an authority to which the 1967 Act applies and therefore there would be no need specifically to exclude claims officers. Is that the reason? The answer appears to be no.
Moreover, in Amendment No. 60 the Government are specifically bringing certain functions under the Bill within the jurisdiction of the Parliamentary Commissioner. And what functions? Among others are the administrative functions of a claims officer. The amendment seeks to provide that for the purposes of the Parliamentary Commissioner Act 1967 the functions of a claims officer,
"shall be taken to be administrative functions of a government department to which this Act applies".
That refers to the 1967 Act. Therefore, in Clause 3 the Government are saying that a claims officer is not to be taken as exercising functions on behalf of the Secretary of State. In Amendment No. 60 they are saying that his function shall be taken to be a function of a government department within the 1967 Act. Perhaps it is nothing to do with the Parliamentary Commissioner but it is all very puzzling. It was in that spirit of inquiry that we set down Amendment No. 42.
Amendment No. 43 also relates to claims officers. Subsection (6) declares that:
"No decision taken by a claims officer shall be regarded as having been taken by, or on behalf of, the Secretary of State".
As I said a moment ago, it is less mystifying since their decisions will be judicial, but precisely what is intended to be excluded by those words?
Amendment No. 44 relates to the scheme manager. Subsection (7) makes the same provision about him. I understand that his functions are not intended to be judicial but wholly administrative. In fact, a flash of illumination crossed my mind earlier today when the Minister said that the whole business about a scheme manager was to do with privatising the whole business of criminal injuries. If that is so, I should prefer to lay it aside for the moment because it is an evil that we can confront if ever it arises. At the moment, scheme managers are in, too, and they are not acting on behalf of the Secretary of State.
Amendment No. 54 relates to adjudicators, who are officials who will be appointed to hear appeals from claims officers. Clause 5 (4)(b) provides that they,
"shall not be regarded as having been appointed to exercise functions of the Secretary of State".
They will fall within Amendment No. 60. Amendment No. 55 relates to a similar provision about the decisions of adjudicators, who one would certainly have thought would be acting judicially.
We are puzzled and we are moving these amendments more out of curiosity than for any other reason. But when we are told the purpose of the provisions we will seek to assess their merits. At this stage of the debate we are simply seeking enlightenment. I beg to move.
5.30 p.m.
Lord Rodger of Earlsferry: Perhaps I may first deal with the matter relating to the ombudsman. The noble and learned Lord drew attention to the provisions of Amendment No. 60, which will insert a new clause. That is designed specifically to bring these various functions within the scope of the Parliamentary Commissioner. That was done in order to avoid the kind of suspicion that the noble and learned Lord put forward; that the provisions here might somehow or another be directed in order to keep these matters out of the purview of the Parliamentary Commissioner. That is not the intention. Indeed, it is the intention that the Parliamentary Commissioner should have jurisdiction in respect of such matters. Of course, his jurisdiction will not extend to individual cases but to matters of maladministration. That is the general background.
I turn to the detail of the clause. I believe that when the noble and learned Lord has time to look at the wording again he will find that the grammar is correct and that it should read "or" and not "nor". Perhaps he might look at that at his leisure. As regards the justification of the provision, it is designed to keep an arm's length distance between this body and the Secretary of State in much the same way as in practice has existed with the board hitherto. It is in order to make that clear—that the body is not operating in any sense on behalf of the Secretary of State—that this particular language has been chosen. Of course, it is to make that clear that the new clause is worded in this way.
Members of the Committee will readily appreciate—and the noble and learned Lord took no difficulty in being persuaded of it—that it would be quite wrong for the functions of a claims officer in deciding cases or for a member of the adjudicators' body to in any sense be acting on behalf of the Secretary of State. That has never been the position and it would be wholly undesirable. If it were ever suggested that somehow or other decisions were final decisions taken on behalf of the Secretary of State and therefore his decisions the noble and learned Lord would have been the first to object.
The intention is to make clear that all the functions of this body—which include, in effect, functions other than the matter of decisions, which the noble and learned Lord has pointed out—are not to be regarded as functions taken on behalf of the Secretary of State. The decisions are not that; rather they are of this separate body. We believe that that is correct. The provision has been worded in this way in order to strengthen and to make clear in detail on the face of the Bill that this is the structure that has been designed. That is the reasoning behind the provision and I hope that with that explanation the noble and learned Lord will feel relatively content.
Earl Russell: I found the noble and learned Lord's reply encouraging as far as it went. However, I wish to clarify one small point. If somebody in this position
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were sued for something relative to the discharge of his official duties would the wording in the Bill have any effect on whether his costs would be met from public funds?
Lord Rodger of Earlsferry: As always, the noble Earl raises an acute point. Rather than give him an off-the-cuff answer which might turn out to be incorrect, perhaps he will permit me to write to him on that matter.
Lord Archer of Sandwell: The noble and learned Lord has made an old man very happy. Our suspicions about the parliamentary commissioner were unworthy.
I am not sure that the remainder of what the noble and learned Lord said has set my doubts wholly at rest. I acquit the Government of any deliberate attempt to have a hidden agenda. But while the noble and learned Lord was speaking I confess I was asking myself what situation would be excluded by those words. Are they intended merely to be declaratory? Is it merely telling the world that the claims officers and others are at arm's length from the Secretary of State? One does not usually find purely declaratory words in a statute. What will be excluded?
I confess that my mind was working along the same lines as that of the noble Earl, Lord Russell. I wondered whether, if something were done administratively by some of the people concerned, it might mean that the Government would say that the Treasury was not going to pay the damages or the costs. I too shall be very interested to hear the answer given by the noble and learned Lord.
For the moment, I am content to leave the matter there. If the reply is less than satisfactory, we may return to the matter on Report. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
Clause 3, as amended, agreed to.
[Amendment No. 45 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 46:
Before Clause 4 insert the following new Clause—

REVIEWS
(".— (1)Where a decision has been made by a person appointed by a Scheme manager under section 3(4)(a) or by a claims officer appointed under section 3(4)(b), an applicant may apply for a review of that decision unless—

(a) the decision was itself made on a review under this section or

(b) the decision was made pursuant to a direction given on appeal under section 5 below.

(2) Any such review shall be conducted by a claims officer or other person more senior than the claims officer or other person who made the decision.
(3) The Scheme shall include provision as to time limits and methods of application for a review and as to notification to the applicant of the outcome of the review and of the reasons for the decision.
(4) In particular, an applicant may apply for a review of the following decisions made by a claims officer—

(a) not to waive any time limits in the Scheme;

709

(b) to refuse or withhold an award under the Scheme (including such decision made on reconsideration of an award);

(c) to make an award under this Scheme including—

(i) a decision to make a reduced award, whether or not on reconsideration of an award;

(ii) a decision to place a particular injury under a particular description within the Tariff;

(iii) a decision to place a particular injury at a particular Tariff level;

(iv) a decision as to the amount payable by way of an additional amount for loss of earnings, special expenses or fatal injury;

(d) not to re-open a case under the Scheme; or

(e) to seek repayment of an award under the Scheme.")

The noble and learned Lord said: I say at the outset that what I propose to say in relation to this amendment applies in its entirety and rather more forcefully to Amendment No. 48. I understand that it may be for the convenience of the Committee for the two debates to remain separate but I can spare the Committee a further speech on Amendment No. 48.
Yesterday the Committee debated which matters should be included in the Bill and which could properly be left to the scheme. Indeed, some of our debates today have touched on the same theme. At this stage I should declare an interest. The Council on Tribunals, which I have the privilege to chair, is concerned about the provisions for appeal and review.
The argument applies with much greater force to the provisions for appeal rather than those for review. However, both provisions are part of the judicial process. The Franks Committee, as long ago as 1957, declared at paragraph 40:
"We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration".
I do not believe today that anyone would seek to challenge that classification. It is our view that provisions relating to the judiciary and the judicial process should be in the body of the Bill and should not be left to the discretion of the Executive, whether or not there is a measure of parliamentary control over subordinate legislation.
Sittings of the adjudicators—they are part of this too—are sittings of a court of law. Provisions to establish a judicial process should be made by Parliament in a statute and should not be left to the Executive.
On behalf of the Council on Tribunals, I express appreciation to the Government for including in Clause 5 the bringing of the adjudicators within the supervision of the council. That is as it should be and I readily pay my tribute to the Government for what they have done. But it is not a substitute for establishing the procedure in the Bill.
In its annual report for 1992–93—I make no apology for reminding your Lordships of a quotation, part of which I used on Second Reading—the council said:
"We emphasise here, as we have in the past, that when establishing new tribunals, the Government should give due consideration to the appropriate legislative division between primary and secondary legislation. To establish a new tribunal by statutory regulation, however clear the legislative intention, does not accord with current practice. Establishment of a tribunal by Act of
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Parliament emphasises the tribunal's independent standing which is appropriate for a body exercising adjudicative functions in relation to the statutory rights of individuals".
It is for Parliament and not for the Executive to decide on the constitution of the judiciary. For that purpose subordinate legislation, even by affirmative resolution, is not, in my understanding, within the constitution.
As regards Amendment No. 46, the provisions for review are part of what is intended as a hierarchy of appeals which should equally be included within the statute. As I say, I accept at once that the argument is not nearly as strong in relation to Amendment No. 46 as it is in relation to Amendment No. 48. I hope that on reflection the noble and learned Lord will feel that this is a matter which goes to the root of constitutional practice and to the whole doctrine of separation of powers. I hope that this matter will be reconsidered. I beg to move.
5.45 p.m.
Earl Russell: I am very glad indeed that the noble and learned Lord tabled this amendment, which draws attention to some fairly substantial problems which we may encounter later if we do not take thought about them now.
The noble and learned Lord dealt with the problem of the distinction between the spheres of primary and secondary legislation. But we need to think also about the sphere of judicial discretion. I am aware that a formula may attempt to reduce the area of judicial discretion but in the case of the Child Support Act we have already seen that when that is done it may give rise to some quite acute problems and may on occasion inadvertently create severe injustice.
I note that the amendment deals with a decision to place a particular injury under a particular description within the tariff. I am glad that that point has been raised because it is the sort of matter with which a formula cannot cope adequately. I have in mind here a friend of mine who suffered an injury at such a point that it is a matter of debate as to whether he lost a foot or a leg. To say that that must be dealt with simply on one side of the tariff or the other shows an inflexibility and a lack of attention to evidence.
There is also a problem about whether the nature of the injury may be exactly the same for one person as it is for another. I have in mind the case in a detective story by the late Cyril Hare, otherwise his Honour Judge Gordon Clark, in which a judge, driving away from the assizes, inadvertently ran over a pedestrian. He was in a state of some anxiety until he learnt that the injury was only the destruction of the end joint of the little finger. The satisfaction lasted only until he discovered that the person concerned was the best concert pianist in England.
That is the sort of case I have in mind when I say that a flat rate tariff without any area for judicial discretion may not take into account adequately the fact that an injury is not quite identical to one person as it is to another. If the scheme is not to break down totally—and in this Chamber we must try to make legislation work

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—it is vitally important that there should be a provision for review which allows for the exercise of real discretion based on a hearing of the evidence.
Baroness Blatch: We strayed slightly from the amendment during the latter part of the debate. I should like to make two points on the pianist who might lose even a small part of one finger which disables him in his career. First, if such a person were the best pianist in the land, it would be extraordinary for him not to have an insurance which provided for just such an injury. Secondly, it is certain that future earnings would be taken into account and that compensation would be reflected in the loss of earnings and, possibly, loss of pension.
Clause 4 of the Bill requires the scheme to include provision for reviews of decisions taken on claims for compensation and for such reviews to be carried out by a person other than the person who took the original decision. The proposed new clause would place on the face of the Bill detailed provisions concerning the circumstances in which a review may or may not be requested and on what decisions, and the requirement for a review to be carried out by a person more senior to the person who took the original decision. It would also place on the face of the Bill a requirement for the scheme to set time limits for requesting reviews and procedures for such requests and for notification of the outcome. We believe that those details are not appropriate for the face of the Bill and that some parts of the proposed new clause are misconceived.
Our intention is that under subsection (1) of Clause 4 an applicant will be able to request an administrative review by the authority of its original decision on his or her claim. This new feature was introduced in the earlier tariff scheme with a view to delivering decisions quickly, cutting out unnecessary appeals, and relieving some of the pressure on the appeals process. Reviews will also help towards quality control. Applicants will have to have been through the review process before formally appealing. There will be a time limit on applications for review and we propose to stick to the 90 days used in the earlier tariff scheme.
Under subsection (2) of Clause 4 the review will have to be carried out by someone other than the person who took the original decision. The reviewed decision may confirm the original decision or substitute a new decision. I can assure the Committee that it is our intention that the scheme will provide, as the 1994 tariff scheme provided, that reviews must be carried out by someone senior to the person who took the original decision. Indeed, it would undermine the purpose of the procedure to do otherwise.
As I said, the proposed new clause would introduce into the Bill prescriptive and technical details which are more appropriate to the scheme itself. The Bill, as I have made clear, is not intended to set down the details of the scheme. It aims to provide a power to create the scheme and set its broad shape, leaving the details to be set out in the scheme. Those who have seen the draft scheme will know that the rules of the review procedure are detailed. The various matters which the scheme describes as reviewable, cover in effect any decision which a claims officer might taken on a claim. As the
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Committee knows, the terms of the scheme will require Parliament's approval. But if, for some unforeseen reason, it was necessary to amend these or some other details of the scheme, we do not want to have to amend legislation. Such an unwieldy process would just make for administrative complexity and delay.
We are aiming for simplicity in the language of the scheme, wherever possible, to help claimants understand it. The more the terms of the scheme consist of legal language dictated by the terms of the legislation, the more inaccessible the scheme will be for the ordinary victim.
As I have said, it is our firm intention that any review be undertaken by someone senior to the person who took the original decision. By that we mean senior in rank. The enhanced tariff scheme will make that clear. However, subsection (2) of the proposed new clause would not secure that as it does not say what is meant by the phrase "more senior than". Is it someone more senior in age, senior in length of service, senior in rank or senior in experience? The Bill itself does not refer to a hierarchical body which might imply some definition of seniority. The scheme, however, will make it clear that the claims officers will be working for an established body—namely, the Criminal Injuries Compensation Authority—in which a hierarchical structure will be recognised.
The provision in subsection (3) of the proposed new clause, for the setting of time limits for applications for review, is unnecessary as Clause 3(1)(f) of the Bill already provides a general power to set time limits.
The matters against which an appeal may be made, set out in subsection (4) of the amendment, are in effect set out in the draft scheme. But we consider that the proposed new subsection (4)(c)(iii) (appeal against a decision to place a particular injury at a particular tariff level) is misconceived as it would imply a right of appeal against the tariff itself, which would first have received Parliament's approval. Of course claimants will be able to apply for a review on the grounds that their injury should have been assigned to a different injury description with a higher tariff payment. But that particular provision would be a recipe for any number of appeals which would be outside the appellate body's jurisdiction as it would have no authority whatever to change the tariff.
I have two further points to make. The first is in response to the noble Earl, Lord Russell, and is most important. Even given the number of descriptions that we have set down in the tariff so far and which may soon be approved by Parliament, it still may be possible to have an injury which does not fall neatly within any of those categories and to which the board deems a new description must be applied; or, indeed, the board may decide that it should fit into a particular category and a particular band. In such a case, it would be for the authority to make the determination. If necessary, that would have to be presented to the appellate body which could make an interim payment to the claimant while making a recommendation to my right honourable friend the Home Secretary. He would then present Parliament

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with an amendment to the scheme. It would be for Parliament to approve the scheme, if it was deemed necessary.
Secondly, I should like simply to spell out the review system. As was said earlier, the Secretary of State remains responsible for the scheme itself but not for the individual decisions taken. The process then allows for an applicant to have an application considered and determined by the authority. If the applicant remains dissatisfied, he can request a review by a more senior officer. If he continues to be dissatisfied, he can then appeal to the appellate body. If the applicant remains unhappy, it is possible as a very longstop to resort to judicial review. If the applicant believes at any time that the administrative process has not been appropriate or that there has been some maladministration, then that person would come under the jurisdiction of the ombudsman with whom we shall be dealing in relation to a later amendment.
The roles are distinct. The appeals system is fair; indeed, it is a very sophisticated system. I also believe that we have a mechanism in place which will be subject to parliamentary approval to deal with those anomalous cases which come before the board from time to time and which do not fit neatly into the categories set out in the tariff of the scheme.
Lord Archer of Sandwell: I must tell the noble Earl, Lord Russell, that his intervention would have been a powerful contribution to some of the issues that we debated yesterday. I hope that he will be able to participate when those debates return to the Chamber on Report. They are important themes in the Bill.
I turn now to the Minister's response. I do not believe that I introduced the amendment very well. I accept that that was my fault. However, the point of issue is not the details of the review scheme. As schemes go, it is not a bad scheme. We were faced with the difficulty of trying to bring into the Bill the essentials of what was in effect an appellate scheme, leaving the details outside the Bill. As with some of our other amendments, it was not an easy task. Perhaps we did not do it very well.
Similarly, I appreciate that the Minister's brief was prepared in advance of the debate. However, I thought that I said enough on Second Reading to indicate what was really in our minds. The points in issue were not referred to in the Minister's response. We are very largely agreed on that. What is in issue is that a judicial process should be included in a statute and not in secondary legislation. It should not be left to the Executive to decide on the functions and constitution and powers of the judiciary. It is a constitutional point that we are making.
I wonder whether the noble Baroness would have used the same arguments if we were dealing with an appeal to the High Court and we were setting up a separate division of the High Court for the purpose of hearing the appeal. What troubles me is that I have a suspicion at the back of my mind that she would have done so, because from the way in which the mind of the Home Office seems to be working at the moment that could well have been in her brief. But obviously I have
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totally failed to make clear to the noble Baroness what it is that is troubling us and for that I accept full responsibility.
What we are troubled about is the whole business of the separation of powers; what we are troubled about is the Executive making provision for judicial hearings about complaints about the Executive. There is no point in my going on at this stage. I am quite happy, if the noble Baroness would care to have a private conversation, to discuss this with her, with or without her officials. It is something to which we shall return, but this is obviously not the occasion to deal with it. For the moment, I beg leave to withdraw the amendment.
6 p.m.
Baroness Seear: Before the noble and learned Lord sits down I wish to say that we on these Benches strongly support the point he has made about administrative action where judicial action is required and the enormous importance of the separation of the powers.
Lord Archer of Sandwell: I am most grateful to the noble Baroness for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Reviews]:
[Amendment No. 47 not moved.]
Clause 4 agreed to.
Clause 5 [Appeals]:
Lord Archer of Sandwell Lord Archer of Sandwell had given notice of his intention to move Amendment No. 48.
Page 3, line 36, leave out from beginning to end of line 8 on page 4 and insert—

("(1) Any applicant who is aggrieved by the outcome of a review under section 4 may appeal to the Criminal Injuries Compensation Appeals Panel ("the Panel").

(2) The Panel should consist of adjudicators appointed by the Secretary of State, who shall be barristers or solicitors of at least 5 years standing, and the Secretary of State shall appoint one such adjudicator to be Chairman of the Panel.

(3) Appeals to the Panel shall be determined by a tribunal of three adjudicators.

(3A) Members of the Council on Tribunals shall be entitled to attend all oral hearings.

(3B) The Scheme shall include provision as to the method of appealing, the procedure to be adopted prior to and at the hearing of appeals (including the circumstances under which oral representations are to be made), time limits, the notification of appeals, the giving of reasons for decisions, and for the appointment of staff by the Secretary of State for the purpose of administering the appeal system.").

The noble and learned Lord said: In introducing Amendment No. 46 I indicated that the arguments were substantially similar to those relating to Amendment No. 48. I would only make the point that those relating to Amendment No. 48 are stronger and clearer as regards the appeals system. Amendment No. 48 is therefore a stronger amendment than Amendment No. 46. If that makes any difference to the thinking of the Government, if they see a distinction between the two, I would be happy to debate it. If they do not and if their ears are closed to the arguments, whether they relate to reviews or appeals, there seems little point in taking up the

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Committee's time. I see from the face of the noble and learned Lord opposite that there is no distinction in the mind of the Government between the two. In the circumstances, I shall not move the amendment.
[Amendment No. 48 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 49:
Page 3, line 40, at end insert ("and—
(c) for such appeals to be determined only after oral representations by or on behalf of the applicant if the applicant so desires.").
The noble and learned Lord said: This is a short and simple amendment. The noble Baroness, Lady Blatch, in the course of dealing with a number of amendments said that the scheme involves a measure of rough justice. I accept that that is a fair description. There is no need for that rough justice to be rougher than is absolutely essential. It will be rougher than is essential if the applicant for compensation who wants an oral hearing is told he is not to have one because the Executive thinks it can manage to deal with the situation adequately on paper. My point is therefore a brief one. Any appeal procedure in which the applicant seeks an oral hearing should provide the applicant with such a hearing; otherwise there will be many quite unnecessary senses of grievance.
There is a further point. Where one is dealing essentially with a litigant in person, he or she frequently has difficulty in expressing himself clearly and in putting across to the tribunal exactly what the point is. If there is an oral hearing an experienced person should be able to discover whether or not there is a point of significance, and as was so often the case in regard to those of us who had the privilege of sitting with the noble and learned Lord, Lord Denning, in the Court of Appeal, the litigant in person who is listened to sympathetically and understandingly goes away convinced that although he or she has lost, he or she has had an adequate opportunity to put the case in hand, and goes away therefore without a sense of grievance. That is what this amendment is designed to prevent. I beg to move.
Lord Campbell of Alloway: I rise briefly to support the spirit of this amendment. I never had the privilege of sitting with the noble and learned Lord, Lord Denning, but I had the privilege of appearing before him on many occasions and everything that has just been said by the noble and learned Lord is more than fully justified. However, if one looks at the scheme, the question is whether this amendment, which provides for the man to feel that he has had a fair crack of the whip and to be heard, should not be incorporated into the appeals procedure under paragraphs 52 and 53. One has to draw a distinction between the other appeals under paragraph 69. In those other appeals,
"The appellant, the claims officer appearing on behalf of the authority and the adjudicators may call witnesses to give evidence and may cross examine them".
It is almost inherent in that that the appellant in this type of rehearing should be able to be heard, and that which is implicit should be made plain in paragraph 69. The amendment which the noble and learned Lord, Lord Ackner, proposes is not a rehearing amendment; he draws a fair and perfectly proper distinction between
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what is a kind of rehearing under paragraph 69 and the right of the appellant to be heard and to feel that he has had his say under the other paragraphs. I respectfully suggest that this is not a matter to be dealt with in primary legislation for the reasons I have given. It could be so easily addressed at a later stage of these proceedings in a proposed redraft of the scheme.
Lord Archer of Sandwell: If it is not presumptuous of me I rise simply to express my unqualified support for what has been said by the noble and learned Lord, Lord Ackner. I do not dissent from what has been said by the noble Lord, Lord Campbell of Alloway. It is not a matter on which I would go to the stake either way, but the important thing from our point of view on these Benches is that we wholly support the view of the noble and learned Lord, Lord Ackner.
Lord Rodger of Earlsferry: I assume that the reason the noble and learned Lord, Lord Ackner, has put down the amendment at this place in the Bill is that the effect would be to require such a provision to be in the scheme. Of course if it were in the scheme the noble and learned Lord would be equally happy, so I do not think it matters in which technical way one considers that. I fully understand the thinking behind the amendment. Let me say straight away that we envisage that in the vast majority of cases an oral hearing would be heard by the panel. Nonetheless, as the noble and learned Lord appreciates, his amendment goes much further and would require that in every case where it were required, requested or desired by the applicant, there should be such a hearing. That means that, however unmeritorious a case may be, there would be a requirement for such a hearing.
From his unparalleled experience the noble and learned Lord drew attention to questions which arose when he was sitting, for example, with the noble and learned Lord, Lord Denning, and where party appellants appeared. I accept that there may be such cases. I am certain that when one looks at the criteria contained in the scheme, where it is thought that there is something to be said for an appeal there will be such a hearing. However, one has also to deal with those cases where it is perfectly plain that there is nothing to be said for an appeal and that the case is completely unmeritorious and will remain so.
For example, suppose there was an unqualified admission by an appellant, accepted below and on review—one must remember that such cases would all have been reviewed—that he had provoked the fight in which he had been injured. Suppose that he appealed on the grounds that it was not proper for a reduction to be made on that basis. Self-evidently that appeal could not succeed because it would be completely wrong. Nothing said at a hearing could justify the proposition that the adjudicator was not entitled to make a reduction.
To require that if the appellant says that he desires a hearing there should be a hearing would be to expend a great deal of time and energy on a matter which could not succeed. On the contrary, it might raise hopes on the part of the appellant which could never be fulfilled.
Therefore, although I appreciate that the insistence on a hearing could in some cases have the psychological effect to which the noble and learned Lord drew

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attention, nevertheless that would be too dearly bought. The scheme should provide for a system which deals efficiently and speedily with appeals. Time and resources should be expended on appeals which have a good chance or some chance of success rather than on those appeals which could not in their nature ever succeed.
Although I understand the reason behind the amendment I believe that it goes too far and that what is envisaged here would not work satisfactorily. Rather, we believe that it is correct that the matter should be left to the discretion of the appeals panel. Applying the approach set out in the scheme would mean that there would be oral hearings where that would have a practical effect. However, it would be wrong to give a right to such hearings even in cases where such an appeal could never succeed.
Lord Campbell of Alloway: Before the noble and learned Lord sits down perhaps I may ask him a question. If limited to paragraphs 52 and 53 how does what he said stand up? Under paragraphs 52 and 53, in an appeal against review under paragraph 58 one has to put in a notice of appeal and give one's reasons. In those circumstances, why on earth should not the man be entitled to appear and say something, albeit limited to his written reasons, and to elaborate on those reasons and so feel that he has been heard? This is not a question of a sifting mechanism. The noble and learned Lord seems to think that we are dealing with a sifting mechanism for restrictive trade practices or something of that kind. It is nothing like that. I hope that my noble and learned friend will look at paragraphs 52 and 53 again and give a more positive response on that narrow point.
Earl Russell: The noble and learned Lord has given what, on an administrative level, is a perfectly rational answer. However, he has failed to respond to the human dimension of the argument put by the noble and learned Lord, Lord Ackner. The argument that a hearing contributes to consent is a very powerful one which is within the experience of all of us. Government by consent is a much more tender plant than we often think. It is far more easily destroyed than we sometimes realise. Once it is destroyed it is not easily recovered. One sees in some neighbourhoods of some towns in some countries what the effects may be when consent is destroyed.
I admit that appeals which may have no chance of success may have a cost. I admit that that cost has to be counted. However, we also have to count the cost of what may happen if we do not give people a hearing. We in this place know quite well the financial and, on occasion, human costs of security. The costs of appeal may in some circumstances be in all ways preferable.
6.15 p.m.
Lord Rodger of Earlsferry: Of course I accept, as I did in replying to the noble and learned Lord, that the giving of a hearing may have a psychological effect in individual cases. Nonetheless, I said, I did not believe that that was a sufficient reason for us to accept the
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amendment, especially when it would mean that those who have good grounds for appeal are likely to have the disposal of those appeals delayed by hearings which could not serve any useful purpose and could not lead to success. I fully understand the psychological case, but we do not believe that that is a sufficient reason for proceeding in this way.
To respond to my noble friend Lord Campbell of Alloway, I have read paragraph 52, and also paragraphs 61 onwards which deal with this kind of case. It is because the grounds of appeal will be notified and can be considered that there may be cases which, it can be seen, will not succeed. I gave an admittedly extreme example of such a case. I accept that one could argue that nonetheless in such cases, for the reasons given by the noble and learned Lord, Lord Ackner, and the noble Earl, Lord Russell, one might opt for the psychologically healing effects of having such a hearing. However, for the reasons I have given, the Government do not believe that those effects are sufficient to make this a desirable amendment.
Lord Ackner: There is a decision of the former Vice Chancellor, Sir Edward Megarry, the name of which escapes me, in which he said that the law reports are littered with cases originally thought to be open and shut which in the circumstances turned out to be neither. The phrase "however unmeritorious, are we to allow an oral hearing?" shows a potentially closed mind by the administration.
If it is so clear from the notice of appeal that there are no valid grounds, how many minutes would it take to say to the would-be appellant "Look, Mr. Brown," as the noble and learned Lord, Lord Denning, would have done, "Your problem is that you do not have a case, because of A, B or C". How long would it take to get over that particular hurdle? With an experienced tribunal, would it take three minutes or five minutes? That is all we are arguing about—the expenditure of a matter of minutes in order to send away a dissatisfied applicant with at least the feeling that he has had his day, or his five minutes, in court. In a situation in which, as has been conceded by the noble Baroness, a system replete with rough justice—my phrase—one should bend over backwards to ensure that there is no risk of that permeating the appeals system.
It is for that reason that I moved the amendment. It is clear that the Government are insistent that they will have none of it. Therefore, I beg leave to withdraw the amendment with a view to reading the exact justification and possibly reculer pour mieux sauter at a later date.
Amendment, by leave, withdrawn.
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 50:
Page 3, line 42, at end insert ("except so far as the provision relates to functions of persons mentioned in subsection (3)(d)(ii)").
The noble and learned Lord said: In moving Amendment No. 50, I speak also to Amendment No. 52.
These amendments may seem a little obscure, but they have a simple purpose. They are intended to allow claims officers, or staff appointed by the scheme manager, to act as presenting officers at appeals.
Clause 5 provides the framework for the independent appeals system that will operate under the enhanced tariff scheme. As under the 1990 scheme, and the 1994 tariff scheme, we envisage that cases will be presented to the appeals panel by presenting officers. Their job—I stress this—will be to present the facts of the case and to facilitate the appeals process.
We also envisage that the presenting officers will be claims officers (or staff appointed by the scheme manager). However, the Bill as presently drafted confines their functions to determining claims. These amendments will allow them to act as presenting officers as well.
The first amendment overcomes the obstacle in subsection 5(2) which, as drafted, specifically prohibits the scheme manager from having any responsibility for the appeal process. The amendment provides the necessary exception in respect of presenting officer duties. I beg to move.
Lord Macaulay of Bragar: I understand what the noble and learned Lord said about the operation of the scheme. At Second Reading we raised a question on the use of the words, "if a scheme manager is appointed". Nothing has been done about that. It has not been put the other way: that a scheme manager shall be appointed. The system which the noble and learned Lord outlined depends on the existence of a scheme manager, an appointment which is not compulsory under the terms of the Bill. I may be misreading it, but I should have thought that some consideration should be given to the words, "if a scheme manager is appointed". It could provide that a scheme manager shall be appointed.
Lord Rodger of Earlsferry: One never knows precisely what line the Labour Party will take on contracting out. However, I do not believe that it is wholly in favour of it. I understood the noble Lord, Lord McIntosh, to say earlier that the Labour Party would be opposed to it.
The words, "if a scheme manager is appointed" allows for the possibility of contracting out. I stress that at present there is no intention to do so. The position taken by the noble Lord, Lord Macaulay—to require a scheme manager to be appointed—would require the Government to proceed on the basis of contracting out, which I suspect that he would not wish to do at present.
Lord Macaulay of Bragar: I was not making a political point but purely a drafting point.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 51:
Page 3, line 43, leave out ("may") and insert ("shall").
The noble Lord said: Amendment No. 51 was grouped yesterday with Amendments Nos. 21 and 35. I did not speak to it. I believe the noble Baroness will agree that I reserved any observations I had on Amendment No. 51 in order to put the argument in its chronological place. Accordingly, with the leave of the Committee, I beg to move Amendment No. 51.
Baroness Blatch: Again I am baffled by the amendment. I fail to see what useful purpose would be achieved by it. All that it does is to make mandatory rather than discretionary for the scheme to include a particular provision. Making that provision mandatory adds nothing to Parliament's understanding of the Secretary of State's arrangements which have already been set out very clearly in the draft scheme which was published and circulated widely in August. Nor does it provide any additional protection either for the victims or the Government. The amendment shows a misunderstanding of the purpose of the clause concerned, which is to provide an illustration of one way in which the Secretary of State may exercise the power conferred on him by Clause 1. It would not be appropriate to lay down a mandatory requirement for which provision must be included in the scheme for ever more, whether or not it is appropriate.
Again I remind the Committee that Parliament will have the final say over the scheme and will thereby have an opportunity to approve its detailed provisions. As the noble Lord knows, it is also possible for the measure to be amended in future. I hope that the noble Lord will not feel it necessary to press the amendment.
Lord Macaulay of Bragar: I am grateful to the Minister for that reply. I shall read with interest what she said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 52:
Page 4, line 8, at end insert—
("(d) for specified functions in relation to appeals to be conferred on—

(i) claims officers; or

(ii) persons appointed by the Scheme manager as mentioned in section 3(4)(a).").

Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 53:
Page 4, line 8, at end insert—
("( ) to ensure that at least one member appointed under paragraph (c) is trained in Scots law").
The noble Lord said: It is a simple amendment. It ensures that the interests of Scots law are preserved within the scheme. It ensures that at least one member appointed under paragraph (c) is trained in Scots law. The scheme is a United Kingdom scheme. We have two different systems of law. It is important that someone trained in Scots law should be part of the team.
As the noble and learned Lord will know, at present fatal cases are dealt with in England by English members of the board; and fatal cases in Scotland are dealt with by Scottish members of the board. The amendment is simple and ensures that that distinction is maintained. I beg to move.
Lord Rodger of Earlsferry: The amendment as printed on the Marshalled List refers to those people appointed under subsection(3)(c) who are members of staff. Members of staff serve administrative functions. There is no need for them to be trained in Scots law or

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any other system of law. I believe that the noble Lord was dealing with the question of those who adjudicate upon matters. That is dealt with in paragraph (a)
Some of the members of the appeals panel will be appointed by my right honourable friend the Secretary of State for Scotland. It is envisaged that seven or eight of the appeals panel members out of a membership of between 40 and 50 will be appointed by him. I believe the noble Lord knows that the practice has always been to appoint members of the legal profession of Scotland to the scheme. It is the intention that that should continue to be the practice: that there will indeed be members of the legal profession of Scotland appointed to the new appeals panel. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. It is a somewhat fast ball that the amendment refers to paragraph (a) rather than paragraph (c). I hope that the undertaking that there will be a place for the special standing of the Scottish legal system within the administration of the criminal injuries compensation scheme will be noted in the appropriate places. In the light of the undertaking given by the noble and learned Lord the Lord Advocate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54 and 55 not moved.]
Lord Rodger of Earlsferry Lord Rodger of Earlsferry moved Amendment No. 56:
Page 4, line 34, leave out ("under this section").
The noble and learned Lord said: This is a technical amendment. Clause 5(9) makes it clear beyond doubt that the scheme may include provision for adjudicators to reduce awards where they consider that an appeal is frivolous or vexatious. This minor technical amendment to delete the words "under this section" is necessary since appeals are not in fact determined under the Act itself, but in accordance with the provisions of the scheme which is to be made under the powers conferred by Clause 1 of the Act. I beg to move.
6.30 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 57:
Page 4, line 34, at end insert ("and the applicant had received warning prior to the determination of the appeal that the appeal was at risk of being considered so to be").
The noble Lord said: This is a relatively minor amendment which relates to the provision under Clause 5(9) which provides for a reduction of the amount of compensation if in the opinion of the adjudicator,
"the appeal is frivolous or vexatious".
We do not object to that; the principle is common in law and valuable. But the scheme is liable to deal with a large number of people who have little experience of the law or of the kind of procedures which the scheme will involve for them. It seems not unreasonable for the appellant to be given a warning if the appeal is at risk
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of being considered to be "frivolous or vexatious". It is not a point of great importance, but one which the Government may wish to take on board. I beg to move.
Lord Rodger of Earlsferry: I am grateful to the noble Lord for raising the matter on which one may wish to reflect as to how it may be handled in practice. As the noble Lord will appreciate and as was indicated earlier on, there will be cases where the decision to dismiss the appeal will be taken at an earlier stage without a hearing. The appeal will appear to be vexatious right from the outset and therefore one will have to warn the people before they put in the appeal. In another case the fact that it was vexatious might only appear during the hearing, for example, where the appeal was based on the idea that a person had no previous conviction, whereas the claim had been determined on the basis that he had. In the course of the hearing, when it became apparent that he had a conviction and the appeal was therefore completely unfounded and he was acting fraudulently, that would be the most appropriate point at which to warn him. There are difficulties in knowing how to deal with the problem.
It seems to me that we should draw attention to the matter in the guide which will be provided for the Act. However, when people are sent the form which allows them to appeal, it might be advisable for a leaflet accompanying it to contain a warning, or for a warning to be on the face of the form about the provision. There are various ways of dealing with the point. We would wish to reflect on it and it should be dealt with administratively. We have thought about the point and will wish to consider it further to ascertain how it can best be dealt with.
Lord McIntosh of Haringey: That seems reasonable to me and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5, as amended, agreed to.
Clauses 6 and 7 agreed to.
[Amendment No. 58 not moved.]
Clause 8 [Annuities]:
Baroness Blatch Baroness Blatch moved Amendment No. 59:
Page 6, line 11, at end insert—
("(3) In this section "the Criminal Injuries Compensation Scheme" means—

(a) the scheme established by arrangements made under the Criminal Injuries Compensation Act 1995; or

(b) arrangements made by the Secretary of State for compensation for criminal injuries and in operation at any time before the commencement of that scheme." ").

The noble Baroness said: This amendment fulfils the promise made in another place to extend the benefits of structured settlements to applicants under the current, common law damages scheme (or any previous version of it) whose claims have not yet been settled.
As the Committee knows, structured settlements can be a highly advantageous way of paying compensation to victims in higher value cases. It affords them the option of receiving their award, not as a lump sum, but in the form of a stream of periodic payments under an

723
annuity. These payments will be tax-free, and can be index-linked, thereby providing guaranteed payments for life, or other specified period.
Under the Bill as it stands, that facility would only be available to claimants under the new, enhanced tariff scheme to be made under the Bill's powers. This amendment will extend that facility to claimants under the present scheme by widening the definition of the words,
"the Criminal Injuries Compensation Scheme".
This amendment will necessitate a complementary change to the 1990 scheme to allow payment of compensation by the purchase of annuities. My right honourable friend the Secretary of State will make the necessary change to the 1990 scheme on the day this Bill receives Royal Assent. He will confirm this in the usual way by Written Statement in the other place. I beg to move.
Clause 8, as amended, agreed to.
Clause 9 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 60:
After Clause 9 insert the following new Clause—
JURISDICTION OF PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION
(".—(1) In the Parliamentary Commissioner Act 1967, insert after section 11A—
"The Criminal Injuries Compensation Scheme.
11B.—(1) For the purposes of this Act, administrative functions exercisable by an administrator of the Criminal Injuries Compensation Scheme ("Scheme functions") shall be taken to be administrative functions of a government department to which this Act applies.
(2) For the purposes of this section, the following are administrators of the Scheme—

(a) a claims officer appointed under section 3(4)(b) of the Criminal Injuries Compensation Act 1995;

(b) a person appointed under section 5(3)(c) of that Act;

(c) the Scheme manager, as defined by section 1(4) of that Act, and any person assigned by him to exercise functions in relation to the Scheme.

(3) The principal officer in relation to any complaint made in respect of any action taken in respect of Scheme functions is—

(a) in the case of action taken by a claims officer, such person as may from time to time be designated by the Secretary of State for the purposes of this paragraph;

(b) in the case of action taken by a person appointed under section 5(3)(c) of the Act of 1995, the chairman appointed by the Secretary of State under section 5(3)(b) of that Act; or

(c) in the case of action taken by the Scheme manager or by any other person mentioned in subsection (2)(c) of this section, the Scheme manager.

(4) The conduct of an investigation under this Act in respect of any action taken in respect of Scheme functions shall not affect—

(a) any action so taken; or

(b) any power or duty of any person to take further action with respect to any matters subject to investigation."

(2) In Schedule 3 to the Act of 1967 (matters not subject to investigation), insert after paragraph 6B—
"6C. Action taken by any person appointed under section 5(3)(c) of the Criminal Injuries Compensation Act 1995, so far as that action is taken at the direction, or on the authority (whether express or implied), of any person acting in his capacity as an adjudicator appointed under section 5 of that Act to determine appeals."
(3) The amendments made by this section do not affect the following provisions of this Act—
724

(a) section 3(5)(b);

(b) section 3(7)(b);

(c) section 5(4)(b).").

The noble Baroness said: During the earlier stages of this Bill we gave an undertaking, in another place, that we would consider carefully whether the administration of the new scheme should be subject to investigation by the Parliamentary Commissioner for Administration—more commonly known as the ombudsman. We concluded that it should, and this new clause gives effect to that decision.
We firmly intend that the new scheme should be run as effectively and efficiently as possible, and mechanisms will be built in to facilitate this. For instance, the authority will be required to set standards of performance and targets, and will have to report on how it has measured up to them in its annual report. There will also be a fully developed and effective complaints procedure, so that claimants who feel their case has been badly handled can make a formal complaint in the sure expectation that it will be speedily and properly investigated.
But, despite that, we accept that applicants who believe their case has been subject to maladministration should have a means of seeking external reassurance. That is why we agree that the ombudsman should be allowed to investigate such cases.
The ombudsman will not of course be able to investigate the merits of the decision taken in any case. That is not his role, and he is specifically precluded from doing so by the Parliamentary Commissioner Act 1967. But he will be able to investigate the administrative actions of the staff taking those decisions, and report as to whether there was, or was not, any maladministration in their handling of the case. I beg to move.
Lord Archer of Sandwell: This matter has already been the subject of our discussions. As the noble Baroness said, it was a suggestion made by colleagues in another place; the Government listened and the Bill has been improved. We are grateful.
Clause 10 [Parliamentary control]:
Baroness Blatch Baroness Blatch moved Amendment No. 61:
Page 6, line 34, leave out from beginning to ("the") in line 38 and insert—
("Before making the Scheme, the Secretary of State shall lay a draft of it before Parliament.
(1A) The Secretary of State shall not make the Scheme unless the draft has been approved by a resolution of each House.
(2) Before making any alteration to the Tariff or to any provision of').
The noble Baroness said: In speaking to Amendment No. 61, perhaps I may also speak to Amendments Nos. 63 to 66 inclusive. The amendments change significantly the extent of Parliament's control over the scheme. At present the Bill requires the Secretary of State to lay a copy of the tariff, and any subsequent alterations to it, before Parliament. It also requires the Secretary of State to lay before Parliament statements of other key provisions made by the scheme; namely, those bearing on quantum.
It has been argued in another place and elsewhere that this leaves too much control in the hands of the Executive and that Parliament should retain greater control over the new arrangements. We have reflected further on this and have been persuaded by the force of those arguments. The amendments proposed therefore will give Parliament, rather than the Executive, final control over every aspect of the new scheme.
Under the new amendments the Secretary of State would be required to lay a draft of the whole scheme—in its entirety—before Parliament. He would not be able to make the scheme until that draft had been approved by both Houses under the affirmative resolution procedure. Thus specific parliamentary approval would be required for every aspect of the new arrangements.
Once the new scheme was up and running, any changes to it, however minor, would also be subject to parliamentary control. Changes to the tariff itself and to key features of the scheme would require approval by the affirmative resolution procedure, while changes to the more minor and routine features would be subject to the negative resolution procedure. We believe that that strikes the right balance. It requires Parliament positively to approve changes to the more important aspects of the scheme, while leaving Parliament the choice as to whether changes to more minor matters should go through with or without a debate and vote.
The amendments now make it quite clear where ultimate control over the scheme rests. The Executive will still be able to propose changes but it cannot give them effect without recourse to Parliament. I beg to move.
Lord McIntosh of Haringey: We anticipated this debate early yesterday afternoon when discussing the amendments moved by the noble Lord, Lord Windlesham. We have all expressed our gratitude to the Government for the concession that has been made, in that the whole of the original scheme and tariff will be laid before Parliament for the affirmative resolution procedure.
At the risk of being ungrateful, I should like to make two points. First, the Committee will be well aware that the affirmative resolution procedure is very much inferior as a form of opportunity for Parliament to debate and amend legislation than legislation on the face of the Bill. There is always a trade-off between flexibility and administrative convenience, but we have attempted to show in the course of the debate on this Bill that administrative convenience and flexibility have been put to the fore at the expense of parliamentary accountability and responsibility. We regret that. Secondly, although in the amendments moved by the Minister the original tariff and scheme—which perhaps may be termed the first shot at them—come before Parliament in their entirety, alterations come before Parliament only if they fall under the headings of Clause 10(2). Those by no means cover all of the important issues that we have debated over the past day and a half. It will come as no surprise to the Minister that our approach to Report stage will to a considerable extent consist of an attempt to persuade the House that there
726
are other important matters which ought to be included in the affirmative resolution procedure when they come forward as alterations. But, with those warnings, we are grateful for the amendments so far as they go.
[Amendment No. 62 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 63 to 66:
Page 7, line 2, at end insert ("the Secretary of State shall lay before Parliament a draft of the provision as proposed to be altered.").
Page 7, line 3, leave out subsection (3).
Page 7, line 7, leave out ("this section") and insert ("subsection (2)").
Page 7, line 9, at end insert—
("(4A) Whenever any other provision of the Scheme is altered, the Secretary of State shall lay a statement of the altered provision before Parliament.
(4B) If any statement laid before either House of Parliament under subsection (4A) is disapproved by a resolution of that House passed before the end of the period of 40 days beginning with the date on which the statement was laid, the Secretary of State shall—

(a) make such alterations in the Scheme as appear to him to be required in the circumstances; and

(b) before the end of the period of 40 days beginning with the date on which the resolution was made, lay a statement of those alterations before Parliament.

(4C) In calculating the period of 40 days mentioned in subsection (4B), any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days shall be disregarded.").
The noble Baroness said: I beg to move Amendments Nos. 63 to 66 en bloc.
[Amendment No. 67 not moved.]
Clause 10, as amended, agreed to.
6.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 68:
After Clause 10, insert the following new clause—
ANNUAL REVIEW
(". The Secretary of State shall in consultation with the body of adjudicators review annually the Scheme and the Tariff and shall lay before Parliament annually alterations to the standard amounts of compensation set out in the Tariff to reflect changes in the Retail Price Index occurring in the preceding year.").
The noble Lord said: Amendment No. 68 is concerned with future up-rating for inflation. In a sense, the administration of this amendment is made easier by the amendments to Clause 10 which have just been agreed. The history of the matter is a little complicated and I will not do any more than summarise it. Basically, the original tariff was based on median awards for 1991 to 1992. The Government claim that the original tariff has been up-rated by 19 per cent. from the median figures to bring it up to date. I accept that that may bring it up to date for the present time, but the proposal is that the tariff levels will be reviewed only every three years rather than every year. Therefore, the tariff will not be reviewed for inflation until April 1999, three years after the date when the scheme is expected to come into effect. Until 1999 we will still be working on the 1994 figures even though they have been updated from the 1991 to 1992 review. It is fairly clear that, whichever

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Government are in power and however successful attempts to control inflation may be, there is a possibility that by 1st April 1999 the scheme will be out of date in financial terms.
We now have a provision that the original scheme, and a considerable number of alterations to it, must come before Parliament. I believe it is logical and in line with many other financial arrangements laid down in secondary legislation that the Secretary of State should, in consultation with the body of adjudicators, review the scheme and the tariff and lay before Parliament annually alterations to the standard amounts of compensation to reflect changes in the retail prices index that have occurred in the preceding year. This is commonly done. The Order Paper of your Lordships' House, if not perhaps the time on the Floor, is cluttered up with statutory instruments which update legislation for inflation. I think immediately of the assisted places scheme. That has always been updated every year, because the Government have a political interest in doing so. Surely, there is nothing exceptional or extraordinary about proposing that this scheme should also be updated every year in line with inflation. The Government would obtain better understanding of and credibility for the scheme if they agreed to this relatively minor amendment. I beg to move.
Baroness Blatch: We are quite happy to consult the panel as necessary or to receive their advice at any time that they wish to give it. Indeed, to reflect that we amended the Bill in another place. We have also undertaken to keep the operation of the scheme under general review, and specifically to review the tariff levels themselves every three years. We think that is quite sufficient and offers all the flexibility needed for a straightforward, tariff-based scheme. There is already a very considerable element for future inflation built into the tariff. The levels of the 1994 tariff scheme were based on previous board awards after a very generous allowance had been made for inflation. Indeed, in the event that allowance proved to be quite over generous. Those 1994 tariff levels included an element for loss of earnings and care. That has not been stripped away from the awards as the noble Lord is aware. Such elements are now to be paid separately in addition in the more serious cases. But we have not stripped those elements out of the tariff levels for the new scheme, which are the same as those in the 1994 tariff. They are therefore higher than they might otherwise have been. As such, they effectively include a significant cushion against future inflation.
There is therefore no case for reflating the tariff levels for the first three years of the new scheme's operation; nor is there any case for annual up-rating thereafter. With low future inflation, any potential loss that claimants might suffer from a three year review cannot be very great. I should also point out that where loss of earnings and special care are payable, those elements will go up automatically in line with wages and the cost of care. A very good proportion of the awards will be inflation-proofed. We believe that a three-year review is sufficient to be fair to all claimants.
Lord McIntosh of Haringey: Of course, the amendment does not say anything about loss of earnings payments. We recognise that loss of earnings payments will go up in line with inflation. The amendment concerns the standard amounts provided for in the tariff.
It is an extraordinary argument put forward by the Government that they have already over-provided in the existing scheme because they have included loss of earnings once and then provided for them separately a second time. In any normal business one would say that anybody who over-provides in that way and then claims, as a result of that over provision, that they do not need to think about it again for three years should go back and re-write their budget.
I was brought up working for the General Electric Company. We had a standard rule that factory prices had to go down by 10 per cent. every year: in other words, there was a constant struggle to reduce costs. I sometimes wonder what Mr. Waldegrave is doing if he is not paying attention to proceedings on the Floor of the Chamber in Parliament and the Government claim that they have been extravagant now in order to avoid uprating the payments in future years.
The Government cannot get away from that dilemma by resisting the amendment. The only honourable way for the Government to deal with the matter is to reduce the amounts to a figure which does not account for loss of earnings and then make adequate provision for uprating in the future. Perhaps Mr. Waldegrave would approve of that rather more.
I shall be interested to see whether, in the light of our discussions, there will be any changes in the revised tariff when it is put before Parliament. It is too tempting. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Repeal of the 1988 Act scheme and transitional provisions]:
[Amendment No. 69 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 70:
Page 7, line 16, at end insert ("or until 1st April 1996").
The noble Lord said: This is a rotten amendment. It is badly worded because I meant to say that the date on which the scheme comes into force should be not later than 1st April 1996 rather than saying,
"or until 1st April 1996".
Because it is a rotten amendment, I shall not press it.
However, it provides an opportunity for me to express my gratitude to the Minister for making the scheme available and for the fact that the scheme says, in paragraph 1,
"Applications received on or after 1st April 1996 for the payment of compensation…will be considered under the following provisions of this Scheme".
It would have been nice if that commencement date, like most commencement dates, had been included on the face of the Bill rather than in a scheme. But if the Minister confirms that it is the Government's inalienable intention that the scheme shall start not later than 1st April 1996, that will be helpful. I beg to move.
Baroness Blatch: I absolutely confirm that our intention is to have the scheme up and running by 1st April 1996. Our difficulty with the amendment is that it would provide an absolute deadline in legislation. If, in its wisdom, Parliament decided not to accept the scheme and sent it away for redetermination, there would be a delay and following 1966 we would be without a scheme. It would then be impossible for an applicant to make an application because there would not be a scheme. It is a safeguard against the possibility of missing the deadline to make sure that there is a scheme in place in order for applicants to make applications.
Lord McIntosh of Haringey: I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 71:
Page 7, line 17, leave out subsection (3).
The noble Lord said: Amendment No. 71 seeks to delete Clause 11 (3), which reads,
"At any time before the commencement date, the Secretary of State may make such alterations to the current arrangements as he considers appropriate".
"Current arrangements" are defined in Clause 11 (2). I listened to what the noble Baroness said in relation to Clause 10 and am wondering whether a drafting problem exists in this regard, too. Also, should the power given to the Secretary of State in Clause 11(3) be made subject to the provisions of Clause 10? Otherwise, the Secretary of State has a free hand to do whatever he likes with the present arrangements—the common law scheme—without any parliamentary scrutiny whatever. He can walk into the House tomorrow and make an announcement that awards have been reduced to whatever level he wishes and there would be no parliamentary scrutiny of any alterations and no provision for consultation.
The amendment is a probing amendment. It could be more happily worded in the light of the commencement date of the new scheme. The provision seems to give the Secretary of State complete power to do what he likes without parliamentary scrutiny. As has been said more than once in the course of debates today and yesterday, that is a dangerous innovation. I beg to move.
Lord McIntosh of Haringey: I shall be fascinated to hear the Minister's reply to my noble friend's amendment. It occurs to me, looking at Clause 11, that subsection (2) provides that, for the first time in 31 years, the current scheme should have a statutory basis rather than being on the basis of royal prerogative. I think that should be celebrated.
Baroness Blatch: I had intended to refer to the past 30 years and say that the records of the various Home Secretaries have been rather good ones and it is a short time to go for the demise of the scheme.
The aim of subsections (2) and (3) of Clause 11 is to make it clear beyond doubt that there is a power both to run the 1990 scheme and to make alterations to it in the period between Royal Assent and the coming into force of the enhanced tariff scheme in 1996. If we are to continue to operate the 1990 scheme in that period—of
730
course it is essential for victims that we should be able to do so—then clearly we must also have a power to make any changes that may prove necessary. In the nature of things I cannot specify now precisely how that essential contingency power might be used because it is just that; a contingency power. But I can perhaps give two examples.
In discussion on Clause 8 earlier in Committee, I pointed out that if we were to be able to make structured settlements available to claimants under the 1990 scheme we would have to change the 1990 scheme itself to make that possible. If we had not been far-sighted enough to realise this before the Bill was passed and make the necessary change it would have been open to question—if the amendment had been accepted—whether we would then have been able to change the scheme and thus give practical effect to the amendment made to the clause. In such circumstances the victims thereby disbarred from benefiting from structured settlements would no doubt have been quick to inform the noble Lord of their feelings when they learnt that he had been the sponsor of the amendment that had the effect of excluding them.
Another example might be where it was necessary to make a minor change to the scheme in response to external factors over which we had no control. An amendment to the Channel Tunnel Order making a minor change to territorial limits is a case in point. Unless we retained a power to amend the 1990 scheme we might be unable to make the change necessary to ensure that someone criminally injured in a part of the tunnel or control zones not previously regarded as part of Great Britain was able to qualify under the scheme. That is why the amendment is not acceptable. It must be clear beyond doubt that we have a power to change the 1990 scheme when needs dictate and I accordingly ask for the noble Lord's indulgence not to press the amendment and to see reason in my argument.
Lord Macaulay of Bragar: The noble Baroness can have my indulgence any time she wishes. I am grateful for her response. However, I find it self-contradictory. Clause 11 (2) says,
"The arrangements for compensation for criminal injuries in operation immediately before the passing of this Act ('the current arrangements') shall continue in force until the date on which the Scheme comes into force ('the commencement date')"—
namely, the projected date of 1st April, 1996. Having put that on the face of the Bill, a free hand is given to the Secretary of State in Clause 11(3) which says,
"At any time before the commencement date, the Secretary of State may make such alterations to the current arrangements as he considers appropriate".
I wonder whether Clause 11(3) is necessary. It is no doubt a matter for legal debate but for the life of me I cannot see how Clause 10 and Clause 11 can be reconciled. I shall read with interest what the noble Baroness said and no doubt we can return to the matter at the Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Windlesham Lord Windlesham had given notice of his intention to move Amendment No. 72:
Page 7, line 17, after ("date") insert ("or before the date one month after the passing of this Act, whichever is the earlier.")
The noble Lord said: This amendment was debated yesterday so there is no need to speak to it again. But I give notice that I shall have some concluding remarks on Clause 12 stand part.
Clause 11 agreed to.
Clause 12 [Short title and extent]:
On Question, Whether Clause 12 shall stand part of the Bill?
Lord Windlesham: There is one feature of the Bill, which when enacted may be cited under Clause 12 as the Criminal Injuries Compensation Act, which has puzzled me. I refer to the absence of any mention whatever throughout the Bill of the Criminal Injuries Compensation Authority. That will be the public body which next April will succeed the present Criminal Injuries Compensation Board and will have the responsibility for administering a very large public undertaking. It will have a staff of more than 500 people and the estimated total of the public funds which it will handle over the five years from 1996 to 2001 is £1.7 billion.
I inquired of the noble Baroness what was to be the status of this new authority. She replied that it had been decided that it would be a non-departmental public body rather than an agency. She drew my attention to the thinking that had been set out in the White Paper—Cmnd. 2434—in 1993 which preceded the introduction of the original tariff scheme in 1994 and said that that reasoning still stood. On looking at the extract from the White Paper, it rehearsed a number of alternative forms of status, including a non-departmental public body, an agency of government or bringing the administration within central government. The White Paper said that that option had been discounted because the Government's policy is to devolve functions rather than to take on new ones. It said of agency status that it would have brought the administration of the scheme closer to government than is the case now when the board has national departmental public body status.
That status is entirely appropriate in many ways. It is the same status that the Parole Board has by statute. It is the same status that the new Criminal Cases Review Commission, which was enacted only earlier in this Session, has; and, indeed, it was the status by statute which this very scheme had when it was enacted originally in 1988 in the Criminal Justice Act, which, as we all know, was never implemented. In each case those public bodies were to be incorporated bodies contained in statute. Yet in this Bill there is no mention of the Criminal Injuries Compensation Authority.
I have made some inquiries as to what form it is expected to take. Will the authority have members? Boards and authorities have members. The answer is that it will not. Will it have a chairman? The answer is that it will not. Who, therefore, will administer this huge undertaking? The answer is that civil servants will administer it. To whom will they be responsible? Nominally, there is an authority, but it is invisible. It
732
does not appear to have any identifiable form at all. So may I leave the noble Baroness with my final words at this stage of the Bill. Does this status have any meaning at all, or is it misleading Parliament and the public to call it a public authority? If the case is that compensation should be handled by central government and civil servants as a department of government, why not say so?
Baroness Blatch: My noble friend poses a number of questions. He is correct that the only reference to the authority is not on the face of the Bill but is in fact included in the scheme. I shall take all of the questions posed by my noble friend. I shall give him a full reply and copy it to all interested Peers.
Clause 12 agreed to.
Schedule agreed to.
House resumed: Bill reported with amendments.

Charities (Amendment) Bill
7.8 p.m.
Baroness Rawlings: My Lords, I beg to move that this Bill be now read a second time. I am very pleased to introduce this Bill to your Lordships' House following its consideration in another place. The Bill arises out of the recommendations of the deregulation task force and seeks to add one subsection to Section 96 of the Charities Act 1993. This is a small but very worthwhile change. It has the support, too, of the National Council for Voluntary Organisations. The effect will be to enable the Charity Commission to direct that for all or any of the purposes of the Act two or more charities with the same trustees shall be treated as a single charity.
This country can rightly be proud of its long tradition of charitable work and of charitable giving. As Saint Paul said in his First Epistle to the Corinthians: Faith, hope and charity, but of these three, charity is the greatest. But charity, like anything else, must be efficient to be effective. So an effective framework of law which sets a sensible balance between regulation and freedom from requirements is necessary, taking into account the widely differing circumstances of different charities.
What is now the Charities Act 1993 represents an important updating of that framework, including as it does some strengthening of the powers of the Charity Commission to protect charitable property and to put charity accounts and their scrutiny on a modern statutory footing. That accounting framework will shortly be brought into force. My noble friend may wish to comment at a later stage of this debate to bring your Lordships up-to-date on the Government's progress.
Change is by no means confined to the statutory framework in which charities operate. The Charity Commission is also undergoing a significant programme of modernisation with increasing effort going into the support of good, charitable practice. New procedures are being put into place to monitor the accounts and other information that will be submitted under the new accounting framework. There will also be a new senior

733
management structure following a recent review. It is against that backdrop that this Bill seeks to make a slight change to the way in which the Charity Commission can operate in relation to charities and the way in which trustees can report to the commission.
In most cases charities are operated as a self-standing organisation by a group of trustees who do not meet to run any other charity. However, there are circumstances where the same group of trustees are responsible for a number of charities and some measure of joint administration would be entirely sensible. It is exactly for such circumstances that this Bill is envisaged. When a group of trustees see it to be appropriate, they will be able to approach the Charity Commission and ask it to make an order—let us call it a unifying order—to fit the particular circumstances. This has the potential to avoid a lot of unnecessary work where it could not be justified. The provision is not specific to any particular class of charity other than the requirement for all those concerned to have common trustees. But I understand that the new power would be of particular advantage in relation to charities administered within the National Health Service.
There are over 60,000 such charities in the hands of the health service bodies; health authorities, trust hospitals and similar. Such bodies are trustees for all the charities they administer, which can be as many as several hundred. The need for this provision will become particularly important once the requirements of the charity accounting framework are in force because, as matters stand at present, a separate annual report and accounts would have to be submitted to the Charity Commission for each and every charity in the care of the health service body.
Under the new power proposed in this Bill each body would be able to submit a single report and set of accounts in respect of all the charities in its care. This will save everyone a great deal of work, time and money. However, I hasten to reassure your Lordships that the separate accountability for the funds of each component charity in a group formed under this power would remain. Indeed, use of the power would not form a combined charity at all, but would simply enable each group to be treated as a single charity. No change would be made to the legal status of each charity in the group. Money raised or donated to a particular component charity would have to remain there or spent by the charity in accordance with its own trust deed and the terms of the donation under the provisions of the general law on trusts.
There is an important if not complicated point on excepted charities. The Charity Commission has given an assurance to charities which are excepted from the need to register. They would not be forced, under a unifying order, to link them with a non-excepted charity and thereby requiring the excepted charity to register. Indeed, that is a matter of law since the power to register an excepted charity is only exercisable by the Charity Commission at the express request of the excepted charity.
734
During the debate on this Bill in another place a question was raised about whether this Bill would allow for the situation where one charity is administered by another charity as trustee. The view taken by the Charity Commission was that this circumstance is covered by the existing power in Section 96(5) of the 1993 Act. The commission will be pleased to respond to any individual inquiries from charities who might consider seeking to have the power in Section 96(5) or the power that this Bill proposes to create, as Section 96(6).
It was said that F. E. Smith, later Lord Birkenhead, after a very complicated case, which he summed up brilliantly as usual, flashed back when the judge admitted that he was none the wiser than when he started. "Possibly not, my Lord, but far better informed". I have tried this evening to explain with some care a rather complicated matter why this Bill has been drafted and how it will be used to the clear advantage and benefit of charities and therefore of their beneficiaries. It is a very short and straightforward measure. If I can reassure your Lordships further on any matter, I shall be pleased to do so. I beg to move.
Moved, That the Bill be now read a second time.—
(Baroness Rawlings.)
7.16 p.m.
Lord Meston: My Lords, we all thank the noble Baroness for her introduction of this Bill which has left us all better informed. It is particularly helpful to have a proper exposition at Second Reading of what this Bill does, and does not, seek to achieve since it did not have a Second Reading in another place, only a Committee stage, which it is not altogether easy to follow.
I am not a charity lawyer: they are few and far between and tend to be very clever people. The only case which I had concerning a charitable trust required me to carry so many books to court that I resolved never to touch that area of the law again.
The understanding of the House is that the Bill is merely enabling and will allow for a limited but useful rationalisation of the treatment of certain charities; namely, only those which have common trustees. It is a Bill which appears to have the support of the NVCO and, as the noble Baroness explained, it is intended to reduce the administrative burden on the Charity Commission.
Faced with such an innocuous and simple Bill, one tries hard to resist any suspicions of hidden motives and to dismiss any fears of potential abuse. I believe that that is quite easily done in this case, but it is not altogether possible to escape completely some anxiety which comes perhaps merely from ignorance as to how the powers in this Bill will be used in practice. There is no guidance on the face of the Bill, but I gather that its main use will be to allow for the consolidation of accounts without, it is hoped, diminishing the accountability of trustees or diminishing proper scrutiny of the operation of charities.
I found reassurance from the clear statement made by the Minister in another place that a unifying direction under this Bill would still require two separate funds to be held for their separate purposes as is required by

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ordinary trust law. It is also reassuring to appreciate that any direction made under this Bill would be variable or revocable under Section 90 of the 1993 Act. I also assume that any direction made under this Bill will lapse as soon as the charities concerned cease to have common trustees.
Until I heard the noble Baroness explaining how it is expected that this matter will work in practice, I had understood that the initiative for a direction under it would come from the Charity Commissioners. I was going to express the hope that they would establish a procedure for giving advance notice of any proposed direction. However, it seems more likely that in practice the trustees themselves will initiate a request for a direction. That leaves one wondering what criteria they will have for assessing whether or not to exercise the discretion they will be given under the Bill, if it is enacted. There is no guidance on the face of the Bill and I have not read any so far. I hasten to say that those remarks are not in any way meant to be criticisms of the Bill. From these Benches, we wish the Bill well on its way to the statute book.
7.20 p.m.
The Earl of Kinnoull: My Lords, I apologise for not having put down my name to speak. I congratulate my noble friend Lady Rawlings on the clarity with which she outlined the Bill. One is, indeed, far better informed.
My reason for intervening briefly is that, like many Members of your Lordships' House, I am a trustee of a charity. I am a trustee of a fishermen's mission. I know from experience that quite a few very old charities have gone into abeyance because there are no longer any beneficiaries who would be entitled to benefit from the charity. The funds therefore stand static. It is difficult and costly to merge one charity with another.
I wonder whether the Bill is a clever way of enabling the trustees of a very vibrant charity, such as that which I am happy to represent, to become (with the permission of the Charity Commissioners) the trustees of a charity in abeyance. The charities could therefore merge. That would be a tremendous development for charities because in practice some charities with an ancient history no longer operate.
7.21 p.m.
Lord McIntosh of Haringey: My Lords, clearly the Bill's objectives are admirable. I am strongly influenced not only by the excellent introductory speech of the noble Baroness, Lady Rawlings, but also by the fact that the National Council for Voluntary Organisations is very much in favour of the Bill. The desirability of avoiding multiple small applications and their control by the Charity Commission is clear and is an admirable concern. I have had experience of merging one charity with another. Despite the speed with which we wished to proceed and the expertise available to us, it took a couple of years from beginning to end before we achieved it—and that was with the complete agreement of everybody concerned. If that process can be made easier by the Bill, so much the better.
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A few questions occurred to me only during the debate because I have been somewhat occupied on other matters until now. Clause 1, the substantive clause, provides that the commissioners may direct that two or more charities shall be treated as a single charity. However, it is not clear whether they will be encouraged to do so on the application of those charities or whether they may do so off their own hat. Who initiates the process of a direction in such a case?
We are told that this is fundamentally a Bill about charitable funds managed within the National Health Service. It allows charitable funds managed by a National Health Service trust, health authority board or board of special trustees within the NHS to be registered collectively. The history of the health service under this Government has been one of constant reorganisation, with the creation and abolition of regional, district and area health authorities, and the creation of trusts. Whatever one may say about the National Health Service, it certainly has not been administratively stable. Indeed, some of the things that have happened within the NHS will not, I hope and believe, survive a change of government after the next general election.
What is the position when the composition, authority, area or responsibility of an NHS trust, board of special trustees or health authority changes at any time, whether under the present Government or any other government? In other words, is this an irreversible process of amalgamation or is it reversible at any time and, if so, on whose initiative and by whose authority? Those are not exactly small points but they are the points that occur to me after a rather cursory examination of what is a simple and no doubt desirable Bill.
7.25 p.m.
The Earl of Courtown: My Lords, I wish to compliment my noble friend Lady Rawlings on bringing this Bill before the House and on speaking so persuasively in its support.
The Government support this measure. We see it as an entirely helpful improvement to the powers of the Charity Commission. Many charities will have no need of the new power proposed in the Bill; but many should benefit from its use. I do not believe that any interests will be damaged by the Bill. While making things easier for charities, use of the power should not damage the most important interests of proper accountability of charities. Indeed, in that a group of charities treated as a single charity under this power will amount in total to a larger whole, they may be subject to more effective scrutiny once the new charity accounting framework in Part VI of the Charities Act 1993 is in force.
Your Lordships may appreciate a brief report on progress in implementing that measure. It is now intended that Part VI will come into force on 1st March next year, and my noble friend Lady Blatch will very shortly be laying regulations as to the form of accounts and reports that will be required from charity trustees, auditors and independent examiners. This follows very careful preparation, including detailed workshop discussions with many practitioners and a large-scale consultation in which over 15,000 copies of the consultation document were sent out. In questionnaire

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responses, 71 per cent. of respondents said they supported the proposed charity accounting framework as a whole and only 13 per cent. opposed it. We have also taken very careful account of the recommendations of the deregulation task force on charities, and we have accepted its proposals on increases to the financial thresholds within Part VI and to introduce a new "light touch" reporting regime for the smallest charities, which is those under £10,000 income or expenditure.
The noble Lord, Lord Meston, mentioned the unifying direction. That is a matter for the Charity Commissioners' direction. It might not be suitable if, for example, charities need separate registration to facilitate fundraising or if the objectives of the charities are totally different.
The noble Lord, Lord McIntosh of Haringey, made the same point and I hope that I have answered his question. In addition, the noble Lord also asked whether
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the directions would be irrevocable. Under Section 90(1) of the 1993 Act any direction given by commissioners may be varied or revoked by a further direction. It is my understanding that that can come either from the trustees or the commissioners. If I am incorrect, I shall let the noble Lord know.
The Bill now complements the new accounting regime and makes a most useful improvement to the powers of the Charity Commission which the Government are happy to support.
Baroness Rawlings: My Lords, I am most grateful for the support that has been expressed for this measure. I am grateful to both the noble Lord, Lord Meston, and the noble Earl, Lord Kinnoull, for their contributions. I hope that with such encouragement the Bill will achieve a successful passage. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at twenty-nine minutes past seven o'clock.