§ 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 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 674 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
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.
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.
676 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 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;
- (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 679 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 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 680 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 682 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 683 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 684 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 685 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, 152.686
|Division No. 1|
|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.|
|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.|
|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.|
|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.]|
|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.|
|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.687
§ 4.6 p.m.
§ 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 688 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 689 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 690 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) 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.691
§ 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.692
§ 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 693 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 694 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 695 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 696 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, 697 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.
698 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|
|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.|
|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.
|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.]|
|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 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".701
§ 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 702 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 704 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 Sandwellmoved 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 706 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.707
§ 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 708 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 Sandwellmoved Amendment No. 46:
§ Before Clause 4 insert the following new Clause—