§ (".— (1)Where a decision has been made by a person appointed by a Scheme manager under section 3(4)(a) or by a claims officer appointed under section 3(4)(b), an applicant may apply for a review of that decision unless—
- (a) the decision was itself made on a review under this section or
- (b) the decision was made pursuant to a direction given on appeal under section 5 below.
§ (2) Any such review shall be conducted by a claims officer or other person more senior than the claims officer or other person who made the decision.
§ (3) The Scheme shall include provision as to time limits and methods of application for a review and as to notification to the applicant of the outcome of the review and of the reasons for the decision.
§ (4) In particular, an applicant may apply for a review of the following decisions made by a claims officer—
- (a) not to waive any time limits in the Scheme;
- (b) to refuse or withhold an award under the Scheme (including such decision made on reconsideration of an award);
- (c) to make an award under this Scheme including—
- (i) a decision to make a reduced award, whether or not on reconsideration of an award;
- (ii) a decision to place a particular injury under a particular description within the Tariff;
- (iii) a decision to place a particular injury at a particular Tariff level;
- (iv) a decision as to the amount payable by way of an additional amount for loss of earnings, special expenses or fatal injury;
- (d) not to re-open a case under the Scheme; or
- (e) to seek repayment of an award under the Scheme.")
§ The noble and learned Lord said: I say at the outset that what I propose to say in relation to this amendment applies in its entirety and rather more forcefully to Amendment No. 48. I understand that it may be for the convenience of the Committee for the two debates to remain separate but I can spare the Committee a further speech on Amendment No. 48.
§ Yesterday the Committee debated which matters should be included in the Bill and which could properly be left to the scheme. Indeed, some of our debates today have touched on the same theme. At this stage I should declare an interest. The Council on Tribunals, which I have the privilege to chair, is concerned about the provisions for appeal and review.
The argument applies with much greater force to the provisions for appeal rather than those for review. However, both provisions are part of the judicial process. The Franks Committee, as long ago as 1957, declared at paragraph 40:
We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration".
§ I do not believe today that anyone would seek to challenge that classification. It is our view that provisions relating to the judiciary and the judicial process should be in the body of the Bill and should not be left to the discretion of the Executive, whether or not there is a measure of parliamentary control over subordinate legislation.
§ Sittings of the adjudicators—they are part of this too—are sittings of a court of law. Provisions to establish a judicial process should be made by Parliament in a statute and should not be left to the Executive.
§ On behalf of the Council on Tribunals, I express appreciation to the Government for including in Clause 5 the bringing of the adjudicators within the supervision of the council. That is as it should be and I readily pay my tribute to the Government for what they have done. But it is not a substitute for establishing the procedure in the Bill.
In its annual report for 1992–93—I make no apology for reminding your Lordships of a quotation, part of which I used on Second Reading—the council said:
We emphasise here, as we have in the past, that when establishing new tribunals, the Government should give due consideration to the appropriate legislative division between primary and secondary legislation. To establish a new tribunal by statutory regulation, however clear the legislative intention, does not accord with current practice. Establishment of a tribunal by Act of
Parliament emphasises the tribunal's independent standing which is appropriate for a body exercising adjudicative functions in relation to the statutory rights of individuals".
§ It is for Parliament and not for the Executive to decide on the constitution of the judiciary. For that purpose subordinate legislation, even by affirmative resolution, is not, in my understanding, within the constitution.
§ As regards Amendment No. 46, the provisions for review are part of what is intended as a hierarchy of appeals which should equally be included within the statute. As I say, I accept at once that the argument is not nearly as strong in relation to Amendment No. 46 as it is in relation to Amendment No. 48. I hope that on reflection the noble and learned Lord will feel that this is a matter which goes to the root of constitutional practice and to the whole doctrine of separation of powers. I hope that this matter will be reconsidered. I beg to move.
§ 5.45 p.m.
§ Earl Russell
I am very glad indeed that the noble and learned Lord tabled this amendment, which draws attention to some fairly substantial problems which we may encounter later if we do not take thought about them now.
The noble and learned Lord dealt with the problem of the distinction between the spheres of primary and secondary legislation. But we need to think also about the sphere of judicial discretion. I am aware that a formula may attempt to reduce the area of judicial discretion but in the case of the Child Support Act we have already seen that when that is done it may give rise to some quite acute problems and may on occasion inadvertently create severe injustice.
I note that the amendment deals with a decision to place a particular injury under a particular description within the tariff. I am glad that that point has been raised because it is the sort of matter with which a formula cannot cope adequately. I have in mind here a friend of mine who suffered an injury at such a point that it is a matter of debate as to whether he lost a foot or a leg. To say that that must be dealt with simply on one side of the tariff or the other shows an inflexibility and a lack of attention to evidence.
There is also a problem about whether the nature of the injury may be exactly the same for one person as it is for another. I have in mind the case in a detective story by the late Cyril Hare, otherwise his Honour Judge Gordon Clark, in which a judge, driving away from the assizes, inadvertently ran over a pedestrian. He was in a state of some anxiety until he learnt that the injury was only the destruction of the end joint of the little finger. The satisfaction lasted only until he discovered that the person concerned was the best concert pianist in England.
That is the sort of case I have in mind when I say that a flat rate tariff without any area for judicial discretion may not take into account adequately the fact that an injury is not quite identical to one person as it is to another. If the scheme is not to break down totally—and in this Chamber we must try to make legislation work 711 —it is vitally important that there should be a provision for review which allows for the exercise of real discretion based on a hearing of the evidence.
§ Baroness Blatch
We strayed slightly from the amendment during the latter part of the debate. I should like to make two points on the pianist who might lose even a small part of one finger which disables him in his career. First, if such a person were the best pianist in the land, it would be extraordinary for him not to have an insurance which provided for just such an injury. Secondly, it is certain that future earnings would be taken into account and that compensation would be reflected in the loss of earnings and, possibly, loss of pension.
Clause 4 of the Bill requires the scheme to include provision for reviews of decisions taken on claims for compensation and for such reviews to be carried out by a person other than the person who took the original decision. The proposed new clause would place on the face of the Bill detailed provisions concerning the circumstances in which a review may or may not be requested and on what decisions, and the requirement for a review to be carried out by a person more senior to the person who took the original decision. It would also place on the face of the Bill a requirement for the scheme to set time limits for requesting reviews and procedures for such requests and for notification of the outcome. We believe that those details are not appropriate for the face of the Bill and that some parts of the proposed new clause are misconceived.
Our intention is that under subsection (1) of Clause 4 an applicant will be able to request an administrative review by the authority of its original decision on his or her claim. This new feature was introduced in the earlier tariff scheme with a view to delivering decisions quickly, cutting out unnecessary appeals, and relieving some of the pressure on the appeals process. Reviews will also help towards quality control. Applicants will have to have been through the review process before formally appealing. There will be a time limit on applications for review and we propose to stick to the 90 days used in the earlier tariff scheme.
Under subsection (2) of Clause 4 the review will have to be carried out by someone other than the person who took the original decision. The reviewed decision may confirm the original decision or substitute a new decision. I can assure the Committee that it is our intention that the scheme will provide, as the 1994 tariff scheme provided, that reviews must be carried out by someone senior to the person who took the original decision. Indeed, it would undermine the purpose of the procedure to do otherwise.
As I said, the proposed new clause would introduce into the Bill prescriptive and technical details which are more appropriate to the scheme itself. The Bill, as I have made clear, is not intended to set down the details of the scheme. It aims to provide a power to create the scheme and set its broad shape, leaving the details to be set out in the scheme. Those who have seen the draft scheme will know that the rules of the review procedure are detailed. The various matters which the scheme describes as reviewable, cover in effect any decision which a claims officer might taken on a claim. As the 712 Committee knows, the terms of the scheme will require Parliament's approval. But if, for some unforeseen reason, it was necessary to amend these or some other details of the scheme, we do not want to have to amend legislation. Such an unwieldy process would just make for administrative complexity and delay.
We are aiming for simplicity in the language of the scheme, wherever possible, to help claimants understand it. The more the terms of the scheme consist of legal language dictated by the terms of the legislation, the more inaccessible the scheme will be for the ordinary victim.
As I have said, it is our firm intention that any review be undertaken by someone senior to the person who took the original decision. By that we mean senior in rank. The enhanced tariff scheme will make that clear. However, subsection (2) of the proposed new clause would not secure that as it does not say what is meant by the phrase "more senior than". Is it someone more senior in age, senior in length of service, senior in rank or senior in experience? The Bill itself does not refer to a hierarchical body which might imply some definition of seniority. The scheme, however, will make it clear that the claims officers will be working for an established body—namely, the Criminal Injuries Compensation Authority—in which a hierarchical structure will be recognised.
The provision in subsection (3) of the proposed new clause, for the setting of time limits for applications for review, is unnecessary as Clause 3(1)(f) of the Bill already provides a general power to set time limits.
The matters against which an appeal may be made, set out in subsection (4) of the amendment, are in effect set out in the draft scheme. But we consider that the proposed new subsection (4)(c)(iii) (appeal against a decision to place a particular injury at a particular tariff level) is misconceived as it would imply a right of appeal against the tariff itself, which would first have received Parliament's approval. Of course claimants will be able to apply for a review on the grounds that their injury should have been assigned to a different injury description with a higher tariff payment. But that particular provision would be a recipe for any number of appeals which would be outside the appellate body's jurisdiction as it would have no authority whatever to change the tariff.
I have two further points to make. The first is in response to the noble Earl, Lord Russell, and is most important. Even given the number of descriptions that we have set down in the tariff so far and which may soon be approved by Parliament, it still may be possible to have an injury which does not fall neatly within any of those categories and to which the board deems a new description must be applied; or, indeed, the board may decide that it should fit into a particular category and a particular band. In such a case, it would be for the authority to make the determination. If necessary, that would have to be presented to the appellate body which could make an interim payment to the claimant while making a recommendation to my right honourable friend the Home Secretary. He would then present Parliament 713 with an amendment to the scheme. It would be for Parliament to approve the scheme, if it was deemed necessary.
Secondly, I should like simply to spell out the review system. As was said earlier, the Secretary of State remains responsible for the scheme itself but not for the individual decisions taken. The process then allows for an applicant to have an application considered and determined by the authority. If the applicant remains dissatisfied, he can request a review by a more senior officer. If he continues to be dissatisfied, he can then appeal to the appellate body. If the applicant remains unhappy, it is possible as a very longstop to resort to judicial review. If the applicant believes at any time that the administrative process has not been appropriate or that there has been some maladministration, then that person would come under the jurisdiction of the ombudsman with whom we shall be dealing in relation to a later amendment.
The roles are distinct. The appeals system is fair; indeed, it is a very sophisticated system. I also believe that we have a mechanism in place which will be subject to parliamentary approval to deal with those anomalous cases which come before the board from time to time and which do not fit neatly into the categories set out in the tariff of the scheme.
§ Lord Archer of Sandwell
I must tell the noble Earl, Lord Russell, that his intervention would have been a powerful contribution to some of the issues that we debated yesterday. I hope that he will be able to participate when those debates return to the Chamber on Report. They are important themes in the Bill.
I turn now to the Minister's response. I do not believe that I introduced the amendment very well. I accept that that was my fault. However, the point of issue is not the details of the review scheme. As schemes go, it is not a bad scheme. We were faced with the difficulty of trying to bring into the Bill the essentials of what was in effect an appellate scheme, leaving the details outside the Bill. As with some of our other amendments, it was not an easy task. Perhaps we did not do it very well.
Similarly, I appreciate that the Minister's brief was prepared in advance of the debate. However, I thought that I said enough on Second Reading to indicate what was really in our minds. The points in issue were not referred to in the Minister's response. We are very largely agreed on that. What is in issue is that a judicial process should be included in a statute and not in secondary legislation. It should not be left to the Executive to decide on the functions and constitution and powers of the judiciary. It is a constitutional point that we are making.
I wonder whether the noble Baroness would have used the same arguments if we were dealing with an appeal to the High Court and we were setting up a separate division of the High Court for the purpose of hearing the appeal. What troubles me is that I have a suspicion at the back of my mind that she would have done so, because from the way in which the mind of the Home Office seems to be working at the moment that could well have been in her brief. But obviously I have 714 totally failed to make clear to the noble Baroness what it is that is troubling us and for that I accept full responsibility.
What we are troubled about is the whole business of the separation of powers; what we are troubled about is the Executive making provision for judicial hearings about complaints about the Executive. There is no point in my going on at this stage. I am quite happy, if the noble Baroness would care to have a private conversation, to discuss this with her, with or without her officials. It is something to which we shall return, but this is obviously not the occasion to deal with it. For the moment, I beg leave to withdraw the amendment.
§ 6 p.m.
§ Baroness Seear
Before the noble and learned Lord sits down I wish to say that we on these Benches strongly support the point he has made about administrative action where judicial action is required and the enormous importance of the separation of the powers.
§ Lord Archer of Sandwell
I am most grateful to the noble Baroness for that. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Reviews]:
§ [Amendment No. 47 not moved.]
§ Clause 4 agreed to.
§ Clause 5 [Appeals]:
§ Lord Archer of Sandwellhad given notice of his intention to move Amendment No. 48.
§ Page 3, line 36, leave out from beginning to end of line 8 on page 4 and insert—
- ("(1) Any applicant who is aggrieved by the outcome of a review under section 4 may appeal to the Criminal Injuries Compensation Appeals Panel ("the Panel").
- (2) The Panel should consist of adjudicators appointed by the Secretary of State, who shall be barristers or solicitors of at least 5 years standing, and the Secretary of State shall appoint one such adjudicator to be Chairman of the Panel.
- (3) Appeals to the Panel shall be determined by a tribunal of three adjudicators.
- (3A) Members of the Council on Tribunals shall be entitled to attend all oral hearings.
- (3B) The Scheme shall include provision as to the method of appealing, the procedure to be adopted prior to and at the hearing of appeals (including the circumstances under which oral representations are to be made), time limits, the notification of appeals, the giving of reasons for decisions, and for the appointment of staff by the Secretary of State for the purpose of administering the appeal system.").
§ The noble and learned Lord said: In introducing Amendment No. 46 I indicated that the arguments were substantially similar to those relating to Amendment No. 48. I would only make the point that those relating to Amendment No. 48 are stronger and clearer as regards the appeals system. Amendment No. 48 is therefore a stronger amendment than Amendment No. 46. If that makes any difference to the thinking of the Government, if they see a distinction between the two, I would be happy to debate it. If they do not and if their ears are closed to the arguments, whether they relate to reviews or appeals, there seems little point in taking up the 715 Committee's time. I see from the face of the noble and learned Lord opposite that there is no distinction in the mind of the Government between the two. In the circumstances, I shall not move the amendment.
§ [Amendment No. 48 not moved.]
§ Lord Acknermoved Amendment No. 49:
Page 3, line 40, at end insert ("and—
(c) for such appeals to be determined only after oral representations by or on behalf of the applicant if the applicant so desires.").
§ The noble and learned Lord said: This is a short and simple amendment. The noble Baroness, Lady Blatch, in the course of dealing with a number of amendments said that the scheme involves a measure of rough justice. I accept that that is a fair description. There is no need for that rough justice to be rougher than is absolutely essential. It will be rougher than is essential if the applicant for compensation who wants an oral hearing is told he is not to have one because the Executive thinks it can manage to deal with the situation adequately on paper. My point is therefore a brief one. Any appeal procedure in which the applicant seeks an oral hearing should provide the applicant with such a hearing; otherwise there will be many quite unnecessary senses of grievance.
§ There is a further point. Where one is dealing essentially with a litigant in person, he or she frequently has difficulty in expressing himself clearly and in putting across to the tribunal exactly what the point is. If there is an oral hearing an experienced person should be able to discover whether or not there is a point of significance, and as was so often the case in regard to those of us who had the privilege of sitting with the noble and learned Lord, Lord Denning, in the Court of Appeal, the litigant in person who is listened to sympathetically and understandingly goes away convinced that although he or she has lost, he or she has had an adequate opportunity to put the case in hand, and goes away therefore without a sense of grievance. That is what this amendment is designed to prevent. I beg to move.
§ Lord Campbell of Alloway
I rise briefly to support the spirit of this amendment. I never had the privilege of sitting with the noble and learned Lord, Lord Denning, but I had the privilege of appearing before him on many occasions and everything that has just been said by the noble and learned Lord is more than fully justified. However, if one looks at the scheme, the question is whether this amendment, which provides for the man to feel that he has had a fair crack of the whip and to be heard, should not be incorporated into the appeals procedure under paragraphs 52 and 53. One has to draw a distinction between the other appeals under paragraph 69. In those other appeals,The appellant, the claims officer appearing on behalf of the authority and the adjudicators may call witnesses to give evidence and may cross examine them".It is almost inherent in that that the appellant in this type of rehearing should be able to be heard, and that which is implicit should be made plain in paragraph 69. The amendment which the noble and learned Lord, Lord Ackner, proposes is not a rehearing amendment; he draws a fair and perfectly proper distinction between 716 what is a kind of rehearing under paragraph 69 and the right of the appellant to be heard and to feel that he has had his say under the other paragraphs. I respectfully suggest that this is not a matter to be dealt with in primary legislation for the reasons I have given. It could be so easily addressed at a later stage of these proceedings in a proposed redraft of the scheme.
§ Lord Archer of Sandwell
If it is not presumptuous of me I rise simply to express my unqualified support for what has been said by the noble and learned Lord, Lord Ackner. I do not dissent from what has been said by the noble Lord, Lord Campbell of Alloway. It is not a matter on which I would go to the stake either way, but the important thing from our point of view on these Benches is that we wholly support the view of the noble and learned Lord, Lord Ackner.
§ Lord Rodger of Earlsferry
I assume that the reason the noble and learned Lord, Lord Ackner, has put down the amendment at this place in the Bill is that the effect would be to require such a provision to be in the scheme. Of course if it were in the scheme the noble and learned Lord would be equally happy, so I do not think it matters in which technical way one considers that. I fully understand the thinking behind the amendment. Let me say straight away that we envisage that in the vast majority of cases an oral hearing would be heard by the panel. Nonetheless, as the noble and learned Lord appreciates, his amendment goes much further and would require that in every case where it were required, requested or desired by the applicant, there should be such a hearing. That means that, however unmeritorious a case may be, there would be a requirement for such a hearing.
From his unparalleled experience the noble and learned Lord drew attention to questions which arose when he was sitting, for example, with the noble and learned Lord, Lord Denning, and where party appellants appeared. I accept that there may be such cases. I am certain that when one looks at the criteria contained in the scheme, where it is thought that there is something to be said for an appeal there will be such a hearing. However, one has also to deal with those cases where it is perfectly plain that there is nothing to be said for an appeal and that the case is completely unmeritorious and will remain so.
For example, suppose there was an unqualified admission by an appellant, accepted below and on review—one must remember that such cases would all have been reviewed—that he had provoked the fight in which he had been injured. Suppose that he appealed on the grounds that it was not proper for a reduction to be made on that basis. Self-evidently that appeal could not succeed because it would be completely wrong. Nothing said at a hearing could justify the proposition that the adjudicator was not entitled to make a reduction.
To require that if the appellant says that he desires a hearing there should be a hearing would be to expend a great deal of time and energy on a matter which could not succeed. On the contrary, it might raise hopes on the part of the appellant which could never be fulfilled.
Therefore, although I appreciate that the insistence on a hearing could in some cases have the psychological effect to which the noble and learned Lord drew 717 attention, nevertheless that would be too dearly bought. The scheme should provide for a system which deals efficiently and speedily with appeals. Time and resources should be expended on appeals which have a good chance or some chance of success rather than on those appeals which could not in their nature ever succeed.
Although I understand the reason behind the amendment I believe that it goes too far and that what is envisaged here would not work satisfactorily. Rather, we believe that it is correct that the matter should be left to the discretion of the appeals panel. Applying the approach set out in the scheme would mean that there would be oral hearings where that would have a practical effect. However, it would be wrong to give a right to such hearings even in cases where such an appeal could never succeed.
§ Lord Campbell of Alloway
Before the noble and learned Lord sits down perhaps I may ask him a question. If limited to paragraphs 52 and 53 how does what he said stand up? Under paragraphs 52 and 53, in an appeal against review under paragraph 58 one has to put in a notice of appeal and give one's reasons. In those circumstances, why on earth should not the man be entitled to appear and say something, albeit limited to his written reasons, and to elaborate on those reasons and so feel that he has been heard? This is not a question of a sifting mechanism. The noble and learned Lord seems to think that we are dealing with a sifting mechanism for restrictive trade practices or something of that kind. It is nothing like that. I hope that my noble and learned friend will look at paragraphs 52 and 53 again and give a more positive response on that narrow point.
§ Earl Russell
The noble and learned Lord has given what, on an administrative level, is a perfectly rational answer. However, he has failed to respond to the human dimension of the argument put by the noble and learned Lord, Lord Ackner. The argument that a hearing contributes to consent is a very powerful one which is within the experience of all of us. Government by consent is a much more tender plant than we often think. It is far more easily destroyed than we sometimes realise. Once it is destroyed it is not easily recovered. One sees in some neighbourhoods of some towns in some countries what the effects may be when consent is destroyed.
I admit that appeals which may have no chance of success may have a cost. I admit that that cost has to be counted. However, we also have to count the cost of what may happen if we do not give people a hearing. We in this place know quite well the financial and, on occasion, human costs of security. The costs of appeal may in some circumstances be in all ways preferable.
§ 6.15 p.m.
§ Lord Rodger of Earlsferry
Of course I accept, as I did in replying to the noble and learned Lord, that the giving of a hearing may have a psychological effect in individual cases. Nonetheless, I said, I did not believe that that was a sufficient reason for us to accept the 718 amendment, especially when it would mean that those who have good grounds for appeal are likely to have the disposal of those appeals delayed by hearings which could not serve any useful purpose and could not lead to success. I fully understand the psychological case, but we do not believe that that is a sufficient reason for proceeding in this way.
To respond to my noble friend Lord Campbell of Alloway, I have read paragraph 52, and also paragraphs 61 onwards which deal with this kind of case. It is because the grounds of appeal will be notified and can be considered that there may be cases which, it can be seen, will not succeed. I gave an admittedly extreme example of such a case. I accept that one could argue that nonetheless in such cases, for the reasons given by the noble and learned Lord, Lord Ackner, and the noble Earl, Lord Russell, one might opt for the psychologically healing effects of having such a hearing. However, for the reasons I have given, the Government do not believe that those effects are sufficient to make this a desirable amendment.
§ Lord Ackner
There is a decision of the former Vice Chancellor, Sir Edward Megarry, the name of which escapes me, in which he said that the law reports are littered with cases originally thought to be open and shut which in the circumstances turned out to be neither. The phrase "however unmeritorious, are we to allow an oral hearing?" shows a potentially closed mind by the administration.
If it is so clear from the notice of appeal that there are no valid grounds, how many minutes would it take to say to the would-be appellant "Look, Mr. Brown," as the noble and learned Lord, Lord Denning, would have done, "Your problem is that you do not have a case, because of A, B or C". How long would it take to get over that particular hurdle? With an experienced tribunal, would it take three minutes or five minutes? That is all we are arguing about—the expenditure of a matter of minutes in order to send away a dissatisfied applicant with at least the feeling that he has had his day, or his five minutes, in court. In a situation in which, as has been conceded by the noble Baroness, a system replete with rough justice—my phrase—one should bend over backwards to ensure that there is no risk of that permeating the appeals system.
It is for that reason that I moved the amendment. It is clear that the Government are insistent that they will have none of it. Therefore, I beg leave to withdraw the amendment with a view to reading the exact justification and possibly reculer pour mieux sauter at a later date.
§ Amendment, by leave, withdrawn.
§ Lord Rodger of Earlsferrymoved Amendment No. 50:
§ Page 3, line 42, at end insert ("except so far as the provision relates to functions of persons mentioned in subsection (3)(d)(ii)").
§ The noble and learned Lord said: In moving Amendment No. 50, I speak also to Amendment No. 52.
§ These amendments may seem a little obscure, but they have a simple purpose. They are intended to allow claims officers, or staff appointed by the scheme manager, to act as presenting officers at appeals.719
§ Clause 5 provides the framework for the independent appeals system that will operate under the enhanced tariff scheme. As under the 1990 scheme, and the 1994 tariff scheme, we envisage that cases will be presented to the appeals panel by presenting officers. Their job—I stress this—will be to present the facts of the case and to facilitate the appeals process.
§ We also envisage that the presenting officers will be claims officers (or staff appointed by the scheme manager). However, the Bill as presently drafted confines their functions to determining claims. These amendments will allow them to act as presenting officers as well.
§ The first amendment overcomes the obstacle in subsection 5(2) which, as drafted, specifically prohibits the scheme manager from having any responsibility for the appeal process. The amendment provides the necessary exception in respect of presenting officer duties. I beg to move.
§ Lord Macaulay of Bragar
I understand what the noble and learned Lord said about the operation of the scheme. At Second Reading we raised a question on the use of the words, "if a scheme manager is appointed". Nothing has been done about that. It has not been put the other way: that a scheme manager shall be appointed. The system which the noble and learned Lord outlined depends on the existence of a scheme manager, an appointment which is not compulsory under the terms of the Bill. I may be misreading it, but I should have thought that some consideration should be given to the words, "if a scheme manager is appointed". It could provide that a scheme manager shall be appointed.
§ Lord Rodger of Earlsferry
One never knows precisely what line the Labour Party will take on contracting out. However, I do not believe that it is wholly in favour of it. I understood the noble Lord, Lord McIntosh, to say earlier that the Labour Party would be opposed to it.
The words, "if a scheme manager is appointed" allows for the possibility of contracting out. I stress that at present there is no intention to do so. The position taken by the noble Lord, Lord Macaulay—to require a scheme manager to be appointed—would require the Government to proceed on the basis of contracting out, which I suspect that he would not wish to do at present.
§ Lord Macaulay of Bragarmoved Amendment No. 51:
§ Page 3, line 43, leave out ("may") and insert ("shall").
§ The noble Lord said: Amendment No. 51 was grouped yesterday with Amendments Nos. 21 and 35. I did not speak to it. I believe the noble Baroness will agree that I reserved any observations I had on Amendment No. 51 in order to put the argument in its chronological place. Accordingly, with the leave of the Committee, I beg to move Amendment No. 51.720
§ Baroness Blatch
Again I am baffled by the amendment. I fail to see what useful purpose would be achieved by it. All that it does is to make mandatory rather than discretionary for the scheme to include a particular provision. Making that provision mandatory adds nothing to Parliament's understanding of the Secretary of State's arrangements which have already been set out very clearly in the draft scheme which was published and circulated widely in August. Nor does it provide any additional protection either for the victims or the Government. The amendment shows a misunderstanding of the purpose of the clause concerned, which is to provide an illustration of one way in which the Secretary of State may exercise the power conferred on him by Clause 1. It would not be appropriate to lay down a mandatory requirement for which provision must be included in the scheme for ever more, whether or not it is appropriate.
Again I remind the Committee that Parliament will have the final say over the scheme and will thereby have an opportunity to approve its detailed provisions. As the noble Lord knows, it is also possible for the measure to be amended in future. I hope that the noble Lord will not feel it necessary to press the amendment.
§ Lord Macaulay of Bragar
I am grateful to the Minister for that reply. I shall read with interest what she said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Blatchmoved Amendment No. 52:
§ Page 4, line 8, at end insert— ("(d) for specified functions in relation to appeals to be conferred on—
- (i) claims officers; or
- (ii) persons appointed by the Scheme manager as mentioned in section 3(4)(a).").
§ Lord Macaulay of Bragarmoved Amendment No. 53:
Page 4, line 8, at end insert—
("( ) to ensure that at least one member appointed under paragraph (c) is trained in Scots law").
§ The noble Lord said: It is a simple amendment. It ensures that the interests of Scots law are preserved within the scheme. It ensures that at least one member appointed under paragraph (c) is trained in Scots law. The scheme is a United Kingdom scheme. We have two different systems of law. It is important that someone trained in Scots law should be part of the team.
§ As the noble and learned Lord will know, at present fatal cases are dealt with in England by English members of the board; and fatal cases in Scotland are dealt with by Scottish members of the board. The amendment is simple and ensures that that distinction is maintained. I beg to move.
§ Lord Rodger of Earlsferry
The amendment as printed on the Marshalled List refers to those people appointed under subsection(3)(c) who are members of staff. Members of staff serve administrative functions. There is no need for them to be trained in Scots law or 721 any other system of law. I believe that the noble Lord was dealing with the question of those who adjudicate upon matters. That is dealt with in paragraph (a)
Some of the members of the appeals panel will be appointed by my right honourable friend the Secretary of State for Scotland. It is envisaged that seven or eight of the appeals panel members out of a membership of between 40 and 50 will be appointed by him. I believe the noble Lord knows that the practice has always been to appoint members of the legal profession of Scotland to the scheme. It is the intention that that should continue to be the practice: that there will indeed be members of the legal profession of Scotland appointed to the new appeals panel. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.
§ Lord Macaulay of Bragar
I am grateful to the noble and learned Lord for that explanation. It is a somewhat fast ball that the amendment refers to paragraph (a) rather than paragraph (c). I hope that the undertaking that there will be a place for the special standing of the Scottish legal system within the administration of the criminal injuries compensation scheme will be noted in the appropriate places. In the light of the undertaking given by the noble and learned Lord the Lord Advocate, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 54 and 55 not moved.]
§ Lord Rodger of Earlsferrymoved Amendment No. 56:
§ Page 4, line 34, leave out ("under this section").
§ The noble and learned Lord said: This is a technical amendment. Clause 5(9) makes it clear beyond doubt that the scheme may include provision for adjudicators to reduce awards where they consider that an appeal is frivolous or vexatious. This minor technical amendment to delete the words "under this section" is necessary since appeals are not in fact determined under the Act itself, but in accordance with the provisions of the scheme which is to be made under the powers conferred by Clause 1 of the Act. I beg to move.
§ 6.30 p.m.
§ Lord McIntosh of Haringeymoved Amendment No. 57:
§ Page 4, line 34, at end insert ("and the applicant had received warning prior to the determination of the appeal that the appeal was at risk of being considered so to be").
The noble Lord said: This is a relatively minor amendment which relates to the provision under Clause 5(9) which provides for a reduction of the amount of compensation if in the opinion of the adjudicator,
the appeal is frivolous or vexatious".
§ We do not object to that; the principle is common in law and valuable. But the scheme is liable to deal with a large number of people who have little experience of the law or of the kind of procedures which the scheme will involve for them. It seems not unreasonable for the appellant to be given a warning if the appeal is at risk 722 of being considered to be "frivolous or vexatious". It is not a point of great importance, but one which the Government may wish to take on board. I beg to move.
§ Lord Rodger of Earlsferry
I am grateful to the noble Lord for raising the matter on which one may wish to reflect as to how it may be handled in practice. As the noble Lord will appreciate and as was indicated earlier on, there will be cases where the decision to dismiss the appeal will be taken at an earlier stage without a hearing. The appeal will appear to be vexatious right from the outset and therefore one will have to warn the people before they put in the appeal. In another case the fact that it was vexatious might only appear during the hearing, for example, where the appeal was based on the idea that a person had no previous conviction, whereas the claim had been determined on the basis that he had. In the course of the hearing, when it became apparent that he had a conviction and the appeal was therefore completely unfounded and he was acting fraudulently, that would be the most appropriate point at which to warn him. There are difficulties in knowing how to deal with the problem.
It seems to me that we should draw attention to the matter in the guide which will be provided for the Act. However, when people are sent the form which allows them to appeal, it might be advisable for a leaflet accompanying it to contain a warning, or for a warning to be on the face of the form about the provision. There are various ways of dealing with the point. We would wish to reflect on it and it should be dealt with administratively. We have thought about the point and will wish to consider it further to ascertain how it can best be dealt with.
§ Amendment, by leave, withdrawn.
§ Clause 5, as amended, agreed to.
§ Clauses 6 and 7 agreed to.
§ [Amendment No. 58 not moved.]
§ Clause 8 [Annuities]:
§ Baroness Blatch moved Amendment No. 59:
Page 6, line 11, at end insert—
("(3) In this section "the Criminal Injuries Compensation Scheme" means—
§ The noble Baroness said: This amendment fulfils the promise made in another place to extend the benefits of structured settlements to applicants under the current, common law damages scheme (or any previous version of it) whose claims have not yet been settled.
§ As the Committee knows, structured settlements can be a highly advantageous way of paying compensation to victims in higher value cases. It affords them the option of receiving their award, not as a lump sum, but in the form of a stream of periodic payments under an 723 annuity. These payments will be tax-free, and can be index-linked, thereby providing guaranteed payments for life, or other specified period.
Under the Bill as it stands, that facility would only be available to claimants under the new, enhanced tariff scheme to be made under the Bill's powers. This amendment will extend that facility to claimants under the present scheme by widening the definition of the words,
the Criminal Injuries Compensation Scheme".
§ This amendment will necessitate a complementary change to the 1990 scheme to allow payment of compensation by the purchase of annuities. My right honourable friend the Secretary of State will make the necessary change to the 1990 scheme on the day this Bill receives Royal Assent. He will confirm this in the usual way by Written Statement in the other place. I beg to move.
§ Clause 8, as amended, agreed to.
§ Clause 9 agreed to.
§ Baroness Blatch moved Amendment No. 60:
§ After Clause 9 insert the following new Clause—
§ JURISDICTION OF PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION
§ "The Criminal Injuries Compensation Scheme.
§ 11B.—(1) For the purposes of this Act, administrative functions exercisable by an administrator of the Criminal Injuries Compensation Scheme ("Scheme functions") shall be taken to be administrative functions of a government department to which this Act applies.
§ (2) For the purposes of this section, the following are administrators of the Scheme—
- (a) a claims officer appointed under section 3(4)(b) of the Criminal Injuries Compensation Act 1995;
- (b) a person appointed under section 5(3)(c) of that Act;
- (c) the Scheme manager, as defined by section 1(4) of that Act, and any person assigned by him to exercise functions in relation to the Scheme.
§ (3) The principal officer in relation to any complaint made in respect of any action taken in respect of Scheme functions is—
- (a) in the case of action taken by a claims officer, such person as may from time to time be designated by the Secretary of State for the purposes of this paragraph;
- (b) in the case of action taken by a person appointed under section 5(3)(c) of the Act of 1995, the chairman appointed by the Secretary of State under section 5(3)(b) of that Act; or
- (c) in the case of action taken by the Scheme manager or by any other person mentioned in subsection (2)(c) of this section, the Scheme manager.
§ (4) The conduct of an investigation under this Act in respect of any action taken in respect of Scheme functions shall not affect—
- (a) any action so taken; or
- (b) any power or duty of any person to take further action with respect to any matters subject to investigation."
(2) In Schedule 3 to the Act of 1967 (matters not subject to investigation), insert after paragraph 6B—
6C. Action taken by any person appointed under section 5(3)(c) of the Criminal Injuries Compensation Act 1995, so far as that action is taken at the direction, or on the authority (whether express or implied), of any person acting in his capacity as an adjudicator appointed under section 5 of that Act to determine appeals.
- (a) section 3(5)(b);
- (b) section 3(7)(b);
- (c) section 5(4)(b).").
§ The noble Baroness said: During the earlier stages of this Bill we gave an undertaking, in another place, that we would consider carefully whether the administration of the new scheme should be subject to investigation by the Parliamentary Commissioner for Administration—more commonly known as the ombudsman. We concluded that it should, and this new clause gives effect to that decision.
§ We firmly intend that the new scheme should be run as effectively and efficiently as possible, and mechanisms will be built in to facilitate this. For instance, the authority will be required to set standards of performance and targets, and will have to report on how it has measured up to them in its annual report. There will also be a fully developed and effective complaints procedure, so that claimants who feel their case has been badly handled can make a formal complaint in the sure expectation that it will be speedily and properly investigated.
§ But, despite that, we accept that applicants who believe their case has been subject to maladministration should have a means of seeking external reassurance. That is why we agree that the ombudsman should be allowed to investigate such cases.
§ The ombudsman will not of course be able to investigate the merits of the decision taken in any case. That is not his role, and he is specifically precluded from doing so by the Parliamentary Commissioner Act 1967. But he will be able to investigate the administrative actions of the staff taking those decisions, and report as to whether there was, or was not, any maladministration in their handling of the case. I beg to move.
§ Lord Archer of Sandwell
This matter has already been the subject of our discussions. As the noble Baroness said, it was a suggestion made by colleagues in another place; the Government listened and the Bill has been improved. We are grateful.
§ Clause 10 [Parliamentary control]:
§ Baroness Blatch moved Amendment No. 61:
Page 6, line 34, leave out from beginning to ("the") in line 38 and insert—
("Before making the Scheme, the Secretary of State shall lay a draft of it before Parliament.
(1A) The Secretary of State shall not make the Scheme unless the draft has been approved by a resolution of each House.
(2) Before making any alteration to the Tariff or to any provision of').
§ The noble Baroness said: In speaking to Amendment No. 61, perhaps I may also speak to Amendments Nos. 63 to 66 inclusive. The amendments change significantly the extent of Parliament's control over the scheme. At present the Bill requires the Secretary of State to lay a copy of the tariff, and any subsequent alterations to it, before Parliament. It also requires the Secretary of State to lay before Parliament statements of other key provisions made by the scheme; namely, those bearing on quantum.725
§ It has been argued in another place and elsewhere that this leaves too much control in the hands of the Executive and that Parliament should retain greater control over the new arrangements. We have reflected further on this and have been persuaded by the force of those arguments. The amendments proposed therefore will give Parliament, rather than the Executive, final control over every aspect of the new scheme.
§ Under the new amendments the Secretary of State would be required to lay a draft of the whole scheme—in its entirety—before Parliament. He would not be able to make the scheme until that draft had been approved by both Houses under the affirmative resolution procedure. Thus specific parliamentary approval would be required for every aspect of the new arrangements.
§ Once the new scheme was up and running, any changes to it, however minor, would also be subject to parliamentary control. Changes to the tariff itself and to key features of the scheme would require approval by the affirmative resolution procedure, while changes to the more minor and routine features would be subject to the negative resolution procedure. We believe that that strikes the right balance. It requires Parliament positively to approve changes to the more important aspects of the scheme, while leaving Parliament the choice as to whether changes to more minor matters should go through with or without a debate and vote.
§ The amendments now make it quite clear where ultimate control over the scheme rests. The Executive will still be able to propose changes but it cannot give them effect without recourse to Parliament. I beg to move.
§ Lord McIntosh of Haringey
We anticipated this debate early yesterday afternoon when discussing the amendments moved by the noble Lord, Lord Windlesham. We have all expressed our gratitude to the Government for the concession that has been made, in that the whole of the original scheme and tariff will be laid before Parliament for the affirmative resolution procedure.
At the risk of being ungrateful, I should like to make two points. First, the Committee will be well aware that the affirmative resolution procedure is very much inferior as a form of opportunity for Parliament to debate and amend legislation than legislation on the face of the Bill. There is always a trade-off between flexibility and administrative convenience, but we have attempted to show in the course of the debate on this Bill that administrative convenience and flexibility have been put to the fore at the expense of parliamentary accountability and responsibility. We regret that. Secondly, although in the amendments moved by the Minister the original tariff and scheme—which perhaps may be termed the first shot at them—come before Parliament in their entirety, alterations come before Parliament only if they fall under the headings of Clause 10(2). Those by no means cover all of the important issues that we have debated over the past day and a half. It will come as no surprise to the Minister that our approach to Report stage will to a considerable extent consist of an attempt to persuade the House that there 726 are other important matters which ought to be included in the affirmative resolution procedure when they come forward as alterations. But, with those warnings, we are grateful for the amendments so far as they go.
§ [Amendment No. 62 not moved.]
§ Baroness Blatch moved Amendments Nos. 63 to 66:
§ Page 7, line 2, at end insert ("the Secretary of State shall lay before Parliament a draft of the provision as proposed to be altered.").
§ Page 7, line 3, leave out subsection (3).
§ Page 7, line 7, leave out ("this section") and insert ("subsection (2)").
§ Page 7, line 9, at end insert—
§ ("(4A) Whenever any other provision of the Scheme is altered, the Secretary of State shall lay a statement of the altered provision before Parliament.
§ (4B) If any statement laid before either House of Parliament under subsection (4A) is disapproved by a resolution of that House passed before the end of the period of 40 days beginning with the date on which the statement was laid, the Secretary of State shall—
- (a) make such alterations in the Scheme as appear to him to be required in the circumstances; and
- (b) before the end of the period of 40 days beginning with the date on which the resolution was made, lay a statement of those alterations before Parliament.
§ (4C) In calculating the period of 40 days mentioned in subsection (4B), any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days shall be disregarded.").
§ The noble Baroness said: I beg to move Amendments Nos. 63 to 66 en bloc.
§ [Amendment No. 67 not moved.]
§ Clause 10, as amended, agreed to.
§ 6.45 p.m.
§ Lord McIntosh of Haringey moved Amendment No. 68:
§ After Clause 10, insert the following new clause—
§ ANNUAL REVIEW
§ (". The Secretary of State shall in consultation with the body of adjudicators review annually the Scheme and the Tariff and shall lay before Parliament annually alterations to the standard amounts of compensation set out in the Tariff to reflect changes in the Retail Price Index occurring in the preceding year.").
§ The noble Lord said: Amendment No. 68 is concerned with future up-rating for inflation. In a sense, the administration of this amendment is made easier by the amendments to Clause 10 which have just been agreed. The history of the matter is a little complicated and I will not do any more than summarise it. Basically, the original tariff was based on median awards for 1991 to 1992. The Government claim that the original tariff has been up-rated by 19 per cent. from the median figures to bring it up to date. I accept that that may bring it up to date for the present time, but the proposal is that the tariff levels will be reviewed only every three years rather than every year. Therefore, the tariff will not be reviewed for inflation until April 1999, three years after the date when the scheme is expected to come into effect. Until 1999 we will still be working on the 1994 figures even though they have been updated from the 1991 to 1992 review. It is fairly clear that, whichever 727 Government are in power and however successful attempts to control inflation may be, there is a possibility that by 1st April 1999 the scheme will be out of date in financial terms.
§ We now have a provision that the original scheme, and a considerable number of alterations to it, must come before Parliament. I believe it is logical and in line with many other financial arrangements laid down in secondary legislation that the Secretary of State should, in consultation with the body of adjudicators, review the scheme and the tariff and lay before Parliament annually alterations to the standard amounts of compensation to reflect changes in the retail prices index that have occurred in the preceding year. This is commonly done. The Order Paper of your Lordships' House, if not perhaps the time on the Floor, is cluttered up with statutory instruments which update legislation for inflation. I think immediately of the assisted places scheme. That has always been updated every year, because the Government have a political interest in doing so. Surely, there is nothing exceptional or extraordinary about proposing that this scheme should also be updated every year in line with inflation. The Government would obtain better understanding of and credibility for the scheme if they agreed to this relatively minor amendment. I beg to move.
§ Baroness Blatch
We are quite happy to consult the panel as necessary or to receive their advice at any time that they wish to give it. Indeed, to reflect that we amended the Bill in another place. We have also undertaken to keep the operation of the scheme under general review, and specifically to review the tariff levels themselves every three years. We think that is quite sufficient and offers all the flexibility needed for a straightforward, tariff-based scheme. There is already a very considerable element for future inflation built into the tariff. The levels of the 1994 tariff scheme were based on previous board awards after a very generous allowance had been made for inflation. Indeed, in the event that allowance proved to be quite over generous. Those 1994 tariff levels included an element for loss of earnings and care. That has not been stripped away from the awards as the noble Lord is aware. Such elements are now to be paid separately in addition in the more serious cases. But we have not stripped those elements out of the tariff levels for the new scheme, which are the same as those in the 1994 tariff. They are therefore higher than they might otherwise have been. As such, they effectively include a significant cushion against future inflation.
There is therefore no case for reflating the tariff levels for the first three years of the new scheme's operation; nor is there any case for annual up-rating thereafter. With low future inflation, any potential loss that claimants might suffer from a three year review cannot be very great. I should also point out that where loss of earnings and special care are payable, those elements will go up automatically in line with wages and the cost of care. A very good proportion of the awards will be inflation-proofed. We believe that a three-year review is sufficient to be fair to all claimants.
§ Lord McIntosh of Haringey
Of course, the amendment does not say anything about loss of earnings payments. We recognise that loss of earnings payments will go up in line with inflation. The amendment concerns the standard amounts provided for in the tariff.
It is an extraordinary argument put forward by the Government that they have already over-provided in the existing scheme because they have included loss of earnings once and then provided for them separately a second time. In any normal business one would say that anybody who over-provides in that way and then claims, as a result of that over provision, that they do not need to think about it again for three years should go back and re-write their budget.
I was brought up working for the General Electric Company. We had a standard rule that factory prices had to go down by 10 per cent. every year: in other words, there was a constant struggle to reduce costs. I sometimes wonder what Mr. Waldegrave is doing if he is not paying attention to proceedings on the Floor of the Chamber in Parliament and the Government claim that they have been extravagant now in order to avoid uprating the payments in future years.
The Government cannot get away from that dilemma by resisting the amendment. The only honourable way for the Government to deal with the matter is to reduce the amounts to a figure which does not account for loss of earnings and then make adequate provision for uprating in the future. Perhaps Mr. Waldegrave would approve of that rather more.
I shall be interested to see whether, in the light of our discussions, there will be any changes in the revised tariff when it is put before Parliament. It is too tempting. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Repeal of the 1988 Act scheme and transitional provisions]:
§ [Amendment No. 69 not moved.]
§ Lord McIntosh of Haringey moved Amendment No. 70:
§ Page 7, line 16, at end insert ("or until 1st April 1996").
The noble Lord said: This is a rotten amendment. It is badly worded because I meant to say that the date on which the scheme comes into force should be not later than 1st April 1996 rather than saying,
or until 1st April 1996".
§ Because it is a rotten amendment, I shall not press it.
However, it provides an opportunity for me to express my gratitude to the Minister for making the scheme available and for the fact that the scheme says, in paragraph 1,
Applications received on or after 1st April 1996 for the payment of compensation…will be considered under the following provisions of this Scheme".
§ It would have been nice if that commencement date, like most commencement dates, had been included on the face of the Bill rather than in a scheme. But if the Minister confirms that it is the Government's inalienable intention that the scheme shall start not later than 1st April 1996, that will be helpful. I beg to move.729
§ Baroness Blatch
I absolutely confirm that our intention is to have the scheme up and running by 1st April 1996. Our difficulty with the amendment is that it would provide an absolute deadline in legislation. If, in its wisdom, Parliament decided not to accept the scheme and sent it away for redetermination, there would be a delay and following 1966 we would be without a scheme. It would then be impossible for an applicant to make an application because there would not be a scheme. It is a safeguard against the possibility of missing the deadline to make sure that there is a scheme in place in order for applicants to make applications.
§ Amendment, by leave, withdrawn.
§ Lord Macaulay of Bragar moved Amendment No. 71:
§ Page 7, line 17, leave out subsection (3).
The noble Lord said: Amendment No. 71 seeks to delete Clause 11 (3), which reads,
At any time before the commencement date, the Secretary of State may make such alterations to the current arrangements as he considers appropriate".
§ "Current arrangements" are defined in Clause 11 (2). I listened to what the noble Baroness said in relation to Clause 10 and am wondering whether a drafting problem exists in this regard, too. Also, should the power given to the Secretary of State in Clause 11(3) be made subject to the provisions of Clause 10? Otherwise, the Secretary of State has a free hand to do whatever he likes with the present arrangements—the common law scheme—without any parliamentary scrutiny whatever. He can walk into the House tomorrow and make an announcement that awards have been reduced to whatever level he wishes and there would be no parliamentary scrutiny of any alterations and no provision for consultation.
§ The amendment is a probing amendment. It could be more happily worded in the light of the commencement date of the new scheme. The provision seems to give the Secretary of State complete power to do what he likes without parliamentary scrutiny. As has been said more than once in the course of debates today and yesterday, that is a dangerous innovation. I beg to move.
§ Lord McIntosh of Haringey
I shall be fascinated to hear the Minister's reply to my noble friend's amendment. It occurs to me, looking at Clause 11, that subsection (2) provides that, for the first time in 31 years, the current scheme should have a statutory basis rather than being on the basis of royal prerogative. I think that should be celebrated.
§ Baroness Blatch
I had intended to refer to the past 30 years and say that the records of the various Home Secretaries have been rather good ones and it is a short time to go for the demise of the scheme.
The aim of subsections (2) and (3) of Clause 11 is to make it clear beyond doubt that there is a power both to run the 1990 scheme and to make alterations to it in the period between Royal Assent and the coming into force of the enhanced tariff scheme in 1996. If we are to continue to operate the 1990 scheme in that period—of 730 course it is essential for victims that we should be able to do so—then clearly we must also have a power to make any changes that may prove necessary. In the nature of things I cannot specify now precisely how that essential contingency power might be used because it is just that; a contingency power. But I can perhaps give two examples.
In discussion on Clause 8 earlier in Committee, I pointed out that if we were to be able to make structured settlements available to claimants under the 1990 scheme we would have to change the 1990 scheme itself to make that possible. If we had not been far-sighted enough to realise this before the Bill was passed and make the necessary change it would have been open to question—if the amendment had been accepted—whether we would then have been able to change the scheme and thus give practical effect to the amendment made to the clause. In such circumstances the victims thereby disbarred from benefiting from structured settlements would no doubt have been quick to inform the noble Lord of their feelings when they learnt that he had been the sponsor of the amendment that had the effect of excluding them.
Another example might be where it was necessary to make a minor change to the scheme in response to external factors over which we had no control. An amendment to the Channel Tunnel Order making a minor change to territorial limits is a case in point. Unless we retained a power to amend the 1990 scheme we might be unable to make the change necessary to ensure that someone criminally injured in a part of the tunnel or control zones not previously regarded as part of Great Britain was able to qualify under the scheme. That is why the amendment is not acceptable. It must be clear beyond doubt that we have a power to change the 1990 scheme when needs dictate and I accordingly ask for the noble Lord's indulgence not to press the amendment and to see reason in my argument.
§ Lord Macaulay of Bragar
The noble Baroness can have my indulgence any time she wishes. I am grateful for her response. However, I find it self-contradictory. Clause 11 (2) says,The arrangements for compensation for criminal injuries in operation immediately before the passing of this Act ('the current arrangements') shall continue in force until the date on which the Scheme comes into force ('the commencement date')"—namely, the projected date of 1st April, 1996. Having put that on the face of the Bill, a free hand is given to the Secretary of State in Clause 11(3) which says,At any time before the commencement date, the Secretary of State may make such alterations to the current arrangements as he considers appropriate".I wonder whether Clause 11(3) is necessary. It is no doubt a matter for legal debate but for the life of me I cannot see how Clause 10 and Clause 11 can be reconciled. I shall read with interest what the noble Baroness said and no doubt we can return to the matter at the Report stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.731
§ Lord Windlesham had given notice of his intention to move Amendment No. 72:
§ Page 7, line 17, after ("date") insert ("or before the date one month after the passing of this Act, whichever is the earlier.")
§ The noble Lord said: This amendment was debated yesterday so there is no need to speak to it again. But I give notice that I shall have some concluding remarks on Clause 12 stand part.
§ Clause 11 agreed to.
§ Clause 12 [Short title and extent]:
§ On Question, Whether Clause 12 shall stand part of the Bill?
§ Lord Windlesham
There is one feature of the Bill, which when enacted may be cited under Clause 12 as the Criminal Injuries Compensation Act, which has puzzled me. I refer to the absence of any mention whatever throughout the Bill of the Criminal Injuries Compensation Authority. That will be the public body which next April will succeed the present Criminal Injuries Compensation Board and will have the responsibility for administering a very large public undertaking. It will have a staff of more than 500 people and the estimated total of the public funds which it will handle over the five years from 1996 to 2001 is £1.7 billion.
I inquired of the noble Baroness what was to be the status of this new authority. She replied that it had been decided that it would be a non-departmental public body rather than an agency. She drew my attention to the thinking that had been set out in the White Paper—Cmnd. 2434—in 1993 which preceded the introduction of the original tariff scheme in 1994 and said that that reasoning still stood. On looking at the extract from the White Paper, it rehearsed a number of alternative forms of status, including a non-departmental public body, an agency of government or bringing the administration within central government. The White Paper said that that option had been discounted because the Government's policy is to devolve functions rather than to take on new ones. It said of agency status that it would have brought the administration of the scheme closer to government than is the case now when the board has national departmental public body status.
That status is entirely appropriate in many ways. It is the same status that the Parole Board has by statute. It is the same status that the new Criminal Cases Review Commission, which was enacted only earlier in this Session, has; and, indeed, it was the status by statute which this very scheme had when it was enacted originally in 1988 in the Criminal Justice Act, which, as we all know, was never implemented. In each case those public bodies were to be incorporated bodies contained in statute. Yet in this Bill there is no mention of the Criminal Injuries Compensation Authority.
I have made some inquiries as to what form it is expected to take. Will the authority have members? Boards and authorities have members. The answer is that it will not. Will it have a chairman? The answer is that it will not. Who, therefore, will administer this huge undertaking? The answer is that civil servants will administer it. To whom will they be responsible? Nominally, there is an authority, but it is invisible. It 732 does not appear to have any identifiable form at all. So may I leave the noble Baroness with my final words at this stage of the Bill. Does this status have any meaning at all, or is it misleading Parliament and the public to call it a public authority? If the case is that compensation should be handled by central government and civil servants as a department of government, why not say so?
§ Baroness Blatch
My noble friend poses a number of questions. He is correct that the only reference to the authority is not on the face of the Bill but is in fact included in the scheme. I shall take all of the questions posed by my noble friend. I shall give him a full reply and copy it to all interested Peers.
§ Clause 12 agreed to.
§ Schedule agreed to.
§ House resumed: Bill reported with amendments.