Lords Sitting of 31 October 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.
Viscount Thurso Viscount Thurso—Sat first in Parliament after the death of his father.

Wylfa Power Station: Safety Arrangements
Lord Stanley of Alderley Lord Stanley of Alderley asked Her Majesty's Government:
What action they have taken as the sole owner of Nuclear Electric plc to ensure that the individual directors and managers are disciplined following the company's recent conviction for safety offences at Wylfa power station, and that the company's safety arrangements are rectified.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the Government are satisfied that the key people in Nuclear Electric were, and remain, committed to maintaining a high level of safety, as was acknowledged by Mr. Justice Morland in his judgment on the Wylfa case. The Health and Safety Executive's Nuclear Installations Inspectorate (NII) is satisfied with the steps Nuclear Electric has taken to ensure a similar incident cannot happen in the future.
Lord Stanley of Alderley: My Lords, I thank my noble friend for that Answer. Do the Government realise the importance of restoring local confidence in Wylfa's safety arrangements so that it can continue to be a major employer in an area of great unemployment? In order to do so, will the Government exercise their rights as the only shareholders to make sure that those responsible for the mistake are disciplined, both financially and criminally, in the same way as I should be as a single trader if I contravened the Health and Safety Executive rules or, indeed, any other rules laid down by Parliament?
Viscount Goschen: My Lords, I agree with my noble friend that it is very important indeed that full confidence is maintained in the nuclear industry and in particular among those people who live near nuclear installations.
In this case, the Government believe that those who manage the plant were and are committed to the safety culture and that the right steps have been taken to ensure that such an incident does not happen again. That must be the key issue.
Lord Jenkins of Putney: My Lords, does the noble Viscount agree that a Question and Answer in another place seem to suggest that, first, Wylfa was built on the insistence of the government of the day; and secondly, that its primary purpose may have been the production of military plutonium rather than the generation of
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commercial electricity? Will the Minister say whether the accident was related in any way to that dual purpose?
Viscount Goschen: My Lords, the answer that I must give to the noble Lord is: not as far as I am aware. If I am not correct about that, I shall make it public and write to the noble Lord. But the priority must be to reassure the public that this type of incident will not occur again, and that corrective measures have been taken to ensure that.
Lord Marsh: My Lords, does the Minister agree that the outrageous sensationalism to which the reporting of this incident was subject is extremely damaging to the industry? There has been talk of meltdown, danger and allowing commercial considerations to take precedence over safety, all of which were turned down totally by Mr. Justice Morland. Would it not be better if people took into account the considerable value to this country of Nuclear Electric in terms of its overseas export potential?
Viscount Goschen: My Lords, I agree with the noble Lord, Lord Marsh, that one must put the incident in perspective. There was a great deal of fanciful reporting around the extremely serious issues which were raised. The fact is that this was essentially a minor incident. Of course, all incidents which have safety implications are extremely important and we fully accept that. However, the incident has demonstrated the way in which the Nuclear Installations Inspectorate works. The fact that it took a prosecution to court shows how seriously it takes its duties. The judgment given by Mr. Justice Morland provides an extremely good summary of what happened. We must put that in perspective.
Viscount Mersey: My Lords, will my noble friend confirm that in this unfortunate incident no one was hurt, no one was put in danger, and there was no release of radioactive material?
Viscount Goschen: My Lords, those facts are correct. There was a flaw in a component. It fell into the fuel channel. But there was no actual danger as a result. The reactor did not overheat and it showed no signs of stress. If it had, the back-up systems which have been built in would have come into play. That position was not reached. The fact that the incident occurred was serious. However, the key consideration here must be the moves that have been made to remedy the physical faults in the part and indeed in the operating procedures to ensure that there is no repetition of that incident.
The Countess of Mar: My Lords, where will the money come from to pay the fine? Will the Minister give the House an assurance that his noble friend Lord Stanley will not have to bear even the tiniest fraction of that fine?
Viscount Goschen: My Lords, I fear that my noble friend may be a taxpayer. As the taxpayers own Nuclear Electric, which was the body that was fined, I am afraid that the company will bear the brunt of the fine; and in effect we are talking about the taxpayer.
Baroness O'Cathain: My Lords, should we not take notice of the fact that Mr. Justice Morland said he was

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convinced that the current safety programme is thorough, comprehensive and continuous? Nuclear Electric was extremely worried, first, that the incident happened and, further, that it went to court and a judgment was given. Nuclear Electric has taken every precaution since that time. It has also sent a staff newspaper to each of its over 9,000 employees, giving the facts as they were—there was no cover-up—and explaining that the company was sorry the incident had occurred and was determined to learn from it.
Viscount Goschen: My Lords, my noble friend is absolutely right. A safety culture of the very highest standard exists in the nuclear industry; and it is appropriate and essential that it should exist. The incident has shown what can go wrong if there is a physical malfunction of equipment. The incident has been fully examined by an independent body. A prosecution has taken place, and the judge has given his verdict and his summary of the case. However, he reinforced the message that there is a safety culture of a high standard within the nuclear industry.
Lord Peston: My Lords, we all agree that what this country needs is low cost power generation. If nuclear power can achieve that, that is excellent. However, the Question concerns the conviction. Does the Minister agree that the conviction was a serious matter? It is not a trivial matter if a company is found guilty of any offence of this kind. I assumed that the Question of the noble Lord, Lord Stanley, was intended—apart from asking what the Government were doing—to elicit a response which would reassure the local people. As I understand it, they are extremely worried about the position. Have the Government done anything to reassure the local people bearing in mind that most of them will not read the judge's statement and will not read Lords Hansard? They would like the Government to issue some kind of statement to indicate that they are taking such a matter seriously.
Viscount Goschen: My Lords, I believe that constructive messages are put forward by the industry itself to emphasise the safety culture and safety record of the nuclear industry in this country which is of an extremely high standard. I agree with the noble Lord that a prosecution is a serious and not a trivial matter. But I believe that the way in which the board of Nuclear Electric has handled the investigation before the prosecution, and its affairs since the prosecution, show its commitment to a safe industry.
Lord Stoddart of Swindon: My Lords—
Noble Lords: Next Question!
Lord Stoddart of Swindon: My Lords, while I accept that the safety regime in the present publicly owned industry is of the best, will the noble Viscount be able to
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reassure the people of Wylfa and those who live near other nuclear sites that the safety regime will be at least as stringent under private ownership as it is now?
Viscount Goschen: My Lords, that will absolutely be the case.
Lord Wright of Richmond: My Lords—
Noble Lords: Next Question!
Lord Wright of Richmond: My Lords, I noted that the Minister's reply, like other ministerial replies recently, expressed satisfaction with the situation with which the Question dealt. Does the Minister agree that the word "confidence" is more likely to give reassurance than "satisfaction"?
Viscount Goschen: My Lords, I do not totally follow the line of inquiry pursued by the noble Lord. I have made it quite clear that the Government have confidence in the way that the nuclear industry is regulated and that it has independent regulators. We see this as the best way to run a nuclear industry. I have assured the noble Lord opposite that with privatisation of the nuclear industry—although that will not affect Magnox reactors—a strong regime will also be in place.

Stonehenge: Route for A.303
2.48 p.m.
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn asked Her Majesty's Government:
Which specialists advise the Department of Transport on archaeological matters, and why the Highways Agency is taking to public consultation proposed routes for the A.303 near Stonehenge which have not been discussed with, or approved by, English Heritage or the Department of National Heritage.
Viscount Goschen: My Lords, the Highways Agency has appointed Dr. John Samuels to give advice on the archaeological aspects of A.303 improvement schemes near Stonehenge. The agency has discussed the schemes with other government departments and with English Heritage and has now arranged a planning conference as a forum for debate between all interested parties. The Highways Agency is not promoting any specific route.
Lord Renfrew of Kaimsthorn: My Lords, I thank the Minister for that Answer. Will he explain to the House why the Highways Agency, contrary to earlier assurances, has not involved the Department of National Heritage or English Heritage in the organisation of the conference? Why is the notorious yellow route put forward in the brochure as one of the options when it was withdrawn by a previous Minister of Transport as unacceptable on environmental grounds in July 1994? Will my noble friend assure the House that there has not been a change of policy in the department on the yellow route and so direct the engineers who are running this curious conference?
Viscount Goschen: My Lords, I can confirm that there has been no change of policy and that the yellow and grey routes were withdrawn by my honourable

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friend Mr. Norris. They remain withdrawn. They are included in the brochure to show those interested what work has already been done. The brochure makes clear that the routes have been withdrawn. On the question of consultation, I must emphasise that the Highways Agency has worked very closely with English Heritage throughout the process. A large number of meetings have taken place between the Highways Agency and English Heritage. I am pleased that English Heritage will take part in the conference.
Lord Kennet: My Lords, is it not strange that the agency has put forward for public discussion routes which it no longer wishes to build and therefore presumably will not build however much the public approve of them? Is it not even more strange that the agency has not put forward for public discussion the only route to meet with the general approval of the archaeological community in the country, including the Government's advisers, and all others who care for Stonehenge as a monument, namely a long tunnel under the existing road, which would be the shortest long tunnel there could be?
Viscount Goschen: My Lords, the noble Lord questions why a number of options have not been put forward. We have put forward the work that has been done, routes that have been worked up and those that are considered affordable. As for English Heritage's preferred route, that has changed as the process has been taken forward. English Heritage now sees considerable merit in the so-called northern purple route, which is one of the options on the table, albeit with a length of tunnel in the north-eastern corner.
Lord Marlesford: My Lords, does my noble friend agree that this is a very important road? It is needed, but it must be right. It is not acceptable that routes should be rejected as being unaffordable, as was indicated in my noble friend's Written Answer yesterday. It would he much better not to build the new road until the Government can afford the right solution. I am sure that the Government would not wish to leave a cheap and inappropriate heirloom at this crucial site. Can we be reassured on that point?
Viscount Goschen: My Lords, with the greatest respect to my noble friend, we have to live in the real world and have some consideration for cost. We are talking of a very long tunnel and costs of a magnitude of some £300 million as against perhaps £40 million for one of the other routes. It must be true that all the routes considered so far produce real environmental gains and real benefits for the world heritage site itself. We have not decided on a route. We are not even proposing a route at the moment. The purpose of the conference is to get everyone together to talk over the issues in a less formal setting than a public inquiry and to see if some consensus can be reached.
Noble Lords: My Lords—
Lord Clinton-Davis: My Lords—
Lord Hailsham of Saint Marylebone: My Lords, one at a time!
Lord Clinton-Davis: My Lords, I am only going to ask one question at a time. The noble and learned Lord
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can feel satisfied about that. Does the noble Viscount agree that the inclusion of the yellow and grey routes in whatever indicative way was capable of being totally misunderstood by the local population and that it would have been better for that not to have happened? Is he also aware that we on this side of the House believe that the overriding concern must be the protection of the world heritage site of Stonehenge? Will he give a complete and firm undertaking that that will be the ultimate consideration?
Viscount Goschen: My Lords, the protection of the world heritage site is a very high priority. We must also consider safety, traffic and the needs of local people. There is a wide variety of issues. I can confirm that we give the highest possible priority to the great importance of Stonehenge as a world heritage site in this country.
Lord Montagu of Beaulieu: My Lords, is my noble friend aware that many people find it puzzling that after 10 years of consultation about the route of the A.303—discussions in which I was involved for many years—there is now to be yet another inquiry which I gather will not be a statutory inquiry so there will have to be a public inquiry afterwards anyway?
Viscount Goschen: My Lords, that is right. It is not a statutory process but it is a device that we have used in other circumstances where there is a clear polarity of opinion. We have chosen to take the process forward in this way because the very consultation which my noble friend described was inconclusive. We did not get any firm idea of what was the best way forward. That is why we are proceeding in this manner.
The Earl of Strafford: My Lords, does the Minister not agree that the aspirations of archaeologists, important as they are, cannot be the sole criterion for judging which is the best route?
Viscount Goschen: Yes, my Lords, I agree with the noble Earl.

Sporting Events on Television
2.55 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
Whether they will take steps to ensure that all major sporting events are made available to terrestrial television viewers.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): No, my Lords. With the exception of listed sports events which cannot be shown on a pay-per-view basis, sports rights holders should continue to be free to dispose of their rights to broadcast in the way they choose. It is for them to judge the best balance between the level of income from broadcasting rights, the size of the television audience, the amount and type of coverage and the impact on potential spectators and supporters.
Lord Ashley of Stoke: My Lords, is the Minister aware that, when the existing television contracts for our

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main sporting events end shortly, Sky television will bid for the first time? There is no doubt that Sky can easily outbid the BBC and ITV. That means that some of our major sporting events such as the FA Cup Final, the Wimbledon tennis championships and the Grand National will be seen only by those people who can afford to pay £180 a year for the Sky sports channel. That is about 20 per cent. of all households. Therefore, will the Government not admit that the present situation is lamentable and that in two years' time the FA Cup Final will only be seen by those people who have Sky television? That is a disgraceful situation. I hope that the Government will do something not only about that event but about all national sporting events so as to make sure that everyone can see them without having to pay the extra fee charged by Sky.
Lord Inglewood: My Lords, I can only reiterate the point that I made in my first reply. It seems that the noble Lord is jumping an awful lot of hurdles in one bound in assuming that Sky will acquire these rights. There is a variety of possible interests and permutations. I can only refer the noble Lord to a report in the Independent of the 13th of this month, in which a representative of football interests says that:
"anybody who thinks Sky has it all sewn up just does not know the facts".
Lord Stodart of Leaston: My Lords, is my noble friend aware that a certain royal and ancient game is involved in this particular subject? Will he please consider that, while his answers so far appear to be par for the course, many of us would like to see him strike a few birdies?
Lord Inglewood: My Lords, I am most grateful to my noble friend for his golfing question. Since I am no golfer myself I am not entirely clear what he meant. In a sense, that illustrates some of the problems in this area. There is a list of events, to which I have referred, and golf is not included on it. No doubt the golfing industry and golf in general has benefited greatly from the recent contract with Sky.
Lord Donoughue: My Lords, is the Minister aware that his Answer will depress millions of sports lovers who believe that the main priority should be universal access to live television coverage of the main sporting events? Is it not unacceptable that the great sporting events—the Derby, the Grand National and the Cup Final—should be auctioned off to the highest bidder, even to a minority channel, on subscription satellite? That is unacceptable, and was rejected in 1994 by the National Heritage Select Committee. Will the Minister agree to apply the simple solution—that is, to amend the Broadcasting Act 1990 so that the limitations that currently apply to pay-per-view channels may be applied to subscription satellite viewing? That would enable the poor, the elderly, the unemployed and all those who cannot afford the satellite channel to watch the great sporting events.
Lord Inglewood: My Lords, I am interested to hear about the full nationalisation of all our great sporting events that appears to be inherent in the noble Lord's
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question. When we consider the number of viewers of all sports on television, the first point that is apparent is that it is not a homogeneous group. Different people are interested in different matters. How does one define it? I said that I was not interested in golf but I rather enjoy football. As soon as one enters definitions to the sweeping generalisations that we have heard, a whole plethora of problems emerges.
To return to my original reply, the sports need the money to develop young talent, to improve facilities and make it easier and better for those who pay to view when they attend the sporting occasion. No, my Lords, we are satisfied with the position we have adopted.
Lord Donoughue: My Lords, will the noble Lord accept that, while the revenues to the sports are important, those revenues can be protected by unbundling the rights into current showing, later showing, extracts and so forth, thus protecting the revenues and leaving a wide choice on channels for a wide range of viewers?
Lord Inglewood: My Lords, the noble Lord describes exactly one of the ways in which those who control the rights could best exploit them. It is up to them to decide the detail of how to do it.
Lord Thomson of Monifieth: My Lords, is the Minister aware that the ability of anyone anywhere in the United Kingdom to see major sporting events lies at the heart of our public service broadcasting tradition? Will he, at the least, give an absolute assurance to the House that in the forthcoming legislation he will strengthen the provisions on broadcasting to ensure that the present protected list of events is maintained and extended?
Lord Inglewood: My Lords, the analysis of the noble Lord, with all his great experience of the traditions of public service broadcasting, is slightly at variance with mine. However, we keep the matter constantly under review and will continue to do so.
Lord Peyton of Yeovil: My Lords, leaving aside for the moment the question of extra-terrestrial viewers (whoever they may be), perhaps I may ask my noble friend whether he will refrain from taking too much comfort from the words of the Independent and ensure that we do not drift into a situation of monopoly and restriction which would not be acceptable?
Lord Inglewood: Yes, my Lords.
Lord Jenkins of Putney: My Lords, is the noble Lord aware—
The Lord Privy Seal (Viscount Cranborne): My Lords, I am as always in the hands of the House, but I observe that we have under six minutes left with one further Question to come. Perhaps your Lordships may feel that the time has come to move on.

Cable Network Connections
3.4 p.m.
The Earl of Bradford The Earl of Bradford asked Her Majesty's Government:
Whether they have plans to make it compulsory for cable companies to connect all potential commercial and private customers within their franchise area that wish to join the cable network.
Lord Chesham: My Lords, cable operators who were awarded their franchises under the Cable and Broadcasting Act 1984 are required to cable past a specified number of premises each year. The final total is intended to represent the total number of homes in the franchise area. Operators who have been awarded local delivery franchises under the Broadcasting Act 1990 and who are permitted to provide services using radio are required to serve a minimum number of homes within the franchise area each year.
The Earl of Bradford: My Lords, I thank the Minister for his reply. I believe that he is a country dweller, as I am. Does he therefore share the concern of those living in the countryside that we shall once again be disadvantaged, that we shall be pushed to the bottom of the list, that the cost could be unacceptably high and that we shall not be able to share in the cable revolution?
Lord Chesham: My Lords, there is no cost premium for living in the countryside as regards cable television. But my noble friend will have to be patient as to when services are available. Cable companies may not differentiate in their charging structure between rural users within a franchise area and conurbation users.
Lord Peston: My Lords, as someone who has a satellite channel, I find it difficult to be worried about the problem. All we seem to get these days are 40 channels on which nothing is worth watching. Therefore, I am not convinced that country dwellers miss that much. Do I understand the Minister's Answer to be that in the country as well as in the towns there is a definite target for numbers of connections that must be made per year once a company has been given the franchise and that the ultimate target must be 100 per cent? Were those the two central parts of his reply or did I misunderstand him?
Lord Chesham: My Lords, they were absolutely the central part where there are franchised areas. About two-thirds of the country is covered by franchised areas. It is obviously not possible to expect a commercial cable company to cover remote rural areas.
Lord Campbell of Croy: My Lords, while the obligations in companies' areas should be observed, can anything be done to reduce the effects of cable-laying roadworks which lead to traffic disruption by taking out at least one lane and sometimes half the road?
Lord Chesham: My Lords, the benefits of cable are substantial. Streets must be dug up, but it is vital for such disruption to be kept to a minimum. Cable
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operators are keen to avoid unnecessary disturbance. All cable companies are committed to best practice and the practice is improving.
Lord Strabolgi: My Lords, can something be done to protect the trees? Many trees have been destroyed in London by the operators' carelessness.
Lord Chesham: My Lords, the Government and the cable industry are committed to protecting trees and there are guidelines in place. For example, hand digging is required around trees now rather than mechanical digging. That should certainly help to protect the roots.
Lord Shepherd: My Lords, regarding the question asked by the noble Lord, Lord Campbell of Croy, the House passed legislation which required roadworks to be completed within a particular time. If companies failed to do so, they were to pay a penalty. Can the noble Lord assure me that that part of the legislation has been implemented by regulation?
Lord Chesham: My Lords, I cannot answer that question at the moment. I shall write to the noble Lord.
Lord Shepherd: My Lords, I suspect that although it was passed three years ago that part of the legislation has not yet been implemented.

Criminal Injuries Compensation Bill
3.8 p.m.
Report received.
Clause 1 [The Criminal Injuries Compensation Scheme]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 1:
Page 1, line 8, after ("include") insert ("the establishment of a body to be known as the Criminal Injuries Compensation Authority ("the Authority") and").
The noble Lord said: My Lords, I shall take my usual deliberate time in order to allow those who have no interest in this important matter to leave quietly and gracefully. Amendment No. 1 and the amendments grouped with it arise from an exchange between the noble Lord, Lord Windlesham, and the Minister at the end of the Committee stage two weeks ago. The former pointed out that although the Bill is entirely concerned with the setting up of an authority, a body, to deal with a scheme of compensation for criminal injuries, it makes no reference to the authority which is to be established. The only reference to the authority appears in the draft scheme that Ministers kindly circulated to those noble Lords concerned. The contribution of the noble Lord, Lord Windlesham, in Committee was extremely valuable. The noble Lord said:
"I have made some inquiries as to what form it is expected to take. Will the authority 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 does not appear to have any identifiable form at all".—[Official Report, 17/10/95: col. 731.]
The noble Lord therefore invited the Minister to consider the matter and to make the position clear before Report stage. The Minister did so. She wrote a very helpful letter on, I believe, 24th October—my photocopier is not all that good—in which she explained that there is indeed no reference to the criminal injuries compensation authority because:
"It is not necessary, whether for Parliamentary, public accountability or other purposes, for the Bill to create a statutory body corporate through which the Secretary of State's arrangements can be carried out. In law, claims officers will, unless and until a Scheme manager is appointed, carry out the functions conferred on them by the Bill with respect to the determination of claims and the award of compensation".
There are two problems with this question and with the answer given to it. The first relates to the transparency of legislation. Here I do not believe that I make a party political point. It ought not to be the case that legislation is placed before Parliament which has a hidden sub-text of this importance. We are after all dealing with some 500 staff and many millions of pounds of public money. There are precedents for non-departmental public bodies, as there are precedents for Next Steps agencies, although the recent history of the relationship between the Home Office in particular and these agencies is not particularly happy. There is of course to be an inquiry into the relationship between the Home Office and the Secretary of State and one particular agency, the Prison Service. It appears that in this area the role of policy and that of administration have, to say the very least, become confused over the past couple of years. Therefore it is not satisfactory simply to assume that everyone knows what is meant by an agency. Everyone knows what is meant by a non-departmental public body—what we normally call a quango—and what the actual effect on responsibility is.
The Minister went on to describe the rules, the management statement that such a body has to make, and the general financial accountability framework. I find all that very helpful. I am grateful to the Minister for spelling it out. However, we ought not to have legislation before Parliament which is based on a sub-text and which does not spell out what Parliament is doing in providing for a scheme of this kind. That is my first and perhaps more general point.
My second point relates to a matter which did not become apparent to me—it was entirely my own fault—until some way into consideration of the Bill. The Bill is drafted very deliberately not only to exclude statutory reference to the authority but to provide for the subsequent contracting out of the criminal injuries compensation scheme. Again, the Minister very fairly refers to this in her letter. She states that references to the scheme manager if appointed, which occur in many places throughout the Bill, are references to what would happen if the provisions of the Act and the scheme were to be contracted out. I am not sure whether the word "privatised" is appropriate in these circumstances. The possible degrees and variations are very great indeed. Nevertheless, without public recognition, the possibility of contracting out is written into this Bill. The Government tell us that they have no immediate intention of doing so, and I accept that that is the current
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situation. However, at least for the next 18 months this Government have the opportunity to change their mind. They are quite capable of changing their mind and have done so on many comparable occasions in the past.
Therefore, in these amendments we seek, first, to achieve greater clarity in the drafting of the Bill by writing the criminal injuries compensation authority onto the face of the legislation. That is what it will be, and everyone acknowledges that. It should be a statutory body, as indeed it would have been if the provisions of the 1988 Criminal Justice Act had been brought into force. The second aim of the amendments is to ensure no subsequent possibility, without reference to Parliament, of contracting out the functions of the criminal injuries compensation authority.
Why am I concerned in particular that this authority should not have its services contracted out? We achieved after all, by a government amendment in Committee, a very much greater degree of parliamentary control over the detail of the scheme, and indeed the tariff, than some of us had believed possible when the Bill was first introduced. The scheme is certainly very much more flexible and accountable than the one introduced in 1994 that subsequently proved to be illegal. All of that is to the good. And, presumably, the statutory controls, accountability and flexibility enshrined in the draft scheme would survive under contracting out. That is surely a function for the public sector rather than one for the involvement of private enterprise. It is a function that is inherently part of the criminal justice system.
Criminal justice systems have been a part of the public sector and part of government since the beginning of government. I cannot think of any example in this country, other than the recent privatisation of prisons, where significant parts of the criminal justice system have been contracted out to private enterprise. There were some ideologically based attempts, but they were very minor and very much at the fringes. I believe that the people of this country expect their criminal justice system, as they expect their police and all fundamental functions of the apparatus of law and order in our state, to be part of the public system and to be accountable to Parliament. For those reasons I strongly oppose the suggestion that it should be possible, and that this Bill should make it possible, for the criminal injuries compensation authority to be contracted out subsequent to the passage of this legislation.
Therefore, Amendment No. 1 refers to the establishment of a criminal injuries compensation authority. In Amendments Nos. 3, 8, 10, 19, 25 and 26 we seek to remove references to the scheme manager, if appointed, because those references, as the Government openly stated, are references to the possible contracting out of the scheme. I apologise for the fact that I was working when I produced the groupings on an earlier version, my own version, of the Marshalled List. Therefore, Amendments Nos. 20 to 22, which refer to the panel, should have been grouped with Amendment

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No. 2 rather than with this amendment. With that apology and that explanation of these amendments, I beg to move.
The Minister of State, Home Office (Baroness Blatch): My Lords, the overall purpose of the amendments is effectively to remove the possibility of the administration of the scheme being contracted out at some stage in the future. It is important at the outset of what I have to say in response to the amendments that we make the distinction between the administration of the scheme and the quasi-judicial work of the appellant body.
I recall that the noble Lord, Lord McIntosh, expressed some surprise in Committee—in discussions on Amendment No. 31, I believe—that the Government were even contemplating contracting out. Indeed, he inferred at that time that that was what lay behind the Government's thinking in the Bill. He made it clear that in his view it would be quite wrong for what he described as "an integral part of the criminal justice system" to be in private rather than in public hands.
We have made no secret at all of the fact that we considered that the administration of the tariff scheme might be a suitable candidate for market testing and, if then appropriate, contracting out at some future date. That view was first declared as long ago as 1993 in our White Paper Compensating victims of violent crime: changes to the criminal injuries compensation scheme (Cmnd. Paper 2434), with particular reference to paragraphs 30 and 31 of that paper. Although the first tariff scheme presaged in that White Paper had to be withdrawn, we have made it clear on many occasions when talking about the new tariff scheme that we considered it to be equally susceptible to market testing.
Perhaps I may correct one comment made by the noble Lord; namely, that the Government could decide. It will not be for the Government to decide; it will be for Parliament. Any result of market testing which led to contracting out would also result in a change to the scheme, which could only be approved by Parliament.
We have also made it clear on many occasions that we have no immediate plans for such market testing. After all the upheavals of the past couple of years, we need a period of stability and certainty during which the authority can get on with the business of running the new scheme and sorting out any teething troubles which there might be and the board can get on with the business of clearing the residual old scheme cases.
But, in principle, once that is done and the new authority has established proven regimes and working practices, I do not see any reason why the administration—I emphasise "administration"—of the scheme should not be subjected to the disciplines of market testing. I should hope that by then the authority itself would be in a good position to show that it could run the scheme just as effectively, efficiently and economically as anyone else. Should that be the case, there would be no need to contract out. But if that were not the case, I fail to see why the administration should not be contracted out to someone who could do the job more efficiently and cost effectively. That could only be in the interests of those who must pay—the taxpayers.
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Before leaving the subject, perhaps I may say that there is no question at all of contracting out the appeals function. Unlike the administration of the scheme itself, that is a quasi-judicial function and, as such, unsuitable for contracting out to the private sector. That is why the Bill specifically precludes contracting out the appeals function (in Clause 5(2)).
Noble Lords will be well aware that it is our firm intention that the new scheme should be administered by the Criminal Injuries Compensation Authority. The draft scheme published at the end of August makes that very clear.
As to why the Bill itself makes no specific provision for the creation of a CICA, let me just say that it is not necessary for parliamentary, public accountability or other purposes for the Bill to create a statutory body through which the Secretary of State's arrangements can be carried out. In law, unless and until a scheme manager is appointed, claims officers will carry out the functions conferred on them by the Bill with respect to the determination of claims and the award of compensation. In practice, all claims officers will be part of the CICA, even though it has no distinct legal personality. The authority will be a recognisable entity to which the public can look in matters concerned with the day-to-day running of the scheme. It is for that reason that it is referred to in the draft scheme which will be laid before Parliament for approval.
As I said, the CICA is quite distinct from the Criminal Injuries Compensation Board, for which statutory provision was made in the Criminal Justice Act 1988. But things have moved on since then. The need to allow for future flexibility in the operation of the tariff scheme—in particular the need to cater for the possibility of market testing and contracting out the administration of the scheme at some future date, to which I have just referred—makes it inappropriate to replicate in the present Bill with regard to the CICA the provision made in the 1988 Act in respect of the board.
The Criminal Injuries Compensation Authority will carry out an essentially administrative system for determining claims for compensation. It requires no special provision for that purpose other than those already provided in the Bill and the draft scheme.
I do not believe that there is more that I can usefully add on the subject. I hope that the noble Lord is satisfied with the explanation and indeed the full statement of the Government's position and intentions. I recognise that there are those who, as a matter of doctrine, oppose the whole notion of market testing and contracting out. But I am sure that the noble Lord's approach is not doctrinaire. That would not be characteristic of him. In the light of what I have said, I hope that he will not press the amendments.
Lord McIntosh of Haringey: My Lords, the Minister chose to reply to a number of charges which I did not make. I did not say at any stage that the Government had the intention of contracting out the appeals procedure, although she appears to think so. The whole issue of the appeals procedure is the subject of the next group of amendments, which will be dealt with by my noble and learned friend Lord Archer.

1355
Nor did I accuse the Government of bad faith in this matter, although I confess that, if one looks back at the history of criminal injuries compensation, many people might well accuse the Government at the very least of severe mismanagement of compensation schemes. After all, without going over ground that has been discussed in great detail before, 30 years ago we started with a non-statutory scheme which survived for 24 years without any attempt to put it on the statute book under governments of both parties. Indeed, it was an extraordinary enough use of the Royal Prerogative in itself, for which both the major parties must share responsibility, although the scheme worked and no one tried to privatise it.
Then there was the extraordinary situation of the Government promoting a Bill which made the scheme statutory and refusing to implement it. In the presence of noble Lords on the Government Benches I shall not go into the detail of the history of that matter. Then, when a new Royal Prerogative scheme was indeed implemented, it was so different from the original statutory scheme that it was struck down by the courts. If I were the Government, I should not be congratulating myself on the way in which this matter has been handled over recent years.
Without accusing anyone of bad faith, I return to what I did charge the Government with: namely, not telling the truth in this legislation about what they intend. I do not believe that they have positively concealed what they sought to do. I agree with the Minister that in the 1993 White Paper there was reference to the possibility subsequently of market testing and contracting out. But surely the Bill should positively state the Government's intention and require parliamentary approval other than in the form of a statutory instrument if this major step towards contracting out is indeed to be taken in the future.
On the basis that the Government argue the case now, virtually every piece of government machinery would be capable of being contracted out without Parliament having any particular say in the matter. That is a very unsatisfactory situation. The Bill does not say what it means, and what the Government mean, which is not in the Bill, is that an integral part of our criminal justice system may, without primary legislation, be taken out and sold off to the private sector. I cannot believe that that is what the majority of the Members of the Government's own party want, let alone what is wanted by the people of this country. They expect the criminal justice system to be a coherent whole; they expect it to be in the public sector and they think of criminal injuries compensation as being a part of that. In defence of that expectation and principle, I ask the House to take a view on this amendment.
3.30 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 157.

Division No. 1

CONTENTS

Ackner, L.

Judd, L.

Addington, L.

Kilbracken, L.

Airedale, L.

Kinloss, Ly.

Archer of Sandwell, L.

Kintore, E.

Ashley of Stoke, L.

Kirkhill, L.

Bath, M.

Lockwood, B.

Beaumont of Whitley, L.

Lowry, L.

Berkeley, L.

Macaulay, of Bragar, L.

Brightman, L.

McGregor of Durris, L.

Broadbridge, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

Mackie of Benshie, L.

Callaghan of Cardiff, L.

McNair, L.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carter, L.

Mayhew, L.

Carver, L.

Merlyn-Rees, L.

Chorley, L.

Molloy, L.

Cledwyn of Penrhos, L.

Monkswell, L.

Clinton-Davis, L.

Morris of Castle Morris, L. [Teller.]

David, B. [Teller.]

Diamond, L.

Nelson, E.

Donaldson of Kingsbridge, L.

Nicol, B.

Donaldson of Lymington, L.

Ogmore, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Richard, L.

Ritchie of Dundee, L.

Ezra, L.

Robson of Kiddington, B.

Falkender, B.

Rochester, L.

Farrington of Ribbleton, B.

Salisbury, M.

Gallacher, L.

Sandwich, E.

Geraint, L.

Seear, B.

Gladwin of Clee, L.

Serota, B.

Glenamara, L.

Shannon, E.

Graham of Edmonton, L.

Simon, V.

Gregson, L.

Stallard, L.

Grey, E.

Stedman, B.

Halsbury, E.

Stoddart of Swindon, L.

Han worth, V.

Strabolgi, L.

Harris of Greenwich, L.

Strafford, E.

Haskel, L.

Taylor of Blackburn, L.

Hayter, L.

Thomson of Monifieth, L.

Hilton of Eggardon, B.

Thurlow, L.

Hollis of Heigham, B.

Thurso, V.

Holme of Cheltenham, L.

Tordoff, L.

Hooson, L.

Turner of Camden, B.

Howie of Troon, L.

Varley, L.

Hylton, L.

Wallace of Coslany, L.

Ilchester, E.

White, B.

Jay of Paddington, B.

Wigoder, L.

Jeger, B.

Wilberforce, L.

Jenkins of Hillhead, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Brookeborough, V.

Addison, V.

Brookes, L.

Ailesbury, M.

Bruntisfield, L.

Ailsa, M.

Burton, L.

Alexander of Tunis, E.

Butterworth, L.

Alport, L.

Cadman, L.

Archer of Weston-Super-Mare, L.

Caithness, E.

Astor of Hever, L.

Caldecote, V.

Barber of Tewkesbury, L.

Campbell of Alloway, L.

Belhaven and Stenton, L.

Campbell of Croy, L.

Beloff, L.

Cavendish of Furness, L.

Blake, L.

Chalker of Wallasey, B.

Blatch, B.

Charteris of Amisfield, L.

Blyth, L.

Chesham, L. [Teller]

Boardman, L.

Clanwilliam, E.

Boyd-Carpenter, L.

Clark of Kempston, L.

Brabazon of Tara, L.

Clifford of Chudleigh, L.

1357

Constantine of Stanmore, L.

Mersey, V.

Courtown, E.

Middleton, L.

Cox, B.

Miller of Hendon, B.

Cranborne, V. [Lord Privy Seal.]

Milverton, L.

Cross, V.

Monk Bretton, L.

Cuckney, L.

Montgomery of Alamein, V.

Cullen of Ashbourne, L.

Morton, E.

Davidson, V.

Mottistone, L.

De L'Isle, V.

Mountevans, L.

Dean of Harptree, L.

Mowbray and Stourton, L.

Denham, L.

Moyne, L.

Denton of Wakefield, B.

Munster, E.

Dixon-Smith, L.

Napier of Magdâla, L.

Downshire, M.

Newall, L.

Dundee, E.

Noel-Buxton, L.

Eden of Winton, L.

Norrie, L.

Elibank, L.

Northesk, E.

Ellenborough, L.

O'Brien of Lothbury, L.

Elliott of Morpeth, L.

O'Cathain, B.

Erne, E.

Oppenheim-Barnes, B.

Fanshawe of Richmond, L.

Orkney, E.

Ferrers, E.

Orr-Ewing, L.

Finsberg, L.

Oxfuird, V.

Foley, L.

Pearson of Rannoch, L.

Gainford, L.

Pender, L.

Geddes, L.

Peyton of Yeovil, L.

Goold, L.

Radnor, E.

Goschen, V.

Rankeillour, L.

Gray of Contin, L.

Rawlings, B.

Grimston of Westbury, L.

Renfrew of Kaimsthorn, L.

Hailsham of Saint Marylebone, L.

Renwick, L.

Harding of Petherton, L.

Robertson of Oakridge, L.

Harmsworth, L.

Rodger of Earlsferry, L.

Hayhoe, L.

Romney, E.

Headfort, M.

St Davids, V.

Henley, L.

Saint Oswald, L.

Holderness, L.

Sandford, L.

HolmPatrick, L.

Seccombe, B.

Hood, V.

Sharples, B.

Hooper, B.

Shaw of Northstead, L.

Hothfield, L.

Simon of Glaisdale, L.

Howe, E.

Skelmersdale, L.

Hylton-Foster, B.

Stanley of Alderley, L.

Inglewood, L.

Stodart of Leaston, L.

Ironside, L.

Stokes, L.

Johnston of Rockport, L.

Strathcarron, L.

Kimball, L.

Strathclyde, L. [Teller.]

Knollys, V.

Sudeley, L.

Lane of Horsell, L.

Swinfen, L.

Lauderdale, E.

Tebbit, L.

Liverpool, E.

Terrington, L.

Long, V.

Thomas of Gwydir, L.

Lucas, L.

Torphichen, L.

Lucas of Chilworth, L.

Trefgarne, L.

Lyell, L.

Tugendhat, L.

Mackay of Ardbrecknish, L.

Vaux of Harrowden, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Vivian, L.

Wade of Chorlton, L.

Manchester, D.

Westbury, L.

Marlesford, L.

Whitelaw, V.

Marsh, L.

Wise, L.

Merrivale, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.40 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 2:
Page 1, line 23, at end insert—
(""the Panel" means the Criminal Injuries Compensation Appeals Panel under section 5(1)(b)").
The noble and learned Lord said: My Lords, with this group of amendments we return to a subject which your Lordships discussed in Committee. I say at once that we ended that debate on a note of profound disappointment, not because the Government rejected our argument, but because they had not grasped what it was. The reply of the noble Baroness simply did not engage with the point we were making. There are two ways of expressing that: that the noble Baroness and her advisers failed to understand what I was saying, or that I failed to make myself clear. If it will help, I readily accept the second formulation and hope that this debate will prove to be a new beginning.
Perhaps I may again declare my interest. This is a matter of deep concern to the Council on Tribunals, which I am privileged to chair. It was not initially my intention to argue it on behalf of my party but, first, my party supports the principle that is involved so that I have very little choice in the matter; and, secondly, circumstances have dictated that I speak from this Bench.
Because we and the Government never joined issue in Committee we did not then seek the opinion of the House. Perhaps I may first distinguish what is at issue in this group of amendments from a wider principle on which the House did divide. I believe that the whole Bill is deeply flawed because it fails to maintain the distinction between matters appropriate to the legislature and those appropriate to the executive. If the Government have a proposal to make which entails a change in the law, they make it to the legislature, which, if it is persuaded, legislates accordingly. That distinction becomes blurred if the Government invite the legislature in effect to say, "The executive is hereby authorised to take whatever action it likes". That is not legislating vaguely; it is not legislating at all.
Of course it is usual to leave matters of detail to be dealt with by subordinate legislation. That raises the question: what is a matter of detail? I sought to argue on Second Reading and again in Committee that, for example, in a Bill entitled the Criminal Injuries Compensation Bill the definition of a criminal injury could not by any criterion be a matter of detail. On that issue your Lordships disagreed with us, and I do not seek today to reopen that question. The issue which we are now debating raises an even more fundamental constitutional principle.
It is a major premise of constitutional theory that there are three institutions of government: the executive, the legislature and the judiciary. Judicial institutions and judicial processes should be established and empowered by the legislature. They ought not to depend for their power on the executive because they are watchdogs of the executive. It follows that any institutions and processes concerned with rights of appeal should be enshrined in primary legislation and not in subordinate legislation at the discretion of the executive. Both at Second Reading and in Committee I quoted from the annual report of the Council on Tribunals for 1992–93. I shall not weary your Lordships by citing that passage today but it sets out why it is wrong and, fortunately, most unusual to leave the establishment of an appeal process to secondary legislation. Yet Clause 4 of the Bill

1359
leaves the scheme, not the Bill, to establish a review process to reconsider decisions of the claims officers. Clause 5 leaves appeals from that process to be established by the scheme.
In Committee I indicated that the argument is much stronger when applied to appeals than when applied to review. The Government rejected our amendment in Committee in relation to review, but the noble Baroness did not seek to distinguish for that purpose between review and appeals. Indeed, the noble and learned Lord the Lord Advocate was kind enough to confirm that they were not seeking to make that distinction. Today, we have not sought to resurrect the argument in relation to review. We regard appeals as very much more important in this context, and it is to the appeal process that these amendments relate.
The purpose of Amendment No. 15 is simply to establish the appeal process in the Bill so that its authority derives directly from the legislature and not from or through the executive. We would have liked to have seen the principal provisions relating to appeals set out in the Bill and not left to the discretion of the Secretary of State. But I say frankly that drafting an amendment for that purpose would be difficult, given the drafting scheme of this Bill. It was our attempt to do that which created the confusion which manifested itself in Committee.
Only one provision relating to the way the appeal shall be dealt with do we seek to bring within the Bill, although the noble and learned Lord, Lord Ackner, seeks to do that in relation to another provision later in our proceedings. The scheme, in paragraphs 52 to 60, provides for a panel of adjudicators rather than merely for individual adjudicators who are referred to in the Bill. We have no quarrel with that. Indeed, we approve of it, since it enables provision to be made as to how many adjudicators should sit on any given category of appeals. The noble Lord, Lord Carlisle, is to take advantage of that arrangement for one of his amendments at a later stage. It also enables provision to be made for a chairman of adjudicators. Our Amendments Nos. 2 and 16 seek to ground the authority of the panel within the Bill. So, again, we are not seeking to do something which is different from what the Government envisage. We are saying that those powers should be in the Bill and not in subordinate legislation.
There is a further issue which at present exacerbates the problem. Clause 11 sets out those ongoing matters on which the Secretary of State will require a parliamentary mandate to make changes. We find no mention of appeals. Not only are they left to the discretion of the executive; there is not even a requirement that, after initially approving the scheme, Parliament should be involved. Even if the Government, for whatever reason, resist our other amendments, surely changes relating to appeals should be among the list of matters in Clause 11(3) for which parliamentary approval is required. That is the purpose of our Amendment No. 27.
There is one other amendment about which I shall make a comment. Amendment No. 17 was intended to say that arrangements for making appointments of adjudicators should be made with the approval of Parliament. That is not what our amendment says. It says that parliamentary approval should be required for each individual appointment. That is not what we intended to say and we do not propose to move that amendment.
I hope that this time I have succeeded in making clear to the noble Baroness and her advisers what is troubling us and why we attach such importance to these amendments. In Committee the noble and learned Lord, Lord Simon, expressed anxiety at the way in which over the past decade there has been an attenuation of parliamentary control over legislation. When the subject matter relates to a judicial process, that anxiety is exacerbated. I do not believe that the noble Baroness and her colleagues are plotting to drive a cart and horses through the traditional safeguards of the constitution any more than my noble friend Lord McIntosh. That is perhaps what is so worrying. There is a danger that the Government are doing that not because they want to destroy the constitution but because they fail to notice that it is there. I beg to move.
Lord Carlisle of Bucklow: My Lords, in answer to the last debate, as I understand it, my noble friend the Minister claimed that one of the reasons why the Bill was drafted in its present form is that that part of the authority's work could be market tested and, if necessary, presumably put out to tender. As she knows, she did not persuade me with that view during her speech on that occasion. In the course of her speech she said that she of course made a total distinction between the scheme and the appeals procedure. She said that, whatever happened to the rest of the scheme, the appeals procedure, being a quasi-judicial matter, was clearly one that should remain within the control of Parliament. That being so, I am not quite sure what is the objection to the amendment moved by the noble and learned Lord, Lord Archer of Sandwell.
Baroness Blatch: My Lords, I am grateful to my noble friend for that intervention. I also have to confess that I am confused by some of the arguments used by the noble and learned Lord in this matter. On the face of it, the amendments seem to achieve nothing more than is already achieved by Clause 5, which makes it quite clear that the scheme must include rights of appeal against decisions taken on review under the provisions of the scheme made by virtue of Section 4—not, incidentally, as these amendments would suggest, under Section 4.
Perhaps I may take this opportunity to emphasise that the scheme will give applicants a right of appeal against all decisions taken on review. Under Clause 5(1)(a) it would not be open to the Secretary of State to make provision in the scheme for rights of appeal only against particular types of decisions taken on review. The subsection does not allow him to specify particular circumstances in which an appeal will be available.

1361
I therefore see no need at all to change the present wording of the Bill which is quite express and includes adequate safeguards for an independent appeals system against any review decision. We ought not to forget in this connection that the Bill is essentially enabling legislation which, while very carefully defining the parameters of the tariff scheme, leaves the detail to be set out in the scheme itself; and, as your Lordships will have seen from the draft scheme which we circulated in August, it is a very detailed scheme. Little of that detail is included on the face of the Bill, and quite rightly in my view, since that would have made for very complex primary legislation which was not readily susceptible to refinement to meet changing needs and circumstances. The right place for the detail about the tariff, loss of earnings calculations and special care calculations etc. is the scheme. It is also the right place for the detail about the appeals provisions. I am afraid that I therefore see no need to be overly prescriptive about those provisions on the face of the Bill. The scheme quite clearly sets out what the appeal provisions will be and I believe provides more than enough safeguards for victims.
I have other difficulties with these amendments. I am not sure what is meant by requiring the Secretary of State to appoint the panel with the consent of Parliament. What is that to mean in practice? Does he have to seek Parliament's specific approval as to the precise terms of reference?
Lord Archer of Sandwell: My Lords, I am grateful to the noble Baroness for giving way. Perhaps I may spare her the effort of reading that out because I have already said that that is a mistake and that we do not propose to move that amendment.
Baroness Blatch: My Lords, I am grateful for that. I would also like to say something about the last amendment, which touches on parliamentary control of the scheme. I again remind the House that the amendments we made in Committee changed significantly the degree of control that Parliament will have over the new scheme, and that has been properly recognised. First, Parliament will now have to approve the complete scheme before it can come into force. Then, if change becomes necessary or desirable subsequently, Parliament will have to approve any change whatever. The more important or key features of the scheme will require approval by the affirmative resolution procedure, while, as noble Lords know, all other features will be subject to the negative resolution procedure. The executive will no longer have any power to change any aspect of the scheme, however minor, without securing Parliament's approval in this way.
When the noble and learned Lord introduced these amendments, he constantly referred to the executive being almost a free spirit out there, making decisions one way or another. The executive can act only in relation to a scheme properly approved by Parliament and any change whatever, however minor or major, will also be subject to parliamentary approval.
It is of course a matter of judgment as to which features of the scheme should require approval by the affirmative resolution procedure and which by the
1362
negative. Clearly, Parliament ought not to be overburdened by minor points of detail. We have accordingly made a judgment as to what might reasonably be regarded as the so-called key features of the scheme. These are set out in Clause 11(3). In the main, they relate to the tariff itself and to matters bearing on quantum.
The last of this group of amendments would bring matters relating to appeals procedure and the status of the appeals body within the ambit of subsection (3). In practice, this would bring more or less the entirety of that part of the scheme which deals with appeals within the subsections. We are not convinced that the entire appeals function needs to be singled out for special consideration in this way. In our view this amendment is unnecessary and over-prescriptive. We suspect that the main matters relating to appeals are likely to be no more than minor points of detail, and we would accordingly be reluctant to require Parliament to have to approve them by affirmative resolution. Therefore, we believe that the negative resolution procedure provides quite adequate parliamentary control over this and the other non-key features of the scheme.
What is a legitimate debate is what should be a key or non-key feature of the scheme. But as regards all the other amendments, I hope that they will not be pressed.
Lord Archer of Sandwell: My Lords, that again is a disappointing reply. I suspect that the noble Baroness drew aside the curtain and allowed us to see into the Government's mind for an instant when she said that the Bill is essentially enabling legislation. We knew that. We knew that that was the essence of the Bill and that the Government were asking Parliament to say that the Government shall do substantially as they like as regards criminal injuries compensation. That was a fairly frank admission.
Baroness Blatch: My Lords, I am grateful to the noble and learned Lord for giving way. I have not pulled any curtain back or hid behind any curtain in the course of these debates. There is no secret whatsoever that the Bill is mainly an enabling piece of legislation. Indeed, we have gone out of our way to express why it is that the scheme is to be subject to the negative and affirmative resolution in order to afford the flexibility, transparency and speed with which one may need to respond at some time in the future.
There is nothing devious or malign in the thinking of either myself as a Minister in the department or the department itself. One either accepts that or one does not. We either go for very complicated primary legislation with everything on the face of the Bill or we have the distinction between enabling legislation and the scheme. But there is no way in which any government, any Minister or any part of the Criminal Injuries Compensation Authority or the appellate system can operate outside of the scheme, which is properly approved in the first place by Parliament. Subsequently, any change, however minor or major, is also approved by Parliament. That is not government acting deviously in any way whatsoever.
Lord Archer of Sandwell: My Lords, the word "devious" was not my word—it came from the noble

1363
Baroness—and neither does it represent what I ever suggested. What I do suggest is that we are in danger of galloping again over the course which we have been over on some three occasions as to whether the merits of flexibility extend to a scheme which virtually invites Parliament to write a blank cheque. The noble Baroness shakes her head: we have been over this before. We know that blank cheques are more flexible than cheques by which we limit what we are agreeing to. I do not propose to repeat those arguments because we have been over them before.
The noble Baroness is now emphasising, in a way which she has not done previously, that the Bill is essentially and substantially enabling legislation. She went on to say that where we differ is that the scheme is the right place for the appeals procedure. That is indeed where we differ. We believe that even enabling legislation—whatever label one gives it—should have some matters which are essentially matters for primary legislation. We are saying that one of those matters is the establishment, the empowerment, of judicial procedures. As I have said, that seems to be the view even of this Government in most of the legislation that we have seen in the past few years.
The noble Baroness asked why we should change the wording of Clause 5 which already says that there shall be a scheme and that the scheme shall provide for an appeal. There is a distinction between saying, "There shall be an appeal", and saying, "The Secretary of State shall make a scheme in which he provides for an appeal". If the noble Baroness does not see that distinction, I am not sure that we can take the argument very much further. One can either see what is before one's eyes or one cannot.
On Amendment No. 27, I agree that the difference is between having the positive resolution procedure and the negative procedure. The noble Baroness was not born yesterday and she knows that there is a very important different procedurally. With negative resolutions, one is in the hands of the government business managers; with positive procedures, the Government have to provide the time. That is a very important distinction. At the moment the effect of the Bill as drafted is that changes in the scheme, including changes relating to the appeals procedure, can be made simply by negative resolution. If the noble Baroness does not agree with us on the other distinction that we are making, we would invite your Lordships to say that at the very least the appeals procedure ought to be in that part of the Bill which requires an affirmative resolution.
Baroness Blatch: My Lords, I am happy to respond, although not definitively at this stage. I know the strength of feeling with which the noble and learned Lord is arguing about what should come under the affirmative resolution procedure and what should come under the negative resolution procedure. I wonder
1364
whether he will allow me to take this away, to consider what has been said during this exchange and to report back by the next stage.
Lord Archer of Sandwell: My Lords, the noble Baroness cannot say fairer than that in relation to Amendment No. 27, and after a rapid consultation with my noble friend Lord McIntosh, I can assure her that we shall not be inviting the House to divide on Amendment No. 27.
However, that does not address the essential argument that we are advancing in relation to the other amendments in this group. We had hoped for a more forthcoming reply, but I think that we have made at least an advance and that the noble Baroness appreciates what we are seeking to argue. However, it appears that, having appreciated it, the Government reject it. In those circumstances, the appropriate course is to invite the opinion of the House.
4.3 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 147.

Division No. 2

CONTENTS

Ackner, L.

Howie of Troon, L.

Addington, L.

Hughes, L.

Archer of Sandwell, L.

Hylton, L.

Ashley of Stoke, L.

Ilchester, E.

Barnett, L.

Jay of Paddington, B.

Bath, M.

Jeger, B.

Beaumont of Whitley, L.

Jenkins of Hillhead, L.

Brooks of Tremorfa, L.

Jenkins of Putney, L.

Bruce of Donington, L.

Judd, L.

Callaghan of Cardiff, L.

Kilbracken, L.

Carmichael of Kelvingrove, L.

Kintore, E.

Carter, L.

Kirkhill, L.

Cledwyn of Penrhos, L.

Lawrence, L.

Clinton-Davis, L.

Lockwood, B.

Darcy (de Knayth), B.

Macaulay of Bragar, L.

David, B.

McGregor of Durris, L.

Dean of Beswick, L.

Mclntosh of Haringey, L.

Desai, L.

Mackie of Benshie, L.

Diamond, L.

McNair, L.

Donaldson of Kingsbridge, L.

Mason of Bamsley, L.

Donoughue, L.

Mayhew, L.

Dormand of Easington, L.

Monkswell, L.

Erroll, E.

Morris of Castle Morris, L

Ezra, L.

Nelson, E.

Falkender, B.

Nicol, B.

Falkland, V.

Ogmore, L.

Farrington of Ribbleton, B.

Prys-Davies, L.

Gallacher, L.

Richard, L.

Geraint, L.

Ritchie of Dundee, L.

Gladwin of Clee, L.

Robson of Kiddington, B.

Glenamara, L.

Rochester, L.

Graham of Edmonton, L. [Teller]

Sainsbury, L.

Gregson, L.

St. John of Bletso, L.

Hanworth, V.

Seear, B.

Harris of Greenwich, L.

Sefton of Garston, L.

Haskel, L. [Teller]

Serota, B.

Headfort, M.

Shannon, E.

Hilton of Eggardon, B.

Simon, V.

Hollis of Heigham, B.

Simon of Glaisdale, L.

Holme of Cheltenham, L.

Stallard, L.

Hooson, L.

Stoddart of Swindon, L.

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Strabolgi, L.

Varley, L.

Strafford, E.

Wallace of Coslany, L.

Taylor of Blackburn, L.

Wharton, B.

Thomas of Walliswood, B.

White, B.

Thomson of Monifieth, L.

Wigoder, L.

Tordoff, L.

Williams of Elvel, L.

Turner of Camden, B.

Winchilsea and Nottingham, E

NOT-CONTENTS

Aberdare, L.

Henley, L.

Addison, V.

Holderness, L.

Ailsa, M.

HolmPatrick, L.

Alexander of Tunis, E.

Hood, V.

Alport, L.

Hooper, B.

Archer of Weston-Super-Mare, L.

Hothfield, L.

Astor of Hever, L.

Howe, E.

Barber of Tewkesbury, L.

Huntly, M.

Belhaven and Stenton, L.

Hylton-Foster, B.

Beloff, L.

Inglewood, L.

Blake, L.

Ironside, L.

Blatch, B.

Kimball, L.

Boardman, L.

Kinnoull, E.

Boyd-Carpenter, L.

Knollys, V.

Brabazon of Tara, L.

Lane of Horsell, L.

Brookeborough, V.

Lauderdale, E.

Bruntisfield, L.

Liverpool, E.

Burton, L.

Long, V.

Butterworth, L.

Lucas, L

Cadman, L.

Lyell, L.

Caldecote, V.

McColl of Dulwich, L

Campbell of Alloway, L.

Mackay of Ardbrecknish, L

Campbell of Croy, L.

Mackay of Clashfern, L. [Lore Chancellor.]

Cavendish of Furness, L.

Chalker of Wallasey, B.

Manchester, D.

Charteris of Amisfield, L.

Marlesford, L.

Chesham, L. [Teller.]

Merrivale, L.

Clanwilliam, E.

Mersey, V.

Colnbrook, L.

Miller of Hendon, B.

Constantine of Stanmore, L.

Milverton, L

Comwallis, L.

Monk Bretton, L.

Courtown, E.

Montgomery of Alamein, V.

Cox, B.

Morton, E

Cross, V.

Mottistone, L.

Cuckney, L.

Mountevans, L.

Cumberlege, B.

Mowbray and Stourton, L.

Davidson, V.

Munster, E.

De L'Isle, V.

Norrie, L.

Dean of Harptree, L.

Northesk, E.

Denton of Wakefield, B.

O'Cathain, B.

Dixon-Smith, L.

Oppenheim-Barnes, B.

Downshire, M.

Orr-Ewing, L.

Dundee, E.

Oxfuird, V.

Eccles, V.

Palmer, L.

Eden of Winton, L.

Pearson of Rannoch, L.

Elibank, L.

Pender, L.

Ellenborough, L.

Peyton of Yeovil, L.

Elles, B.

Prentice, L.

Elliott of Morpeth, L.

Radnor, E.

Elton, L.

Rankeillour, L.

Erne, E.

Rawlings, B.

Fanshawe of Richmond, L.

Rawlinson of Ewell, L.

Ferrers, E

Renfrew of Kaimsthorn, L.

Foley, L.

Renton, L.

Gainford, L.

Renwick, L.

Geddes, L.

Rippon of Hexham, L.

Goold, L.

Rodger of Earlsferry, L.

Goschen, V.

Romney, E.

Gray of Contin, L.

St Davids, V.

Grimston of Westbury, L.

Sandford, L.

Hailsham of Saint Marylebone, L.

Seccombe, B.

Harding of Petherton, L.

Sharples, B.

Harmar-Nicholls, L.

Shaw of Notthstead, L.

Harmsworth, L.

Skelmersdale, L.

Harrowby, E.

Stanley of Alderley, L.

Hayhoe, L.

Stodatt of Leaston, L.

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Stokes, L.

Tugendhat, L.

Strathcarron, L.

Vaux of Harrowden, L

Strathclyde, L. [Teller.]

Vivian, L.

Sudeley, L.

Westbury. L.

Swinfen, L.

Whitelaw, V.

Terrington, L.

Wise, L.

Thomas of Gwydir, L.

Wyatt of Weeford, L.

Torphichen, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.11 p.m.
[Amendment No. 3 not moved.]
Clause 2 [Basis on which compensation is to be calculated]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 4:
Page 2, line 6, at end insert ("and the age and sex of the person applying for the award").
The noble Lord said: My Lords, this amendment returns to an issue that we debated in Committee. I do not apologise for that because I have better information now with which to deal with it. In Committee the noble Baroness, Lady Seear, made a very helpful intervention and I am sorry that she is not in her place today. I argued then that the age and sex of the applicant are enormously important in establishing the real damage done by any particular injury. We all recognise that the tariff is a rough and ready approximation and that it is deliberately intended to be a rough and ready approximation in order to establish a basis on which compensation can be calculated more speedily by less expert people—in other words, by claims officers rather than lawyers—and at less public expense. We do not underestimate the benefits of speed and administrative efficiency.
The basis on which the tariff has been established is different from the tariff scheme which was subsequently declared illegal. In that scheme there were 187 separate injuries identified; in this scheme there are now over 300. No doubt over the years the number will go up as we learn to distinguish more closely the actual damage done, both psychologically and physically, as a result of different kinds of criminal injury.
But however it has been improved, the tariff scheme still fails to recognise a fundamental series of differences—the differences caused to people of different sex and of different ages.
I take ages first. Clearly, with a very large number of injuries—particularly those which are visible—more serious damage is done to those who are young and perhaps beautiful than to those who are old and certainly not beautiful. More serious damage is done to those who will have to live with the physical results of their injuries over a number of decades than to those who are perhaps in their last decade or couple of decades. That is common sense, as everyone here—of whatever age—will agree.
Similarly, some injuries—particularly those which relate to fertility—have a differential effect. For the sake of this argument we do not need the injuries to have a greater effect, but a differential effect, on women than they do on men. Certainly, injuries which are visible

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have a differential effect on women than they do on men. No one doubts that these are real differences, and no one has contended that these differences are recognised within the tariff.
Indeed, when we consider the relationship of the tariff scheme with the rest of personal injury damages at law, it becomes evident that the tariff without reference to age or sex is woefully inadequate. There are people—I am not making a party point—who will wish, if the tariff scheme works, to apply it to other forms of personal injury, whether injuries at work, injuries caused by medical negligence, or whatever. There may be some justification for that. It may be that the advantages of speed and economy would also apply to such injuries. There is no self-evident reason why that should not be so, although many personal injuries lawyers might be put out of work were it to happen.
As soon as you start to think about applying a tariff of this kind to injuries other than injuries caused by criminal activity, you realise that differences of age and sex, and the seriousness of injury caused to different people of different ages and of either sex, is such that you could not extend the tariff scheme to cover other personal injuries now covered by the common law. The point I am making is that if the tariff scheme is viable, and if it is to be made viable and made applicable to forms of personal injury other than criminal injury, then at some stage it must recognise differences of age and sex.
I had the advantage—I am grateful for it—of a meeting with the Minister and her officials between Committee stage and Report stage. I asked whether information on the age and sex of applicants, of victims was available. It was a question to which I did not have the answer in Committee. The basis on which the tariff was drawn up is statistically sound. Twenty thousand cases were examined and analysed. The median award made for each identified separate injury was identified and used as a basis for the tariff.
To the other question I was asking—about occupation—the answer was that there was no evidence of occupation in the survey of 20,000. But there was evidence of age and sex. In other words, the age and sex of the applicant had in each case been recorded and transferred on to the record sheet which was used as the basis for drawing up the tariff.
So it is physically possible for age and sex to be included in the tariff scheme. That would mean—if you look at the tariff—that where there is a single column of figures on the righthand side of each page opposite each identified injury there would have to be a multiple column of figures to distinguish between the old and the young and male and female.
It may well be—I speak now as a statistician—that the sample of 20,000 is not adequate for each injury for a very wide range of ages. I cannot imagine that it would not be good enough to distinguish between men and women. It is possible to do that. The evidence is available on which to do it, and if necessary the evidence could be extended. The 20,000 sample could be extended and brought in as a criterion. It is common
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sense that the age and sex of the applicant—the victim—sis a relevant consideration. I do not think that the Minister will seek to deny that.
If the amendment is to be opposed, it will be opposed on grounds of complexity or practicability rather than on the basic principle underlying it. I have sought, with the help of the Minister and her officials, to show that it is possible to do what we want: that the scheme would be enormously improved in its approximation to real life if it were to be improved in this way. I do not wish to press the amendment. What I want from the Minister is a recognition that there would be an improvement, and that some serious effort will be made in subsequent versions of the scheme to provide for what we are asking in the amendment. I beg to move.
Lord Campbell of Alloway: My Lords, I have every sympathy with what was said by the noble Lord and the way in which he said it. Perhaps I may ask for some clarification. Is not the noble Lord's concern capable of being assumed by subsection (5) within the words:
"or the circumstances in which it was sustained"?
The circumstances include the age and the sex. "Circumstances" provide the widest possible term.
Perhaps I may ask my noble friend the Minister, whether if I am right, and I may not be, the injury would be so described in the tariff in this way, which accommodates the concern of the noble Lord, because, if so, the amendment would not seem to be necessary. However, I am not sure that I am right.
Lord Carlisle of Bucklow: My Lords, one has a great deal of sympathy with the noble Lord, Lord McIntosh, and the speech that he made. However, regrettably it seems that he was really arguing for the end of the tariff. I would welcome that outcome. I have always argued that it is factors such as age, occupation and sex that a tariff cannot account for in deciding the appropriate volume of compensation. I thought that, sadly, we had all moved on from there in view of the major concessions made by the Government in their second attempt to introduce a new criminal injuries compensation scheme as against their original abortive attempt. I believe that it had been accepted that, for the majority of offences, a tariff of some kind should be introduced, certainly for the simpler offences.
That being so, I find it difficult to understand how the amendment could work. I accept that scarring or injury to the face of a young girl may be worth a considerably greater degree of compensation than on a middle-aged man. I put it no higher than that. If it is said to be consistent with the tariff, does the noble Lord seriously suggest that under the statement in the scheme for something like a nose—there are several different varieties of broken nose or deviated septums set out in the scheme already—it would be possible to put: "(female)", "(male)", and "(over 30)", "(under 50)", "(over 50)", and "(under 30)" with a different price against each?
If we are to have a tariff system, we cannot add that degree of complexity to it without making it unworkable. I was sad that the noble Lord did not support the amendment that I tabled in Committee. It

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was to allow a band of figures rather than a single figure, so that there was a degree of discretion within the band. Although I sympathise with the proposal's aim, I believe that it is impractical for it to be in the tariff; and if it is not to be in the tariff, but at large to change the tariff figure because of age or sex to some other figure which the claims officer thinks most appropriate, then it strikes at the whole root of the tariff system. As I said, having persuaded the Government to change to the degree that they have, that system has been accepted as a central part of the Bill.
Baroness Blatch: My Lords, again, I am grateful to my noble friend for that intervention. It is a question of whether we move back towards the common law scheme and away from the tariff scheme. The Bill presently provides that the basic tariff award should be determined by reference to the nature of the injury alone. This amendment would additionally require that award to take account of the age and sex of the person applying for the award.
As we have made clear all along, there is no "right" amount of money that can compensate a victim for the pain and hurt they have suffered as a result of criminal injury—or most other types of injury, come to that. Any figure is essentially arbitrary. In our tariff scheme, therefore, we are no longer aiming to provide finely judged compensation on the same basis as hitherto; that is, with the aim of in some way trying to restore the victim to the position he or she would have been in had the injury not occurred. What we are aiming to provide is a tariff payment to reflect society's sense of responsibility for, and feelings of sympathy with, the blameless victim of a crime of violence. That is why we have gone for a straightforward tariff-based approach under which all applicants are treated in the same objective and transparent way and under which all receive a payment based on the injury they have received.
That is also why we have resisted persistent calls to adopt approaches which, in some way or another, will make the scheme more subjective and more complex. As your Lordships well know, these approaches have taken many forms—from selecting an award from somewhere in a wide band, as suggested by my noble friend Lord Carlisle, to giving percentage increases in certain circumstances, and to dealing with certain categories of case outside the tariff altogether. And now we have the suggestion that the award should take account of the applicant's age and sex.
All these suggestions would involve subjective judgment or, alternatively perhaps, reference to some sort of matrix of tariff awards which the typical applicant would find bewilderingly complex. All these suggestions would make the scheme more complicated to administer. They would all provoke more argument about what level of award would be appropriate, and that would in turn lead to more appeals. They would also, inevitably, lead to increased costs for the taxpayer, and greatly increase the difficulty of predicting what those extra costs were likely to be in any one year. And all these ideas would also slow the system down,
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negating some of the main advantages we see in a simple tariff approach; namely, speed, simplicity and certainty.
My noble friend Lord Campbell of Alloway asked about the word "circumstances" in subsection (5). That refers to the circumstances in which the criminal injury occurred as opposed to whether the person was beautiful or ugly, young or old, or whatever. My imagination is pretty fertile about a panel, however expert it may be, making subjective judgments about beauty and ugliness. It would be a minefield for subjectivity, would give rise to a great deal of concern among applicants, and would put an onerous task on the appeals panel.
We think that the tariff approach is the right one. It offers a simple, broad brush scheme that the average claimant can readily understand. I call upon noble Lords to reject the amendment.
4.30 p.m.
Lord McIntosh of Haringey: My Lords, the Minister does herself and the scheme much less than justice. She appears to believe that it is much less sensitive and flexible than it is, thanks partly perhaps to parliamentary pressure. It is a great deal more than a tariff scheme and it has many virtues which have been introduced by the Government since the setting up of the previous scheme.
The amendment provides that after subsection (2)(a), which reads:
"a standard amount of compensation, determined by reference to the nature of the injury",
shall be added the provision:
"and the age and sex of the person applying for the award".
That is not subjective; it is entirely objective. It requires no further exercise of discretion, judgment, delay or anything else which moves away from the tariff principle.
I was surprised to hear the comments of the noble Lord, Lord Carlisle, in describing the amendment as being the end of the tariff. It improves the tariff in the extent to which it maps against reality. It is not an improvement which in any way threatens the principle of the tariff. I repeat that it does not require claims officers to make subjective judgments. It requires them to work on a fixed tariff basis on objective criteria. They can make their judgments taking into account age and sex as simply as they can by identifying the injury.
The amendment does not require that as regards the different ages and sexes there should be a difference in the award that should be made, any more than there is a requirement that each individual injury should have a different amount of compensation. The tariff lists more than 300 injuries and only 23 bands of compensation. Many different injuries fall into the same band, and that would remain the case. I open the tariff at random and see "Torso: loss of spleen". I cannot imagine that as regards loss of spleen there would be a difference between the different sexes or ages. As regards "Torso: damage to testes", clearly that applies to only one sex. As regards "Torso: dislocated hip—full recovery", one would not need to make a distinction between the

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different ages and sexes. However, as regards a visible injury or an injury related to the physical sexual characteristics, there is the possibility of making such a distinction.
With due respect to the noble Lord, Lord Carlisle, it does not mean that the list of 310 injuries will suddenly become a list of 3,100. There could be a single column list because the level and the tariff payment map 100 per cent. against each other. It would mean that in the space of the single column there would be a number of columns for each of the same number of injuries. There is no threat to the tariff scheme, nor to the ability of claims officers—even those relatively unskilled in the law or medicine—to assign injuries to a particular band and therefore to make speedy judgments.
The argument for the amendment is that it is in favour of a tariff scheme which accords more closely with what we all know to be the reality. I am deeply disappointed that the Government have not felt it possible even to recognise that in the future and in the interests of the tariff scheme they may wish to introduce an amendment along these lines.
Baroness Blatch: My Lords, perhaps I may intervene on that point. It is not necessary for the Government to speak their mind on what may or may not happen in the future. If enacted, it would be possible under the Bill for the authority to decide. If as it carries out its duties over time it becomes aware that there is a category of injury which should be properly recognised and incorporated in the tariff, there is a proper mechanism for doing so. It would then be for the authority to recommend that to my right honourable friend, who could recommend to Parliament a change in the tariff scheme.
Lord McIntosh of Haringey: My Lords, I accept that and am grateful for it. However, would it not have been better if the Bill had recognised that there is no defect—indeed, that there is a positive advantage—in having a tariff scheme which is recognisably real and recognises real differences? Let us hope, as with many of these arguments, that in the future the Government will see the light more clearly than they have in the past. This is not an issue on which I believe your Lordships should take a formal view, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 5:
Page 2, line 6, at end insert—
("( ) an additional amount of compensation to be paid to a woman to whom a standard amount for rape has been awarded and who has become pregnant as a result of the rape, which amount may be different in the case of each of the following events—

(i) a child born alive which she intends to keep;

(ii) a child born alive which she has given up or intends to give up for adoption;

(iii) the pregnancy has ended in miscarriage;

(iv) the pregnancy has ended in an abortion.").

The noble Lord said: My Lords, this amendment is different from that which we introduced in Committee when we were concerned about the effects of the criminal injury of rape. In many ways the law relating to rape is still evolving and is unsatisfactory. After all, it became clear only in recent years that under English law rape in marriage is illegal. However, many aspects relating to rape appear in the scheme in an almost medieval form. The scheme refers to the victim's character and conduct, which could well be interpreted by a malign authority—I do not say that the authority will be malign—as meaning that those engaged in the sex industry or in criminal conduct are less entitled to the protection of the law than other women. The fundamental principle behind our approach to injuries resulting from sexual offences should be that all women—and, indeed, all men—are entitled to the protection of the law.
The scheme allows claims to be disqualified because of delays in reporting to the police or claiming compensation. That is the essence of the time-limit argument. It is difficult to see where in the scheme there is adequate recognition of the trauma which arises as a result of sexual abuse, sexual offences or of the fear which the victim may have not only of the offender but of the reaction of the police in reported rape. Those are serious matters and there is plenty of evidence to show that women are afraid of the perpetrator of the offence, of the possible reaction of the police and of what may happen during the course of the trial. I wished to restate those facts of life as regards sexual offences and the effect on the victims of such offences.
The amendment refers to a particular aspect which is inadequately dealt with in the tariff. It is the amount of compensation to be paid to a woman who has been raped. There is provision for a standard amount of compensation for rape and there is a figure for pregnancy as a result of the rape. However, we suggest in the amendment four different outcomes from pregnancy as a result of rape—there may be more—which deserve separate recognition in the tariff.
The first is rape resulting in a child which the woman intends to keep. The second is a child born alive which is given up or intended to be given up for adoption. The third is a pregnancy that has ended in miscarriage; and the fourth is a pregnancy that has ended in abortion. The differences may be traumatic in the case of adoption; they may be financial in the case of a child who is being kept and brought up; or they may be physical in the cases of miscarriage and abortion where the effect on fertility may take a long time to emerge.
Although there are attempts to recognise and provide a flexibility for some of the different outcomes of rape, it seems to us that there is a case for recognising more formally the different outcomes as a result of criminal rape.
Again, this is not an amendment which I wish to push to a vote because it is not necessarily a matter which would have to appear on the face of the Bill although we have to treat it that way in order to have a debate on the matter. I am looking for a recognition by government that there are those different outcomes; that

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they deserve special recognition in the tariff; and that there are very significant financial differences. We are looking for a tariff that accords more closely with reality. I beg to move.
Baroness Blatch: My Lords, perhaps I may say at the outset to the noble Lord that there is no standard amount for rape because the tariff as it is now set out is extremely sensitive to the different situations in which rape may occur.
This amendment considerably extends the provision in the 1990 scheme, which we have carried forward into the new one, whereby if a woman bears a child as a result of rape and decides to keep it an additional £5,000 is paid to her.
As has been widely recognised, we have incorporated many of the elements of the current common law damages scheme in our draft proposals. But I am afraid we must resist novel extensions of the kind put forward here. The rationale for the present position is that a woman who keeps a child in these circumstances is likely to be put to some additional expense which, while not quantifiable in precise terms, ought to receive some tangible recognition. This amendment, as the noble Lord explained, attempts to address the trauma associated with other outcomes of pregnancy following rape. But these outcomes will already be reflected to a degree in the tariff award for the rape itself, since that figure is based on the median award from a wide range of circumstances considered under the 1990 scheme.
Furthermore, where the rape has resulted in mental trauma of the kind covered by the provisions in the tariff scheme for shock, the award would be increased. Indeed, there might be cases where the mental trauma itself attracted the highest award for shock—namely, £20,000. One cannot be wholly definitive. I do not know whether a subsequent situation such as infertility arising as a direct result of the injuries would be a matter for reconsideration by the authority. But certainly rape is a criminal injury and is dealt with very sensitively in the scheme. I believe that trauma also encompasses many of the other aspects referred to by the noble Lord. Therefore, I hope that he will not press the amendment.
Lord McIntosh of Haringey: My Lords, the Minister is right that if you take together the series of references in the tariff to sexual assault and to shock, it may mean that there is a level of flexibility. But of course, that is achieved only by, in effect, shock opting out of the tariff. Shock is dealt with only in the form of note 4 to the tariff which sets out the range of components of shock without actually saying what the tariff band should be.
It is true that there are six different levels of banding for sexual assault ranging from minor indecent assault to non-consensual intercourse. To that extent, the Minister is right to say that there is no standard tariff for rape. Indeed, there are three different payments according to whether there was one or more attacker and whether there are other serious bodily injuries. But that still does not recognise the range of financial effects which occur in the four different cases of pregnancy after rape to which I referred. In all of these amendments the Minister will accept that we are not
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attempting to be destructive or to break away from the tariff and deny the advantages of an enhanced tariff scheme. We are seeking to make the tariff better. I still believe that the tariff is woefully inadequate in the consideration of the effects of pregnancy after rape. I still believe that in the end the tariff scheme will have to recognise the factors to which I have drawn attention in the amendment. I gladly give way to the Minister.
Baroness Blatch: My Lords, perhaps I may correct one assumption which the noble Lord made; that is, that shock is relegated to no more than a note at the end of the tariff. There is an attempt to describe ranges of shock from disabling temporary anxiety right through to permanent mental disorder with awards extending from £1,000 up to £20,000. There is an additional note as to what can be taken into account when considering a shock award.
Lord McIntosh of Haringey: My Lords, that is right but I wanted to spare the House a listing of the very crude distinctions made in the five categories of shock which are allowed: disabling but temporary mental anxiety medically verified; disabling mental disorder confirmed by psychiatric diagnosis with three different time bands; and permanently disabling mental disorder confirmed by psychiatric prognosis. When those criteria are applied to the huge range of forms of shock which are set out in the note, it will be recognised that we are at a very early stage as regards including adequate recognition of shock in the tariff. The Government recognise that because they know and have acknowledged—I give them credit for it—that the Criminal Law Revision Committee is still working on the issue and will make recommendations which I imagine will have to be incorporated in the tariff. I appreciate that we are not there yet.
With this simple and obvious amendment, we are hoping to anticipate what might come from the deliberations of the Criminal Law Revision Committee. I have put the issue on record in Hansard. That is the best we can hope to do at the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 6:
Page 2, line 6, at end insert—
("( ) standard amounts of compensation to be paid to persons who have sustained criminal injury by stabbing other than to internal organs, tendons or ligaments.").
The noble Lord said: My Lords, this is an issue to which we did not refer directly in Committee. However, the issue of stabbing is still causing anxiety to those concerned in particular with personal injury law who feel that the tariff is inadequate in one respect.
In consultation with the department we have been told that stabbing, particularly stabbing to the torso, is recognised by references to injuries caused to organs and that stabbing other than to the torso, or indeed sometimes to the torso itself presumably, can be recognised by injuries to tendons or ligaments. No one

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with as little knowledge of human physiology as I have should stand at the Dispatch Box to move an amendment of this kind but I am assured that there are results of stabbing other than injuries to internal organs, tendons and ligaments which are recognised in common law; which attract compensation when they arise as a result of accidents at work or medical negligence—because stabbing need not be deliberate and criminal—and which could, without too much difficulty and without stretching too greatly the tariff, be recognised in the tariff. This, again, is an amendment to the Bill because that is the way we have to deal with it. We are not looking for it to be on the face of the Bill; we are looking, because this is a probing amendment, for some recognition that there are injuries resulting from stabbing which are at the moment excluded from consideration and could well be considered. I beg to move.
Baroness Blatch: My Lords, I believe that the noble Lord makes a wrong assumption in that injury caused by stabbing can of course include damage to internal organs but it can also include scarring and trauma. All of that can be taken into account when an application is made.
The approach in the tariff, both in the description of injuries and the standard amounts of compensation assigned to each one, is taken from current practice in personal injury cases. It focuses on the effects of the injury, as that is what compensation is for, rather than the means by which the injury was inflicted. Thus, in relation to puncture wounds, which of course may be caused by any number of methods and implements, the tariff provides for scarring, soft tissue damage (tendons, ligaments etc.) and damage to internal organs, with special provision for laparotomy where an abdominal wound has required internal surgical investigation.
That is the correct and logical approach. To attempt to single out stabbing as a separate category, in cases where no significant internal damage results, would be inconsistent with current practice. There is no reason to differentiate it from all the other extremely unpleasant ways in which a person may be violently attacked. Compensation must be based on the physical and mental injury caused. The tariff represents a massive survey of the injuries which the board has actually come across in its work. For example, in the case of injuries to the upper limb (hand, arm, shoulder), the tariff lists numerous injuries, including paralysis, permanent serious impairment of grip and scarring—which may well have been caused by stabbing or some other means. Nevertheless, if a new injury cropped up which could not rightly be placed in one of these descriptions, as I have said before, it could be added under the procedure for new injury descriptions. The amendment, as well as being inappropriate to the Bill—the noble Lord has made that very point—could not assist in shaping whatever changes might be required to the tariff in the future. I hope that the amendment will not be pressed.
Lord McIntosh of Haringey: My Lords, it was never my intention to press the amendment, as I made clear when I moved it. The Minister is, of course, correct in
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that fundamentally the tariff must reflect the effect of the injury rather than the way in which the injury was caused. We accept that. What we are doing is taking this as an example of the way in which the tariff is as yet in an incomplete state. The Minister recognised that when she referred to the provision for the inclusion of new injuries. I suspect that something along these lines may well have to be included in the tariff as a new injury in the coming years. It may not be described as stabbing, because of course stabbing is the means rather than the effect. There are gaps here as regards human physiology which may not have arisen in the extensive sampling to which the Minister referred but which will undoubtedly occur in the future. I do not regret having drawn attention to the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Claims and awards]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 7:
Page 3, line 7, after ("Scheme") insert ("and for such periods to be extended in the circumstances of any particular case if in the opinion of the person determining the claim it is just and reasonable to do so").
The noble Lord said: My Lords, Amendment No. 7 refers again to the issue of time limits for the submission of applications. When I proposed in Committee the extension of the normal time limit from two to three years I was politely mauled by the noble Lord, Lord Carlisle, who suggested that applicants tend to wait until the last minute and would do so until the eleventh month of the third year just as much as to the eleventh month of the second year. I was not entirely convinced by that argument, despite the noble Lord's undoubted expertise. It seems to me that if people think they will get any money out of the scheme they will want it as early as possible rather than leaving it to the last possible minute. Nevertheless we withdrew the amendment on that occasion. We are not seeking here to change the fundamental time limit, but we are drawing attention to the point which was effectively brought home by the noble and learned Lord, Lord Ackner, when he said that extensions to the time limit should be allowed only in exceptional cases. He described clearly to the Committee the legal definition of "exception" and the limited way in which it is intended to be applied in the law.
I am no lawyer, as I am evidently no human physiologist, but nevertheless I was impressed by the noble and learned Lord's arguments. It seemed to me that, rather than use the word "exceptional", which is what the scheme uses at the moment, there ought to be some way of providing a more ready extension in suitable cases. One of the suitable cases—this matter was supported by the noble Lord, Lord Hylton—is the recognition of injuries which become apparent only when the victim reaches the age of 18 or more. I refer particularly to child abuse and child sexual abuse. I still think that that is not adequately covered in the wording. If we used the phrase, "just and reasonable", which I understand has a legal meaning different from "exceptional", perhaps we might make progress.
Again this is a probing amendment. If carried, it would put on the face of the Bill matters which could properly come into the scheme and achieve parliamentary control in that way. We look for an indication from the Minister that this is a failing in the scheme as at present drafted and that the Government recognise that failing and are prepared to make attempts to remedy it. I beg to move.
Lord Ackner: My Lords, as far as I can recall there was a fair measure of harmony in regard to this subject because the noble Lord, Lord Carlisle of Bucklow, while adhering to his view that two years was a reasonable period, added to the situation by saying that a proper degree of discretion must be provided to the appropriate authority to extend that period where necessary, and "exceptional circumstances" was generally accepted—I think by the noble and learned Lord the Lord Advocate—to he a restricted phrase which needed looking at again. This is what appears to have occurred here: there is a wide measure of discretion while compromising in accepting the two-year period. I would respectfully suggest to the Chamber that that seems a reasonable approach to have taken.
Lord Carlisle of Bucklow: My Lords, I understand—or I hope—that the Minister will say that the sensible proposals of the noble and learned Lord, Lord Ackner, will now find their way into the scheme and the words "just and reasonable" may possibly replace "exceptional circumstances". Having pleaded guilty to stretching the words "exceptional circumstances" quite unreasonably on every occasion that I consider these matters, I suggest that, if it is the intention of the Government, as they have indicated, to change the current scheme in certain ways to meet the proposals in the new scheme as regards structured settlements, they might take the same opportunity to change the words in the current scheme. In that case I shall not have to indulge in such an acrobatic performance every time that I find exceptional circumstances have been met, when clearly, as the noble and learned Lord, Lord Ackner, said, no such thing has occurred at all.
5 p.m.
Baroness Blatch: My Lords, I am aware from the thoughtful debate that we had on the issue in Committee that many noble Lords are unhappy with the wording in the present draft of the scheme which says that time limits can be waived "in exceptional circumstances". There was a feeling that, although that term was generally interpreted sensibly and liberally under the present arrangements by my noble friend Lord Carlisle—who has just made a confession on the issue—such a liberal interpretation might not always be applied and the term might be considered too restrictive.
We have thought hard about this issue since then, and I can tell the House that we shall be offering an alternative form of words in the next draft of the scheme. The words we envisage being part of the scheme are as follows:
"A claims officer may waive the time limit where he considers that, by reason of the special circumstances of the case, it is reasonable and in the interests of justice to do so".
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That wording is not too dissimilar to the words offered by the noble Lord, Lord McIntosh, in his amendment, but perhaps I should explain briefly why we have chosen those rather different words.
First, we believe that there needs to be some reference to the circumstances of the case, which, if not exceptional, ought at least to be different from the ordinary run of cases, and to that extent special. Secondly, it needs to be reasonable for the time limit to be waived, by which we mean, among other things, that there must be some prospect of securing sufficient evidence to support the claim without disproportionate effort or cost on the part of the CICA or anyone else. Thirdly, it must be in the interests of justice that the time limit be waived. We have gone for that phrase rather than the simple word "just" because we have used the phrase elsewhere in the draft scheme.
In the light of that assurance and explanation, I hope that all noble Lords, and in particular the noble and learned Lord, Lord Ackner, my noble friend Lord Carlisle and the noble Lord, Lord McIntosh, who proposed the amendment, will accept that we have done our best to address this very real point of concern.
Perhaps I may also take this opportunity to say that, if it had not been for preparing for this stage of the Bill, it is possible that the most recent draft of the scheme would have been available to noble Lords. I promise that the scheme will be seen by noble Lords before Third Reading so that they will have an opportunity not only to see the words on the page but also to see for themselves other parts of the tariff and the scheme.
Lord Ackner: My Lords, before the noble Baroness sits down I wonder whether she will consider changing "special circumstances" to "particular circumstances". I should have thought that that would ensure that one has regard to the particular circumstances of the case and does not look for those circumstances to be special. It is my recollection that on the previous occasion the noble Lord, Lord Carlisle, referred to how frequently in child abuse cases the period was overrun. If one uses the word "special" it may prove a stumbling block in that type of case.
Baroness Blatch: My Lords, on the face of it, I can see no reason to oppose the suggestion. However, the noble and learned Lord will understand that I must check that with officials. Certainly I shall give the matter consideration.
Lord McIntosh of Haringey: My Lords, again, before the Minister sits down, since we are at Report stage—and I shall respond to her other points later—perhaps I may ask her on the point raised by the noble and learned Lord, Lord Ackner, whether we can be sure that, whatever wording is finally adopted, whether it is "special" or "particular", there is explicit recognition of the kind of injuries which become apparent only a very long time after the offence has taken place. I am thinking in particular of the appearance in adulthood of the effects of child abuse and child sexual abuse. Will the noble Baroness bear that in mind, as she has undertaken to consider the wording?
Baroness Blatch: My Lords, throughout the afternoon I have been extremely remiss in not asking

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the leave of the House to intervene on such questions. I do so on this occasion. I say to the noble Lord that of course we will go away and think about anything that is suggested from the Dispatch Box. However, I believe that we need to leave it to the Criminal Injuries Compensation Authority to make judgments about a particular case. Clearly, evidence to support a claimant will be a very important consideration for the authority in considering a claim.
Lord McIntosh of Haringey: My Lords, I am grateful for that response. The Minister has sat down. She has not been at all remiss in not seeking the leave of the House. She has spoken only entirely in accordance with the rules. On the last two occasions she has done so without formally resuming her seat. That is entirely proper and does not require the leave of the House.
Clearly, we have achieved as much as we can expect on this issue. I am disappointed to find that it is my fault that the draft of the scheme did not come before your Lordships before Report stage. I did not think that I was creating so much work with the amendments that we have put down as to affect the timing of the scheme. We are glad to learn that the draft scheme will be available before Third Reading. We hope that it will be available tomorrow or on Thursday so that we can give it adequate consideration in time to put down amendments, if necessary, for Third Reading. However, we are pleased that the details of the scheme will be available.
Regarding the new wording which the Minister is considering, these are clearly moves in the right direction. I shall not go further than that. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Lord Carlisle of Bucklow Lord Carlisle of Bucklow moved Amendment No. 9:
Page 3, line 20, at end insert ("; or
(c) by not less than two members of the Board of Adjudicators in any case that may be referred to them for determination by the Scheme manager or the claims officers.").
The noble Lord said: My Lords, with this amendment we move away from the issue of the tariff and turn to that part of the Bill which deals with how claims are to be dealt with. The purpose of the amendment is to allow for the possibility that, rather than an application having to be considered on paper by a claims officer, where appropriate it could be referred immediately to a hearing by two or more adjudicators.
The situation is clear. In this aspect the Government have made a deliberate change from the present situation. What is proposed is set out in paragraph 46 of the draft, which states:
"The application will be determined by a claims officer and a written decision sent to the applicant or his representative".
Paragraph 22 of the current scheme begins:
"The initial decision on an application will be taken by a single member of the board or by any member of the board staff to whom the board has given authority to determine applications on the board's behalf'.
It continues—and this is where the difference occurs because these words are not included in the new scheme:
"It will also be open to a member of the board or a designated member of the board staff, where he considers that he cannot make a just and proper decision himself, to refer the application for a hearing before at least two members of the board".
I believe that such a provision will be found in practice to be essential in the tariff scheme.
That is a power which we have at present. I am told that in the past year we used it on something like 960 occasions. That may seem a large number. However, when taken against a rate of application of 60,000 to 70,000 cases a year it means that it is used in about 1 to 2 per cent. of the cases that come before us. I believe that it is vital in those cases. It would strengthen the Bill enormously were the same provision to apply in this case.
There are two types of case where I believe such a power would be helpful. The first is where there is a complete conflict of evidence, and the second (and this should appeal to the Treasury) is where there are substantial and complicated claims for damages.
To deal with the first, often in practice there are cases where one is faced with two totally conflicting accounts of an alleged assault. The applicant claims boldly that he was assaulted. His alleged assailant makes an equally bold assertion to the police that he was acting in self-defence. The CPS decides that in the circumstances there is insufficient evidence to prosecute, and the police may not wish to express any view as to which account they give veracity to.
In those circumstances, it is difficult to decide on paper whether one should make an award. Surely, it would be far better for the matter immediately to be referred to a hearing—as it can be at the moment—so that members of the adjudication panel in future, or members of the board at the moment, should have a chance to assess the matter in deciding whether to accept the person's account and whether or not to make an award.
Noble Lords may say that that could always be avoided because in such cases the application could originally be refused by the claims officer and the man could be forced to apply for a hearing by way of appeal. I should have thought it more just and reasonable that one should have the powers that we have at the moment immediately to refer it to a hearing in the first place.
The second type of case in which the power is important is that where complicated claims for damages are involved. I take the case of someone who has been seriously injured and a claim is put in for future care or future loss of earnings. I am glad to say that under the tariff as against the original abortive tariff, provision is made for loss of earnings and future care. However, I believe that many cases will be found in practice to be of a complicated nature where it will be impossible to decide on the real figure without some form of oral hearing.
What happens in the case of a claim for loss of earnings or future care is that the applicant puts in a schedule. It sounds impressive. It is a schedule of future

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loss based on a statement that the man is unable to work. A schedule is promptly put in saying that he will be unable to work for life. It states that the appropriate multiplier is 15, that the multiplicand is £10,000 a year, and that the claim therefore is £150,000. Equally, in a case for future care, those who have been involved in that type of work will know that there are certain highly experienced professionals who put in magnificent schedules on the additional care required for a person who is likely to be permanently invalided as a result of the injury he suffered. These can be schedules of changes required to accommodation, or of the amount of extra help needed, and matters of that nature. Often, when probing such cases by questioning the individuals concerned, one may sometimes find that the schedule bears little relation to real life. A person claiming many thousands of pounds for future care has, it turns out, been coping perfectly happily over the past so many years with a much lower level of assistance and intends to continue doing so in the future.
In cases for loss of earnings and for future care, we on the board have found that by referring an individual to a hearing so that the individual, his counsel or his representative can be questioned on the basis of the schedule, on some occasions at least the final award is considerably different from the original sum asked for.
If claims are merely to be dealt with on the basis of what appears in the papers, I do not see what alternative the claims officer will have other than to accept at its face value every schedule put before him. I believe that the Treasury, among others, will regret that there is no power to refer those types of cases to scrutiny by examination and questioning by the people who have to make the awards.
Therefore, I cannot see the Government's great objection—as I understand it to be—to the proposal. I am told that it is twofold. First, I am told that it is vital that those who are at the appellate level should have nothing to do with the original decision. However, so far as I know, we have not been criticised in practice for the system that has now been running throughout the life of the Criminal Injuries Compensation Board. That appellate body or the body which holds the hearing always consists of two or more members and is, of course, itself subject to judicial review. I do not believe that unfairness has been occasioned in any case because the decision has been taken immediately at the hearing stage rather than originally at the papers stage. The second reason for the objection is, I understand, to do with market testing. Should market testing mean that the authority was eventually "farmed out"—if that is the phrase—to an outside body, one could not have any connection whatever between the panel and the claims officers. Again, I cannot see that that is a valid argument against what I believe to be a sensible provision.
I add that since the administrative costs of the board run at slightly under 9 per cent. per annum, I am not sure what body will be anxious to take it over in the private sector after the market testing has taken place. That apart, even if the process were put out to tender, I cannot see why it should affect the right of a claims officer—who will he the individual looking at the papers in the first place—to decide that a certain aspect is one
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which he cannot justly and fairly decide on the papers and that it is necessary for him to see in person the applicant and his representatives. It is in an attempt to improve the administration of the scheme that I move the amendment.
5.15 p.m.
Baroness Blatch: My Lords, I hope that I can be helpful to my noble friend. As he knows, under the present scheme individual members of the board and, where appropriate, its staff take the initial decision in a case on documentary evidence alone. Appeals against such decisions are considered by a number of board members at oral hearings. Where a board member considers that he cannot take an initial decision on the papers, he may refer the case for an oral hearing before a number of members. That decision is final and there is then no right of appeal against the board's decision.
Under the tariff scheme, however, the arrangements will be different. There will be a clear separation of the initial decision taking process and the appeals function. The initial decision will be taken by a claims officer in the criminal injuries compensation authority. Appeals against those initial decisions will, following review, be considered by the appeals panel. That is a completely separate and independent body.
Under the tariff scheme, it is for the claims officer alone to take the initial decision and for a more senior officer in the authority to carry out any initial review of that decision. If the authority were able to refer cases directly to the appeals panel for first decision there would then be no further body to which the claimant could appeal if he were dissatisfied with the panel's decision. We consider a completely independent appellate body to be a central element in the new arrangements and one that can only be in the interests of claimants. To allow an initial determination to be made by the panel itself would risk compromising that independence.
We accept that there are bound to be more complex and more difficult cases such as those described by my noble friend in speaking to this amendment. If the authority felt it appropriate, therefore, there is absolutely no reason why it should not itself arrange a "hearing" on an informal basis to help a decision to be reached in a particular case. We should not expect there to be many such cases, since a refusal would normally follow if the authority was not satisfied, on the balance of probabilities, that a claim had been established. The claimant would then be able to exercise the right to request a review and, if necessary, to appeal to the appeals panel, which would not in any way have been involved in the earlier decisions. The informal oral hearings could be arranged by the board and, depending on the outcome of that deliberation and determination by the authority, the decision could be challenged. A review could then take place of that decision. Clearly, if the claimant continued to be unhappy, the whole of the rest of the appellate procedure could be put in train.

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Therefore, in a way, we have not only met the concerns of my noble and learned friend; we have added a sophisticated appeal system which is an improvement on the present system.
Lord Carlisle of Bucklow: My Lords, I am glad that my noble friend the Minister accepts that there will be cases that require an oral hearing. I am not convinced that an oral hearing before the claims officer, who will perhaps be—I say this without any derogatory intention—a quite junior civil servant, would necessarily be of a higher standard than a hearing between members of the adjudicating panel, who, as I understand it, will be drawn from the public and will include lawyers, doctors and others. At least I have made the advance that it is accepted that some cases will require a hearing rather than being able to be dealt with on paper. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 11:
After Clause 3, insert the following new clause—

Criminal Injuries Compensation Bill

  MULTIPLE INJURIES
  (". The Scheme shall provide for the calculation of the standard award for a person who has sustained two or more criminal injuries (provided each of these would otherwise attract a Tariff award at level 12 or above) to be made—

  (a) for the most serious injury, at the full standard amount for that injury determined in accordance with the Tariff;

  (b) for the next most serious injury, at 50 per cent. of the standard amount; and

  (c) for the third most serious injury, at 25 per cent. of the standard amount.").

  The noble Lord said: My Lords, we debated the issue of multiple injuries at some length in Committee. I am not returning with the same proposition. I return to the matter, however, because outstanding questions arise from the consideration of multiple injuries in the tariff as at present drafted.
  We proposed in Committee that there should be special consideration for multiple injuries at level 7 and above. We are now saying that there should be special consideration other than that presently proposed for injuries at level 12 and above. Examples of injuries at level 12 would be, for instance (taken at random), serious disfigurement of the face from scarring or permanently impaired balance as a result of injury to the skull. Both of those injuries would give rise to compensation of £7,500 and so on to larger amounts.
  In Committee, we queried whether the proposal to give for a second injury 10 per cent. of the award that would otherwise he made, for a third injury 5 per cent. of the award that would otherwise be made and for any subsequent injury nothing at all was just. It was clear that the decision was arbitrary. I do not deny that the 50 per cent. that we propose for the second injury and 25 per cent. for the third are also arbitrary. The justification for the 10 per cent. and 5 per cent. has been given; namely, they arise from the sampling process. That may well be so. But the numbers of cases in the 20,000
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  sample of multiple injuries, and certainly the number of cases of multiple injuries at level 12 or above, will be so small that the sampling process is quite inadequate.
  When we were told that the 10 per cent. and 5 per cent. were generous in relation to the findings of the sampling process, it was admitted that the sampling process had covered injuries at all levels, right down to the minimum level of £1,000. Therefore I do not believe that evidence from the 20,000 sample is at all relevant to the case that we put forward. It is not based on sampling; it is based on a common sense recognition that people who have two or more injuries as serious as the two examples that I gave—and there are dozens, if not hundreds, more in the tariff—will be seriously affected.
  Quite apart from anything else, if there is more than one injury at that level, the trauma of the physical attack itself may not be recognised as a trauma under the provisions for shock. It may not be psychiatrically diagnosed; or there may be no psychiatric prognosis. However, it must still be pretty serious. It must have been a violent occasion when the injury took place, and it must have had a very considerable effect on the victim's future, on his or her self-confidence and ability to lead a normal life.
  Therefore, without claiming anything magical for the figures in particular, I draw attention to the differences between this and the amendment that we put forward in Committee. I draw attention to the fact that we refer only to quite serious criminal injuries. I suggest that the suggested levels of 50 per cent. and 25 per cent. are much more realistic and much more in accordance with what we know to be the case.
  Finally, on a point about public expenditure, it was made clear that the numbers with multiple injuries are quite small. The numbers of multiple injuries at level 12 and above will clearly be very small. I suggest that the public expenditure consideration will not he of great import. I beg to move.
  Lord Carlisle of Bucklow: My Lords, very briefly, I support the remarks of the noble Lord, Lord McIntosh, on this amendment. When we debated this matter in Committee, I suggested to the Minister that in the cases decided under the tariff scheme that we had to review we found that the one area of real unfairness was the way in which the approach to multiple injuries had worked in practice. Of course I accept that originally the proposals were based on a review of awards by the Criminal Injuries Compensation Board. But in most multiple injury cases, two injuries are related to each other. A second injury may mean very little difference compared with the original injury. In other words, if you have a broken nose and a scar on the lip, although there are two injuries, the second injury may have little effect.
  The noble Lord, Lord McIntosh, refers to a case where there are two major injuries which of their nature are likely to be totally distinct. For example, to take level 12 in the tariff, it seems very hard to say that the person who is partially permanently blind in one eye and at the same time has a fracture of both femurs should receive only 10 per cent. of what would be reasonable compensation for the fracture of both femurs.

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  The fact is, such an injury will be just as grave to him whether or not he has been partially blinded in the same attack. Therefore I hope that the Government will be sympathetic to the aims of this amendment. I hope that they will try before Third Reading to come forward with a proposal that is more generous than the 10 per cent. and 5 per cent. levels that presently exist, and particularly where the types of injury are completely distinct rather than in any way related to each other.
  Lord Ackner: My Lords, I, too, support the amendment. The second injury may prove, by reason of the first injury, to be more disabling than it would have been on its own, and a fortiori the third injury because the vulnerability of the person injured has been increased by the second injury and increased again by the third. There can therefore be circumstances where even the 50 per cent. and 25 per cent. amounts will be poor compensation. To keep to the Government's figures is to add insult to injury.
  5.30 p.m.
  The Lord Advocate (Lord Rodger of Earlsferry): My Lords, as the noble Lord, Lord McIntosh, said, we had considerable discussion on this matter in Committee. At that stage my noble friend made it clear that there could be no question of assessing multiple injuries other than on the basis of the tariff and that the formula proposed in this draft scheme had been chosen after careful analysis of the data obtained from the extensive sampling exercise undertaken to set the original tariff.
  I recognise that the amendment deals with a rather more limited range of injuries. Nonetheless, it is right to stress that the figures that have been put in, which on the face of it may be thought by some of your Lordships to appear slightly mean, have not been arrived at by some whim. They have been put in as a result of a study and analysis of the practice of the board. That shows that there is little evidence that multiple injuries have led to larger awards. In fact, as was said on the last occasion, the median award for two more serious multiple injuries was in fact less than the median award for one such injury. Three injuries or more produced median awards only 10 per cent. higher.
  Lord McIntosh of Haringey: My Lords, perhaps the noble Lord will allow me to intervene. Is he saying that the analysis which he describes was of more serious injuries? I thought that the analysis was of all qualifying injuries.
  Lord Rodger of Earlsferry: My Lords, the multiple injuries were what we were concerned with.
  Lord McIntosh of Haringey: My Lords, is that at all levels?
  Lord Rodger of Earlsferry: My Lords, the median award for two more serious multiple injuries was in fact less than the median award for one such injury. That is what the study showed.
  Lord McIntosh of Haringey: What, my Lords, does the Minister mean by "more serious"? At what level is it more serious?
  Lord Rodger of Earlsferry: My Lords, at the moment I cannot give that to your Lordships by reference to one of the levels of the tariff. Maybe I shall be able to do so if the information is made available.
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  In order to make quite sure that this was not some freak that had been thrown up by the analysis, care was also taken to consider the Judicial Studies Board's approach to damages for multiple injuries. The guidelines there also showed that in cases of multiple injury, most of the award was made for the most serious injury with very little added on for additional lesser injuries. That explains why the formula that is in the scheme has been adopted. It is even possible to say, in the light of the analysis, that the formula errs on the side of generosity. I am informed that more serious injuries were those which attracted an award of more than £1,000.
  It has been said, and stressed by my noble friend Lord Carlisle, that there may be cases where there are two very disparate injuries—for example, the loss of an arm and a leg. It was perhaps that kind of situation also that the noble and learned Lord, Lord Ackner, had in mind. I accept that that is so. But it is also right to say that a study of the pattern of injuries dealt with in the scheme shows that such injuries are in fact extremely rare and far more often the injuries are closely connected. Therefore, it is on that basis that we have proceeded.
  If, on the other hand, such a rare combination of injuries were to arise and either the authority or indeed the appeals panel felt that they should be included as a new category of injury—in the same way, for example, as the loss of one leg and the loss of two legs are regarded as separate categories of injuries in the proposed scheme—the authority is quite free to make an appropriate recommendation to the Secretary of State in terms of paragraph 20 of the draft scheme. If my right honourable friend shares that view, he can then invite Parliament to add the new injury description to the tariff. In the meantime, the authority will he able, in terms of paragraph 21, to make an interim award of up to half the amount which was recommended as the appropriate tariff for the new injury.
  It was also said that the financial consequences of adopting the noble Lord's amendment would not be great. But I am not going to put any great stress on it. But it is fair to say that the estimate is that it would add another £2 million annually to the cost of the scheme. That is not a great amount in the overall context, but when one is dealing with various claims for funds to be used in various ways it is nonetheless a sum which we cannot overlook.
  We have said—we have made no secret of the fact—that a major intention of the Bill is indeed to keep the costs of the scheme under control. Inevitably, that involves some compromises. This is one area where we believe that overall the balance of the scheme is right, the matter having been dealt with, as I indicated, on an analysis of the practice of the board hitherto.
  Lord McIntosh of Haringey: My Lords, that was an extraordinary answer. First of all, the Minister attempted to say that his analysis was of more serious injuries. When challenged, he had to admit that it was not an analysis of more serious injuries but an analysis of all injuries from band 1; in other words, all those included in the tariff which is £1,000. The brief ought not to have used the phrase "more serious" when in fact it relates to all injuries in the tariff.

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  Secondly, the Minister said that those multiple injuries were extremely rare. We knew that. That is the basis on which I said that there was no significant increase in public expenditure. Particularly at level 12 and above, which is what I was talking about in the amendment, they will be extremely rare. They will be a tiny proportion of the multiple injuries at level 1 and above, which include multiple minor injuries, that the Minister was analysing to give support to his conclusion that 10 per cent. and 5 per cent. were generous figures.
  I am afraid that the analysis simply does not add up as an answer to the case that has been put. It certainly does not add up to combine in the same answer the admission that these cases are extremely rare and the claim, the estimate, that the cost will be £2 million. I do not believe that the Government could possibly know that it will cost £2 million. I do not believe that they have done an analysis of multiple injuries at level 12 and above. To be fair, I do not think that they have had time to do it since the amendment was tabled. If they had done an analysis of the multiple injuries at level 12 and above, they should have been able to come forward with an estimate of what the awards would have been under a common law scheme.
  No, the answer is self-contradictory. It does not hang together at all. I am sorely tempted to take the opinion of the House on the matter. In fact, I shall do so.
  5.39 p.m.
  On Question, Whether the said amendment (No. 11) shall be agreed to?
  Their Lordships divided: Contents, 66; Not-Contents, 131.

  Division No. 3

  CONTENTS

  Ackner, L. [Teller]

  Healey, L.

  Addington, L.

  Hollis of Heigham, B.

  Airedale, L.

  Hylton, L.

  Archer of Sandwell, L.

  Hylton-Foster, B.

  Bancroft, L.

  Jenkins of Hillhead, L.

  Barnett, L.

  Jenkins of Putney, L.

  Beaumont of Whitley, L.

  Kilbracken, L.

  Blackstone, B.

  Kintore, E.

  Broadbridge, L.

  Kirkhill, L.

  Brookes, L.

  Lockwood, B.

  Brooks of Tremorfa, L.

  McIntosh of Haringey, L.

  Callaghan of Cardiff, L.

  McNair, L.

  Carlisle of Bucklow, L.

  Mallalieu, B.

  Clinton-Davis, L.

  Merlyn-Rees, L.

  Cocks of Hartcliffe, L.

  Monkswell, L.

  Craigavon, V.

  Monson, L.

  Dean of Beswick, L.

  Morris of Castle Morris, L.

  Derwent, L.

  Nelson, E.

  Donoughue, L.

  Nicol, B.

  Dormand of Easington, L.

  ogmore, L.

  Dubs, L. [Teller]

  Rea, L.

  Falkland, V.

  Richard, L.

  Farrington of Ribbleton, B.

  Robertson of Oakridge, L.

  Geraint, L.

  Rochester, L.

  Gladwin of clee, L.

  Seear, B.

  Graham of Edmonton, L.

  Sefton of Garston, L.

  Grey, E.

  Slim, V.

  Harris of Greenwich, L.

  Stoddart of Swindon, L.

  Haskel, L.

  Strabolgi, L.

  1388

  Thomas of Walliswood, B.

  Wigoder, L.

  Thomson of Monifieth, L.

  Williams of Elvel, L.

  Tordoff, L.

  Winchilsea and Nottingham, E.

  White, B.

  Young of Dartington, L.

  NOT-CONTENTS

  Addison, V.

  Layton, L.

  Ailsa, M.

  Leigh, L.

  Alexander of Tunis, E.

  Liverpool, E.

  Ashbourne, L.

  Long, V.

  Astor of Hever, L.

  Lucas, L.

  Belhaven and Stenton, L.

  Lyell, L.

  Blake, L.

  McColl of Dulwich, L.

  Blatch, B.

  Mackay of Ardbrecknish, L.

  Boardman, L.

  Mackay of Clashfern, L.[Lord chancellor.]

  Boyd-Carpenter, L.

  Brabazon of Tara, L.

  Massereene and Ferrard, V.

  Brookeborough, V.

  Melville, V.

  Brougham and Vaux, L.

  Mersey, V.

  Burton, L.

  Miller of Hendon, B.

  Butterwoith, L.

  Monk Bretton, L.

  Cadman, L.

  Montgomery of Alamein, V.

  Campbell of Alloway, L.

  Mountevans, L.

  Chalker of Wallasey, B.

  Mowbray and Stourton, L.

  Chaiteris of Amisfield, L.

  Munster, E.

  Chesham, L.[Teller.]

  Newall, L.

  Clark of Kempstoan, L.

  Norrie, L.

  Clinton, L.

  Northesk, E.

  Courtown, E.

  O'Cathaian, B.

  Cranborne, V. [Lord Privy Seal.]

  Oxfuird, V.

  Crickhowell, L.

  Parkinson, L.

  Cross, V.

  Pearson of Rannoch, L.

  Cumberlege, B.

  Pender, L.

  Davidson, V.

  Plummer of St. Marylebone, L.

  Dean of Harptree, L.

  Prentice, L.

  Demon of Wakefield, B.

  Rankeillour, L.

  Dilhorne, V.

  Rawlings, B.

  Dixon-Smith, L.

  Rawlinson of Ewell, L.

  Downshire, M.

  Renfrew of Kaimsthorn, L.

  Eccles of Moulton, B.

  Renton, L.

  Eden of Winton, L.

  Renwick, L.

  Ellenborough, L.

  Rodger of Earlsferry, L.

  Elles, B.

  Romney, E.

  Elton, L.

  St. Davids, V.

  Fairhaven, L.

  Saint Oswald, L.

  Ferrers, E.

  Sanderson of Bowden, L.

  Finsberg, L.

  Seccombe, B.

  Fraser of Carmyllie, L.

  Sharples, B.

  Gardner of Parkes, B.

  Shaw of Northstead, L.

  Goold, L.

  Skelmersdale, L.

  Goschen, V.

  Soulsby of Swaffham Prior, L.

  Gray of Contin, L.

  Stanley of Alderley, L.

  Grimston of Westbury, L.

  Stevens of Ludgate, L.

  Harding of Petherton, L.

  Stodart of Leaston, L.

  Harmar-Nicholls, L.

  Stokes, L.

  Harmsworth, L.

  Strathcarron, L.

  Hayhoe, L.

  Strathclyde, L. [Teller.]

  Henley, L.

  Sudeley, L.

  Hertford, M.

  Tebbit, L.

  Hogg, B.

  Teynham, L.

  Holderness, L.

  Thomas of Gwydir, L.

  HolmPatrick, L.

  Torphichen, L.

  Hood, V.

  Tugendhat, L.

  Hooper, B.

  Ullswater, V.

  Hothfield, L.

  Vestey, L.

  Howe, E.

  Vivian, L.

  Huntly, M.

  Wade of Chorlton, L.

  Inglewood, L.

  Wakeham, L.

  Ironside, L.

  Westbury, L.

  Jenkin of Roding, L.

  Wise, L.

  Kimball, L.

  Wyatt of Weeford, L.

  Kingsland, L.

  Wynford, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  5.48 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 12:
  After Clause 3, 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 for at least the minimum award, the claims officer shall refer that application to the chairman of the body of adjudicators appointed under section 5(3) 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: My Lords, Amendment No. 12 returns in a different way to an issue which was debated at some length in Committee. I refer to the issue of injuries for which no provision was made in the tariff; that is, for gaps in the tariff.
  The scheme recognises that gaps will inevitably arise in the tariff. There is no shame in that or reason for disagreement about it. The number of injuries recognised by the tariff has increased, from 187 to 310, since the first tariff was drawn up in 1994. There is no doubt that that process will continue as we refine our understanding of the nature of injury to the human body. It will certainly continue if the Law Commission report on psychiatric injury results in a completely new range of mental injuries in addition to the physical injuries already recognised in the tariff.
  The scheme makes provision for those injuries. It makes provision for when a judgment is taken by those running the scheme that an interim payment should be made of 50 per cent. of what is considered to be the relevant amount under the tariff. There is then a procedure for consideration as to whether the new injury should be included in the tariff and, if so, at what band. There is a provision also—it is not entirely ungenerous—that if it is decided that such an injury should not be included and therefore there should not have been a payment, the 50 per cent. payment will not be taken away; but that if such an injury should be included and it is given a band higher than the amount already paid, the amount shall be paid at a higher rate.
  So far, so good. It is a reasonable first stab at an attempt to compensate for injuries which are not already included in the tariff. What we are suggested here is that it could be done better. Without in any way breaking the rules under which the tariff is set up and administered under the scheme, we are suggesting that the claims officer, the person at the first level responsible for identifying this new injury,
  "shall refer that application to the chairman of the body of adjudicators… for determination".
  In other words, the chairman of the body of adjudicators shall determine that particular application and make an appropriate payment. The second part of the amendment states:
  1390
  "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".
  In other words, the payment has been made; it has been made in good faith; it has been made at the highest possible level within the system; and the way is open for amendments to the tariff to be introduced with the leave of Parliament if the matter is considered sufficiently important.
  It is not a matter of enormous importance. I do not suppose that new injuries will appear on the tariff more than perhaps half a dozen times a year. The amounts of money concerned are not very great. But what we suggest enables a swift determination of a claim which is thought by the chairman of the body of adjudicators to be reasonable to be made; and it enables the full amount which is thought by the chairman of the body of adjudicators to be reasonable to be paid without delay to the person making the claim, without waiting, as the scheme presently provides, for parliamentary approval before the second 50 per cent. of the final amount is paid to the individual. In other words, parliamentary delays should not be the occasion for delays in payment to the applicant—to the victim of crime.
  I suggest to your Lordships that there is no significant effect on public expenditure but I suggest also that there is a worthwhile improvement to the practical way in which the scheme is administered and thought to be just. I beg to move.
  Lord Airedale: My Lords, the admitted gap in the tariff is liable to occur because of the sheer pace of medical research and the need to invent new medical terms to describe the new medical discoveries. We do not want a situation where the tariff is admittedly lagging behind but the application is refused because the language in which the applicant's doctor describes his injury is in terms which have not yet arrived on the tariff. We need an interim period to deal with this little problem. That is why we on this side of the House consider that an amendment of this kind is necessary.
  Lord Rodger of Earlsferry: My Lords, as the noble Lord, Lord McIntosh of Haringey, indicated, there was some debate on this matter at Committee stage. What I shall say will reflect much of what was said then. Everyone recognises that from time to time—presumably especially in the earlier years—some novelty will come to light which has not been provided for and where it will be necessary, therefore, to have some new entry in the tariff scheme. We all recognise that. It is also recognised that a means has to be devised for dealing with those matters.
  The approach taken in the amendment is to suggest that such a matter would be referred to the chairman of the body of adjudicators, who would determine it and who might at least subsequently make a recommendation to the Secretary of State as to the amount of the compensation. The scheme envisaged in the amendment would involve a decision being taken by the chairman of the body of adjudicators. As has been said on a number of occasions, we take the view that there should be a clear distinction and separation

  1391
  between the initial decision-making process and the appeals process. The authority alone must be responsible for the initial decision and any decision taken in review. The appeals panel is then fully at liberty to consider any subsequent appeal by the claimant without the impediment of any earlier involvement in the initial decision-making process. We consider that such a demarcation line is of importance.
  What is also involved in this line in the amendment is that someone who came forward would be given an award merely on the decision of the chairman of the body of adjudicators, who might not necessarily get it right. For example, the award might not eventually be incorporated in the scheme when the matter was put to the Secretary of State and then before Parliament. When we are dealing with the tariff scheme it does not seem right that any individual should get an award which is different from that which is subsequently approved by Parliament. The scheme envisages a way of dealing with this matter, which is that the person can be awarded half of what is thought to be the appropriate award and then, when the matter is subsequently dealt with by the Secretary of State and Parliament, if the award is confirmed the amount recommended will be paid. Even if it turns out to be less than what he has been awarded, he is entitled to keep it.
  As the noble Lord, Lord McIntosh, said, there is in the scheme some measure of generosity. I think that we are here trading off what might be a slightly swifter resolution of any particular case with the desirability that in all cases there should be awarded a sum which has been approved as the appropriate sum by the Secretary of State and by Parliament. We think that the scheme as envisaged is more satisfactory than that which is envisaged in the amendment.
  Lord McIntosh of Haringey: My Lords, the Lord Advocate says that the chairman of the body of adjudicators may not get it right. That is true. The Government have been insistent throughout that many of these awards may not be right. There is no absolute standard of rightness. What we are trying to do in all of these things is to make the best of a bad job.
  The tariff is being adopted, as opposed to the common law scheme, because it is thought to be quicker and easier to understand and because it is the basis on which there can be a better control of public expenditure. We have accepted all those arguments and we have accepted at the same time that there is no such thing as an absolute test of rightness for any particular award. What we are saying here is that it is possible to make improvements in the tariff scheme, even within the context of the tariff scheme. The improvement which we suggest, which enables a determination to be made at the highest administrative or quasi-judicial level possible without reference to Parliament, is fairer to the applicant than forcing the applicant to wait, in all probability for 50 per cent. of his award, until Parliament has given approval to an amendment of the scheme. That is the only point we are making. It is not an issue on which to divide the House although I still believe that it is right. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6 p.m.
  Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 13:
  After Clause 3, insert the following new clause—
  DOMESTIC VIOLENCE
  (".—(1) Where, at the time when the injuries which are the subject of the application were sustained, the applicant and any person responsible for those injuries (whether or not that person actually inflicted them) were living in the same household as members of the same family, an award will be withheld unless the person responsible has been prosecuted in connection with the offence, except where the person determining the claim considers that there are good reasons why a prosecution has not been brought.
  (2) For the purposes of this section, a man and a woman living together as husband and wife shall be treated as members of the same family.").
  The noble and learned Lord said: My Lords, this is another amendment, which in form is an amendment to the Bill, but its purpose is to seek to improve the scheme. I paraphrase paragraph 15 of the scheme which says that where the victim and the person responsible for the injuries were living in the same house as members of the same family, then an award will be withheld unless the person responsible has been prosecuted.
  The scheme states in paragraph 15(b) that,
  "in the case of violence between adults in the family, the claims officer is satisfied that the applicant and the person responsible stopped living in the same household before the application was made and are unlikely to share the same household again".
  Your Lordships will have observed by now that our amendment repeats what is in that paragraph, but omits paragraph 15(b). As I understand it, the reasoning behind paragraph 15(b) is that if the victim of domestic violence is compensated for an injury by someone with whom he or she is living as a spouse or a partner, then the perpetrator of the offence is likely to benefit from the compensation. We understand that and have no quarrel with any safeguard designed to ensure, as far as possible, that that does not happen.
  The provision as it is now formulated ignores the present situation relating to living accommodation. If someone who has been assaulted by a partner could simply leave the house and find accommodation elsewhere, there would be no real problem. However, finding other accommodation at an affordable rent is no simple matter. Unhappily, the days are past when the local council was possessed of a substantial housing stock and could make accommodation available. Not only are the regulations governing housing benefit designed not to provide a rent at a moment's notice, but the Government's proposal will bear hardest on those who have already been dealt a rough hand. For that reason we hope that the Government will think again about a provision which will have the effect not of encouraging the victim to leave the home, but of depriving the victim of compensation because she cannot leave the home. I beg to move.
  Lord Stewartby: My Lords, I hesitate to display my ignorance in such august legal company as Members of

  1393
  your Lordships' House who are considering the Bill. But as a layman in this subject, I was a little surprised to see the wording of the amendment. It states that,
  "For the purposes of this section, a man and a woman living together as husband and wife shall be treated as members of the same family".
  Is that something which has to be spelled out? Under what circumstances would they not be treated as members of the same family? The noble and learned Lord referred to paragraph 15(b). Does the position have to be explicitly stated in this legislation?
  Lord Rodger of Earlsferry: My Lords, the issue was debated on a previous occasion. The position which we have adopted in the draft scheme is that which was adopted in all versions of the scheme since 1979. It resulted from a report by an inter-departmental working party which reported on the scheme as it existed in 1978 and analysed the various problems. The recommendations were accepted by the then Labour Home Secretary and implemented by the Conservative Government of 1979. Those provisions have been in existence since then.
  I recognise that there can be occasions when it is difficult for, let us say, the woman to leave the home where she has been subjected to violence. I fully understand that. Nonetheless, if she is someone who is subjected to violence and a domineering husband, and she remains in the home, those are precisely the circumstances—and there is no getting away from it—where it is likely that any award which she obtained would not go to benefit her, but would be liable to be taken over and used by the man whose violence caused the award to be made in the first place. It is because of the grave risk that the perpetrator of the crime would benefit by it that the rule was introduced and maintained. I accept that there may be cases where the provision works somewhat harshly in the circumstances which have been mentioned. However, overall we believe that the rule is right for the reasons which we have given.
  As for the particular form of the amendment, it is partly because it is an Opposition amendment. It is often useful to have to say exactly in what circumstances people are regarded as living in the same family.
  Lord Archer of Sandwell: My Lords, I trust that the noble Lord, Lord Stewartby, was not asking the Opposition to translate the wording because it comes from the scheme, and those are the Government's words. The noble and learned Lord the Lord Advocate is right in that the words are hallowed by having been used over a long period. What has changed is not the meaning of the words, but the housing situation against which they have to be considered. The fact is that in the past it would not have been impossible for the victim to find other accommodation at a rent which was within the victim's means. Unhappily, that is no longer true.
  I agree that we have to set against that the argument very properly used by the noble and learned Lord, that an award may be taken away by the perpetrator of the offence. It may be that together we can find a formula which will enable the claims officer, or whoever was dealing with the claim, to take into account whether that
  1394
  was likely to happen. Because there is this difficulty—we have to steer a course between Scylla and Charybdis—I certainly would not wish to persevere with the amendment today. I hope that the noble and learned Lord will indicate that the Government have taken on board the difficulty to which we seek to draw attention. It may well be that together we can find a course which will meet those difficulties. For the moment I am content to ask leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 14:
  After Clause 3, insert the following new clause—
  SPECIAL EXPENSES
  (". Where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury or, if not normally employed, is incapacitated to a similar extent, additional compensation in respect of special expenses, payable from the date of the injury shall be awarded for—

  (a) loss or damage, as a direct consequence of the injury, to property or equipment belonging to the applicant on which the applicant relied as a physical aid;

  (b) the cost other than by way of loss of earnings or earning capacity of attending for medical or dental treatment;

  (c) the cost of private medical or dental treatment, hut only if the person determining the award considers that, in all the circumstances, both the private treatment and the cost of it are reasonable;

  (d) the reasonable cost of special equipment or adaptations to the applicant's accommodation or of care, whether in a residential establishment or at home, which are not provided or available from the National Health Service, local authorities or any other agency free of charge, provided that the person determining the award considers such measures to be necessary as a direct consequence of the criminal injury; and

  (e) where the care referred to in paragraph (d) above is or has been provided for no or nominal payment by a relative of the applicant which relative has suffered financial or other detriment as a consequence of the provision of such care, the award of special expenses shall be made in such sum as the person determining the award considers reasonably reflects that financial or other detriment.").

  The noble and learned Lord said: My Lords, again, this amendment raises a principle which was discussed in Committee, again in terms which are an amendment to the Bill, but intended to improve the scheme. We simply seek to repeat what is in paragraph 23 of the scheme about special expenses. We do so with the addition this time, and not the omission, of a further provision in our subsection (e). Our intention is to meet the situation where a victim requires care in consequence of the injury and that care is provided by a relative without charge. The victim has suffered no financial loss in respect of the care and cannot be compensated for that under the scheme, but the relative who has provided the care may have suffered loss. He or she may have lost remunerative employment. That is not a loss to the victim, but in compassion and common sense it seems something that should he compensated for under the scheme.
  If the relative had charged for providing care, that would presumably be recoverable under paragraph (d) as a reasonable cost of care. As drafted, the scheme will have one or other of two consequences, both of which

  1395
  one would have thought were to be avoided. It will encourage relatives to make a formal charge for providing care—that would be artificial and counter-productive to the Government's declared aim of encouraging stronger family bonds—or it will encourage relatives to refuse to provide care, leaving the victim to employ professional carers who may well charge more than the relative. The victim will then claim that as an expense under paragraph (d), so the expense of the scheme will be greater. In Committee the noble Baroness said that the scheme was not intended to include peripheral loss, but I think that it was agreed between us eventually that this is not a peripheral loss. However, in so far as it is a peripheral loss, that is precisely what paragraph 23 seeks to provide—and rightly. It would be monstrous if it failed to do so.
  We simply seek to eliminate an irrational distinction between the care provided by a neighbour or professional who makes a charge and the care provided by a relative who, because he or she is a relative, does not make a charge. That seems to be a distinction which is based on no rational principle. I beg to move.
  Lord Rodger of Earlsferry: My Lords, it is always a pleasure for me to be able to give something to the noble and learned Lord in reply to his eloquence and I am happy to be in that position on this occasion. We have received a number of comments on the provisions of the draft scheme particularly in relation to the care that is provided free or at nominal cost by a relative or friend. As was said in Committee, we had considered that that element was covered by the draft scheme. However, to put the matter beyond doubt, the relevant passage in the next draft will be amended to make it clear that unpaid care provided by a relative or friend of the victim—I am thus able to go a little further than the noble and learned Lord asks—can be compensated. I hope that in the light of that assurance the noble and learned Lord will withdraw his amendment.
  Lord Archer of Sandwell: My Lords, it is a pleasure doing business with the noble and learned Lord. I am happy to ask leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 5 [Appeals]:
  [Amendments Nos. 15 to 17 not moved.]
  6.15 p.m.
  Lord Ackner Lord Ackner moved Amendment No. 18:
  Page 3, line 43, 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: My Lords, this is an attempt to breathe a little compassion and humanity into this admittedly inflexible piece of legislation. It seeks to provide that, where an applicant desires oral representation, he shall be entitled to have it. I urged such a provision in Committee, but unsuccessfully. I said at the end of my observations then that I would withdraw the amendment with a view to reading the exact justification and that I might return to the charge.
  1396
  I have re-read the observations and I have taken considerable heart from what I have read because the usual resistance to this type of amendment giving an automatic right to an oral hearing is that it opens the floodgates and therefore makes the administrative position impossible. Fortunately, that is not the case here because the noble and learned Lord the Lord Advocate said:
  "Let me say straight away that we envisage that in the vast majority of cases an oral hearing would be heard by the panel".— [Official Report, 17/10/95; col. 716.]
  Therefore, we are not dealing with floodgates; we are dealing with the vast minority, which is the consequence of having been told that the vast majority will be covered by the oral hearing.
  Therefore, the only resistance which is put up is the simple resistance, which was again provided by the noble and learned Lord the Lord Advocate, who said that it was envisaged that there might be "unmeritorious" cases where there would he a requirement for such a hearing.
  The noble and learned Lord indicated that that would be the plain and clear case in which there was clearly no viable right of appeal.
  In the course of my submissions on the last occasion I sought to recall the wise words of Mr. Justice Megarry, who himself was dealing with that very contention in a case, the contention being that,
  "the result is obvious from the start".
  The case for which I was searching was that of John v. Rees in 1970 Chancery 345, at page 402, where the learned judge said:
  "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change".
  We are dealing with a body of would-be applicants, many of whom are not highly articulate and who will have difficulty in setting out in writing with any great clarity their grounds of appeal. Those who are dealing with such cases will no doubt become highly professional in their approach. The noble and learned Lord the Lord Advocate said (again at col. 716) that, if that automatic right was given, it would involve,
  "a great deal of time and energy on a matter which could not succeed".
  I have dealt with the proposition "which could not succeed", but surely,
  "a great deal of time and energy",
  is an extraordinary observation. The notice of appeal ex hypothesi reveals that there is no arguable case. That will appear in a minority of cases. You can group them together in a day or week and, if you have any tact or expertise, you can say to the applicant, "We should very much like to help you, but the tact of the matter is that we have no power to do so because …" and, if that is spelt out simply, that is the end of the matter. It might take a couple of minutes. You might be able to deal with 20 cases conveniently in an hour. That means that one

  1397
  can deal with 100 cases quite simply in a day. Where is the
  "great deal of time and energy"?
  In my respectful submission, once one accepts the wise words of the noble Baroness—that this legislation inevitably does rough justice—one tries one's best to make the roughness acceptable—and acceptable to an injured person. In those circumstances, it is not asking a very great deal to permit this automatic right.
  The Government have been at pains by reference to other countries—and with some justification—to pat themselves on the back for their generous approach to this area of compensation. For this amendment to be permitted, it is not asking for that generosity to be extended to any great degree. Stirred on by the helpful observation of the noble and learned Lord the Lord Advocate about the vast majority getting a right of appeal, I suggest that this amendment is not straining generosity. I beg to move.
  Lord Campbell of Alloway: My Lords, there has been discussion and correspondence between myself and my noble friend the Minister about my proposals at Committee stage to amend the draft scheme to reflect the spirit of this amendment. My noble friend has explained and amplified the objections of my noble and learned friend Lord Rodger of Earlsferry, with whom I took issue. There is no amendment on the Marshalled List to implement my proposals, which seem to me—and, informally, to some of your Lordships—not to be wholly unreasonable. But it is not possible to carry in such an amendment, as far as I am aware, to a draft scheme which is still in draft.
  The argument to be advanced by my noble friend the Minister is understood, albeit with reluctance. It is conceded that the spirit of the amendment of the noble and learned Lord is not without attraction. It is said, however, that the great majority of appeals will be about eligibility as distinct from quantum but that where eligibility is established and compensation is refused, to afford an oral hearing would be no more than a false gesture affording and generating a false expectation. I am not so sure, and I think Mr. Justice Megarry would share my doubts.
  There are also questions which will be put forward as to detriment to expedition and the question of resources relevant to an estimated 10,000 oral hearings a year, the cost of which includes the reimbursement of the appellant's travelling expenses. So, although this has an element—and a strong element—of administrative convenience in it, it cannot fairly be said to be exclusively related to administrative convenience.
  In any event, my proposals are not acceptable. They were advanced on the basis that I could not support the amendment of the noble and learned Lord which carried the right of this oral hearing onto the face of the Bill. I have already given the reasons, which were advanced in Committee (Hansard col. 715), and that remains my position today. I cannot pretend that the situation is entirely satisfactory.
  Lord Airedale: My Lords, in my limited experience a litigant is inclined to go home and say, "I lost my case
  1398
  but at least I had my say". That is a great consolation to him, and for that reason I suggest that the amendment of the noble and learned Lord is to be welcomed.
  Lord Archer of Sandwell: My Lords, I would like to add a word of support to the noble and learned Lord. Your Lordships may recollect that under the Asylum and Immigration Appeals Act 1993 an asylum seeker who is refused asylum may appeal to a special adjudicator. At the time of the Bill the Government sought to say that, if the Secretary of State certified that the appeal was without foundation, it should be dismissed without a hearing. In the face of widespread representations, the Government relented. Schedule 2, paragraph 5, of the Act now provides that, if the Secretary of State certifies that the appeal is without foundation, that issue is itself tried at an oral hearing before a special adjudicator.
  I have been privileged to attend some of those hearings. They work fairly and no one suggests that they occasion undue delay. I would like to know—and, as I have not given the noble and learned Lord notice of the question, I fully understand if he cannot answer today—what proportion of those appeals from a certificate that they are without foundation actually transpire to he without foundation. One thing of which I am pretty certain is that there are some. They are not all found to be without foundation. If the question arises at a later stage in our deliberations, perhaps those statistics may be available.
  I do not believe that without an oral hearing any appeal can be said to be without foundation. Certainly to say it to the proposed appellant will do exactly what the noble Lord said a few moments ago—it will send the appellant away convinced that he has not had a hearing.
  Lord Carlisle of Bucklow: My Lords, the proposal that appeals should be refused without a hearing is one that we have at the moment under the criminal injuries compensation scheme. We have had it for the past few years, and in relation to the whole of the criminal justice scheme it has been shown to have its advantages. I think I am right in saying that there were 644 cases last year where applications for a hearing were refused and no hearing took place. We get a great number of very frivolous and hopeless applications, partly because we have no sanctions against anyone who choses to make an application. I therefore accept that the power has to some extent been useful.
  I notice that for the first time in the new scheme there will be a power against frivolous applications. In future if in the opinion of the adjudicator an appeal is frivolous or vexatious, he can reduce the amount of compensation to be awarded by such amount as considered appropriate. In the long run that will prove a greater deterrent than the refusal of any hearing at all.
  Lord Rodger of Earlsferry: My Lords, we are considering this evening a matter which the noble and learned Lord, Lord Ackner, raised on a previous occasion. As I said on a previous occasion, I understand very well the thinking behind the noble and learned Lord's amendment. Nevertheless, having given the

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  matter due consideration between the Committee stage and now, the Government feel bound to maintain our position, that this amendment should not be accepted.
  We think that there should not be a universal right to an oral hearing for the reasons I explained on the previous occasion—and they are reflected in the remarks of my noble friend Lord Carlisle—that there are presented, and will be presented in the future, appeals which are simply without foundation. I fully accept that history shows—and the noble and learned Lord, Lord Ackner, quoted a passage which talks of this, and we all know of cases—that people have succeeded when initially it was thought that they could not succeed. But that having been said, there plainly are cases where the appeal is hopeless because the person does not meet the eligibility rules. A clear example might be where an injury occurred abroad. I take an extreme example. The question in such cases is whether an oral hearing is a proper way of dealing with the matter.
  The noble and learned Lord said that the hearing would not need to last long. On his analysis, we might get through 20 such hearings an hour, which looks as though they would take, on average, three minutes. To invite someone to attend, perhaps raising that person's expectations, and then to deliver the judgment and put him out within three minutes is unlikely to go far in assuaging his feeling that he has been hardly done by.
  It is open to question whether a system such as that envisaged by the noble and learned Lord would help in the way that he suggests. As he said, I do not put a great deal of stress on the number of such hearings because I believe that they would not be large. It is not a question of 10,000 hearings but 10,000 hearings altogether. The figure will be more like the one of which my noble friend spoke. We feel that it would not be likely to assist the feeling of disappointment which the noble and learned Lord is seeking to assuage.
  Against that, we have to set the fact that, although the number will not be large, such cases will, nonetheless, occupy part of the new body's time which could be used to deal with and dispose of more meritorious appeals. Taking an overall view, we believe that it is not right to have a universal right to make oral representations, but we anticipate—I repeat this—that in the vast majority of cases a hearing will be held. We believe in that situation the balance is right. I cannot reply to the question about figures asked by the noble and learned Lord, Lord Archer, but I dare say that I can find them and write to him.
  6.30 p.m.
  Lord Ackner: My Lords, I observe from the reply from the noble and learned Lord the Lord Advocate that he is no longer saying that to allow such an appeal would involve a great deal of time and energy. If that had been his continued case, the answer would be simple. If it turned out that a great deal of time and energy was being wasted on meritless appeals, the scheme could be altered. There could be a negative resolution explaining that that is why automatic appeal was going to be withdrawn.
  1400
  Secondly, the suggestion has been made that this would be no solace to the appellant who went away having failed in his appeal. I do not know how things are done in Scotland. My recollection and experience are down here. Having sat for three years in the court of the noble and learned Lord, Lord Denning, and having heard the way litigants in person were easily dealt with in three minutes by a simple, courteous explanation as to why the remedy being sought could not be given, and having observed that they queued up for the opportunity of appearing before him and having lost went away with a song in their heart, it seems to me that that type of situation can easily be dealt with here because we are dealing with a narrow subject in which the officials concerned should become expert very quickly.
  This is a most ungenerous reaction to a situation where the very decisions themselves, even though justified, will in many cases cause deep resentment, and to let that resentment fester will merely mean that, quite unfairly, the scheme will get a tarnished reputation which could so easily be avoided.
  I do not propose to divide the House. I am satisfied that I have won the debate in your Lordships' Chamber, and that if I put it to the test noble Lords would come in their scores, wondering what it was all about and asking which way they should go to vote—perhaps not the best form of democracy. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 19 to 22 not moved.]
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 23:
  After Clause 7, 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 the actuarial tables (together with explanatory notes) for use in personal injury and fatal accident cases issued from time to time by the Government Actuary's Department.").
  The noble Lord said: My Lords, we had a somewhat inconclusive debate on this issue in Committee. The amendment is concerned with the calculation of future financial loss. The basis upon which the scheme proposes that future financial loss shall be calculated is by means of a note to the scheme which sets out years in five-year bands and multipliers in a diminishing proportion.
  I am not enough of an algebraist to he able to turn that into a algebraic formula, although there must be such an algebraic formula. Fortunately, I do not need to because there are perfectly good actuarial tables which exist for that purpose (the Ogden tables). They could perfectly well have been used.
  In opposition to that alternative it was urged that that would be long and complicated, that the tables covered many pages and that they had not yet been used in legislation because the Civil Evidence Bill, of which they form part, had not at the time we discussed the matter been through Parliament. I answer that point in a number of ways. First, when the crude table in the note

  1401
  to the scheme was criticised we were told, "Oh, we did not really need it. It is only going to be used as a guideline. It is not actually going to be used for calculation. It will simply give the adjudicator an idea of what sort of amounts should finally be awarded". I thought that the whole purpose of the Bill was to avoid such discretion and to make the scheme as simple to administer as possible; so I was not impressed by that argument. You do not put down a table which is expressed in mathematical terms and then say, "We are not really going to use it".
  On the second point, I looked again at the Ogden tables. In their full form they contain a large number of tables and they could be complicated, although people use them successfully. However, we would not need to use all of them for this purpose because we would need to take only a particular example and incorporate it in the scheme, or in the note to the scheme, to use it for the purposes of the Bill.
  On the third point, I was told that, although the tables exist and it is proposed that they be included in legislation, the Civil Evidence Bill has not yet been passed. I looked up the Civil Evidence Bill, and here I am puzzled, because on examining the progress of government legislation I found the Civil Evidence Bill was supposed to have reached its final stage in the other place yesterday. It would have been legislation by now, although it would not have received Royal Assent until next week. When I looked in Hansard yesterday I could find no reference to the Civil Evidence Bill and I wondered whether it was lost. I wonder whether anyone knows what has happened to it because, according to the timetable of future business that I was given, it should have received its Report stage and closing stages on 30th October. I was told, "We would not like to lead in this matter. We would not like this to be the first Bill to put down tables of this kind in legislation". Does it matter?
  The point is that it has been accepted that these tables are going to be used in legislation. It is capable of being accepted that they can be used for this purpose in a simplified form. It is clear that even if the Civil Evidence Bill did not achieve its Report and Third Reading yesterday it will be enacted in that form. I should have thought that common sense would indicate that we should now enact in the scheme a formula which works and which can be adhered to rather than something that is so crude as to be only a guideline. I beg to move.
  Lord Rodger of Earlsferry: My Lords, we considered most carefully what was said by your Lordships in Committee and what was said in consultation on the new scheme. As a result, I am pleased to be able to tell the House that a number of changes will be made to the relevant parts of the draft scheme. The next draft will therefore illustrate not only the approach to the calculation of future loss with greater clarity—that is, the multiplier and multiplicand tables will be set out more fully, as we discussed—but also and perhaps most importantly it will stipulate that reference may be made to the actuarial tables as defined in this amendment. It will not state that they must be
  1402
  used but that reference may be made to them. When the missing Bill is found it will be seen that it does not prescribe that the Ogden tables have to be used but merely that reference may be made to them. I do not believe that on this issue it matters whether we shall be in the lead or behind but your Lordships have the reassurance that the actuarial tables will be available.
  Lord McIntosh of Haringey: My Lords, I believe that that is the best that I am going to get and it is certainly an advance on what we were told in Committee. I am grateful to the Minister and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.45 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 24:
  After Clause 8, insert the following new clause—
  PROTECTION OF ANNUITIES
  (".—(1) Where for the purposes of providing a qualifying award an annuity is purchased from an authorised insurance company within the meaning of the Policyholders Protection Act 1975, sections 10 and 11 of that Act (protection in the event of liquidation of insurer) shall have effect as if any reference to ninety per cent. of the amount of the liability, of any future benefit or of the value attributed to the policy were a reference to the full amount of the liability, benefit or value.
  (2) In this section "qualifying award" has the same meaning as that given in section 329C(1) of the Income and Corporation Taxes Act 1988.").
  The noble Lord said: My Lords, this issue was not raised in Committee because it had not then been drawn to my attention. Your Lordships will know, because you read of such things every day with your morning tea and toast, that the Law Commission in its report Structured Settlements and Interim and Provisional Damages
  (Command Paper 2646) made a number of recommendations about the treatment of structured settlements, in particular about the protection provided by the Policy Holders Protection Act 1975. That Act ensures that policy holders receive 90 per cent. of the sums due under an annuity in the event that the life assurance company goes into liquidation. The Law Commission recommended that the proportion protected should be extended to the full 100 per cent. in the case of annuities purchased for the purposes of providing a structured settlement.
  It will be argued that the matter should be dealt with as part of a comprehensive damages Bill, which incorporates all of the Law Commission's recommendations. However, we have a case in which injustice is occurring and which could be put right with relatively little difficulty in the context of this Bill. I shall refer to only one case; that of Philip Anthony Johns. In an accident in 1989 he received serious spinal injuries resulting in permanent paraplegia. In 1992 he received an award of £479,000, plus contributory negligence. Of that amount £202,000 was structured, producing an annuity of about £800 per month.
  The insurer, who insured the defendant, was Municipal General Insurance Company Limited. It went into voluntary liquidation in 1994 and declared a claims

  1403
  payment moratorium. At the point of settling the case it had purchased an annuity from Sun Life for the sum of £202,000, which was the structured part, and it continued to receive the monthly payments due under the annuity. Every attempt has been made to recover the money for Mr. Johns but every potentially legally responsible body refuses to accept any duty, whether legal or moral, to ensure that the insurance industry, which continues to receive the benefit of the annuity contract, pays out Mr. Johns. The liquidator is joined in that refusal. The matter will come before the court in the spring of next year. That is a particular case of an injustice which needs to be put right.
  In the course of the past week and since I tabled the amendment, we have received a press notice from the Department of Trade and Industry. The President of the Board of Trade has announced that he will make changes to the Policy Holders Protection Act 1975, including provision for 100 per cent. protection in the case of an annuity provider failing in the context of a structured settlement. He has said that the amendments will require primary legislation which he will bring forward when parliamentary time permits.
  It may be thought unsatisfactory for such matters to be dealt with piecemeal. However, when a particular source of injustice can be corrected now in line with a Law Commission report and the Government's response to it, I believe that we should seize the opportunity. The amendment will do no harm whatever to the structure and content of the Bill and will provide a real benefit for a small number of people. I beg to move.
  Lord Rodger of Earlsferry: My Lords, the Policy Holders Protection Act 1975 provides a system of compensation for certain policy holders of failed insurance companies. It is administered by the Policy Holders Protection Board. As the noble Lord indicated, if an insurance company goes into liquidation the board is required to arrange that insurance liabilities to policyholders are met in full where insurance is compulsory. For private non-compulsory general insurance and long-term life assurance policies the board is required to secure the payment of 90 per cent. of outstanding claims and to arrange continuity of life insurance with benefits at 90 per cent.
  On 23rd October my right honourable friend the President of the Board of Trade announced the Government's intention of extending the 1975 Act to provide structured settlement beneficiaries with 100 per cent. protection. I can say that the Government intend to seek an early opportunity to do that. Nonetheless, as the noble Lord rather anticipated, we take the view that this particular amendment would extend 100 per cent. protection to annuities purchased under this scheme and would amount to singling out awards under this particular scheme. We do not believe that that approach is right. It would give special treatment in the case of criminal injuries compensation awards by anticipating a legislative change which is to be made in respect of structured settlements as a whole.
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  On the basis that the Government intend to seek an early opportunity to bring in legislation to extend the protection in the way that I have indicated, I ask the noble Lord to withdraw the amendment.
  Lord Harris of Greenwich: My Lords, before the noble and learned Lord sits down, is he indicating that the Government intend to produce this legislation in the next parliamentary Session? If he is not giving that undertaking, he will realise that, if the amendment is not carried today, the interests of victims of crime could be jeopardised seriously for a significant period ahead?
  Lord Rodger of Earlsferry: My Lords, the noble Lord knows that I cannot anticipate the contents of the Queen's Speech or go further than that which I have stated. However, I reiterate that the Government intend to seek an early opportunity to introduce legislation.
  Lord McIntosh of Haringey: My Lords, I fail to see the logic of the Government's attitude. They have accepted that something is wrong and that the Royal Commission is right in its prescription of what is wrong. They have accepted that it must be put right. They are now saying that it can be put right only when it can be put right for everybody. This is a clear case which could be put right now for perhaps a limited number of people. It would not be at government expense because it would be a reform within the rules of the insurance industry. That could be done and nobody would suffer at all. I do not believe that anybody who has to wait for the rest of the legislation will object if victims of crime, who are supposed to be high on the Conservative Party's list of priorities, were given a little precedence and were allowed to have what is accepted to be right before the rest of those who have structured settlements.
  Lord Carlisle of Bucklow: My Lords, will the noble Lord accept that we do not even have power at present to make any structured settlements at all and that therefore there cannot be any victims under the criminal injuries compensation scheme who are in that situation?
  Lord McIntosh of Haringey: My Lords, that is a different point. Nobody denies that the scheme which is proposed with the inclusion of structured settlements is an improvement on the previous scheme. That has always been said and we have said so from these Benches in our response to the scheme as a whole. That is not the same point.
  The point is that, when there are structured settlements, they can be improved. The Government are missing an opportunity to do that. I do not say that the Government will fall on this issue but they are significantly failing victims of crime when they could help them. I very much regret the Government's response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 [Financial provisions]:
  [Amendment No. 25 not moved.]
  Clause 10 [Jurisdiction of Parliamentary Commissioner for Administration]:
  [Amendment No. 26 not moved.]
  Clause 11 [Parliamentary control]:
  [Amendment No. 27 not moved.]

Northern Ireland (Remission of Sentences) Bill
Brought from the Commons; read a first time, and to be printed.

Wild Mammals (Protection) Bill
6.54 p.m.
Baroness Nicol: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Nicol.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD LYELL in the Chair.)
Clause 1 [Kicking, beating, impaling, burning, crushing or drowning wild mammal]:
Lord Renton Lord Renton moved Amendment No. 1:
Page 1, line 5, after ("person") insert ("intentionally and").
The noble Lord said: This is a vital amendment. Unless it is made, it will mean that innocent people would really be at risk of unjustifiable prosecution because, as Clause 1 stands, it creates absolutely liability and makes no mention of the intention with which the act is done. The mere use of the word "cruelly" is objective to the result upon the animal. It is not subjective as to the person who does those things. But if we include the words "intentionally and", which have been used frequently in other statutes, the matter is made abundantly clear.
I repeat briefly that, if we do not do that, the Bill will have results which I do not believe its promoter ever expected. I gave a number of examples on Second Reading. The principal example that one should mention is that if a lorry driver or a driver of any vehicle in a stream of traffic happened to run over a hedgehog, for example, he would be guilty of an offence under the Bill whether or not he knew the hedgehog was there. That would be an absurd situation. If we put in the words Intentionally and", that clarifies the matter and leads to greater justice. I beg to move.
Lord Monson: I independently arrived at the same conclusion as the noble Lord, Lord Renton; namely, that the words "intentionally and" should be inserted into Clause 1. That is why I took the liberty of adding my name to the amendment. I hope that it will be accepted for the reasons so well explained by the noble Lord, Lord Renton.
Lord Mancroft: I too support the amendment. As my noble friend said on Second Reading, great concern was
1406
expressed on all sides that an offence of strict liability had been created. Under the amendment proposed by my noble friend, there will be a requirement to show that the act was deliberate. It is an important improvement to the Bill and I very much hope that the noble Baroness will accept the amendment.
Baroness Nicol: It may assist the Committee at this stage if I make it clear that we have had a number of discussions between the previous stage of the Bill and this evening. We have managed to reach agreement on all the amendments before the Committee with the exception of the last amendment because the wording of it was not available to us when we had our meetings. Therefore, we may need to discuss that amendment at greater length.
I am happy to accept the amendment before the Committee moved by the noble Lord, Lord Renton. In our earlier discussions, that was a major worry. I take the opportunity to repeat now, as I did then, that, as the promoter of the Bill in this Chamber, I can say that it is not the intention to make life difficult for farmers and landowners going about their lawful activities. I welcome the inclusion of the amendment and am happy to accept it.
Baroness Mallalieu: We are extremely grateful to the noble Baroness for accepting the amendment because it was the major worry in the Bill. This change is essential and I am delighted that she is able to accept the suggestion made.
On Question, amendment agreed to.
Lord Mancroft Lord Mancroft moved Amendment No. 2:
Page 1, line 6, at beginning insert ("nails or otherwise").
The noble Lord said: It may be of help to the Committee if I explain the purpose behind the amendment. I shall try to be as brief as possible. The Bill as currently drafted makes it an offence cruelly to impale a wild mammal. I believe we are all clear that this Bill is designed to prevent that kind of act of cruelty. We all remember the dreadful case that was presented to the Chamber of a live squirrel being nailed to a tree. However, the 1993 New Shorter English Dictionary defines "impales" not just as the transfixing of a body with a stake, etc: it also provides a rarer definition of enclosing with pales, stakes, etc. or surrounding as with a palisade. I do not think any of us intended that it should be an offence to surround or enclose a wild mammal. Therefore I believe that this amendment is necessary to make it clear that the archaic definition of impales is not intended to apply to this offence. I accept that this is only a modest improvement to the Bill but I am grateful that the noble Baroness felt it was useful and that it would make the Bill rather more acceptable to all. I beg to move.
7 p.m.
Lord Kilbracken: May I ask the noble Lord if he can explain what is meant by nailing a mammal? If that is a form of impalement, surely it is already covered by the existing wording. But I have never heard the verb "nail" used in that way. I, too, consulted the dictionary and find that it means to fix or fasten with nails; to

1407
pierce with nails‹—but that is obsolete—to fix something firmly to something with nails; or to fix or keep fixed in a certain place. I do not understand under what circumstances a wild mammal is likely to be nailed.
Lord Mancroft: The noble Lord asks an extremely reasonable question. It is for that very reason that we are all here and this Bill is before us. I am afraid that people commit the appalling act that the noble Lord has just described. They take nails and transfix small animals to trees. It is for that reason that we have tabled this amendment alongside the word "impaling" because impaling has another meaning—as I believe I described a moment ago—besides transfixing. It also means to surround with a palisade. For the sake of clarity and to help the courts, we needed to make it clear that in this case impaling meant transfixing. Regrettably one of the weapons that is used to transfix small animals is a nail; hence the use of the word "nail".
Baroness Nicol: I am happy to accept this amendment. It clarifies the Bill and removes any possible doubt about the use of the archaic word.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Exceptions from offence under the Act]:
Lord Monson Lord Monson moved Amendment No. 3:
Page 1, leave out lines 10 to 13.
The noble Lord said: Paragraph (a) of Clause 2 is totally redundant. One can only suppose it was lifted wholesale, along with other more relevant paragraphs, from some existing Act of Parliament and incorporated into this Bill by accident. Apart from anything else, taking as such is not an offence under Clause l of the Bill. If no other amendments had been tabled this evening, I suppose we could reluctantly have let it stand, but, as it has been agreed that certain improving amendments ought to be made—and indeed have already been accepted—it is only sensible to make this improvement too. I beg to move.
Baroness Nicol: At the risk of boring everyone, I am happy to accept this amendment too. As the noble Lord, Lord Monson, said, there was no offence of taking a wild mammal to begin with, so the paragraph was unnecessary. I am happy to accept the amendment.
On Question, amendment agreed to.
Lord Monson Lord Monson moved Amendment No. 4:
Page 1, line 16, at end insert—
("(bb) the killing, in a reasonably swift and humane manner, of any such wild mammal if he shows that the animal had been injured or trapped in the course of either lawful sporting activity or vermin extermination;").
The noble Lord said: Perhaps I should have made it clear earlier that, although I did not take part in the Second Reading of this Bill because of a long-standing prior commitment, I fully support the admirable aims of the noble Baroness, Lady Nicol, in trying to outlaw the sort of sadistic practices and sadistic behaviour involving hedgehogs and other animals which she
1408
described so well in her Second Reading speech. The purpose of this amendment is only to try to eliminate any accidental loopholes or ambiguities which extreme proponents of so-called animal rights might exploit to hinder or render impossible traditional farming and other rural activities.
If prosecutions for the offences created by this Bill could be initiated only by the Crown Prosecution Service, there probably would not be much of a problem. However, for better or for worse, private prosecutions can be brought. Even if over 95 per cent. of such prosecutions result in acquittal, we know that the acquitted person is then at risk of receiving obscene telephone calls and possibly letter bombs and threats to his or her children. Therefore the fewer loopholes or ambiguities that can be exploited by those with extreme views, the better.
The purpose, more precisely, of this amendment is, first, to protect those who shoot, either for sport or for the purposes of vermin extermination and who then dispatch a slightly wounded hare or rabbit. That set of circumstances would not be covered—as I interpret it—by Clause 2(b). Secondly, the amendment would protect ferreters whose dogs had caught an unwounded rabbit, and, thirdly, it would protect those whether in the town, the country or the suburbs who have caught mice or rats in a trap which they then wish to dispatch, most usually by drowning.
That might appear, at first sight, to be covered by Clause 2(e) but that paragraph is ambiguous and could be construed so as to protect the trapper—if I may so describe the owner or user of a trap—only so long as the rat or mouse is in the trap. I have followed the rest of the wording of Clause 2(b) as far as possible. The word "swift" is used both in the sense of quick and in the sense of prompt, or, as the Shorter Oxford Dictionary expresses it, "performed without delay". The words "reasonably" and "humane" are self-explanatory.
I had originally ended the amendment with the words, "or rodent extermination" but to confine it to rodents would exclude rabbits. I believe that would he undesirable and therefore I have substituted the word "vermin" which, contrary to my earlier assumption, I have been told is legally sound and unambiguous. If the noble Baroness, Lady Nicol, were minded to accept Amendment No. 8, that would achieve the same objective far more concisely. I await with interest her comments on that. I beg to move.
Baroness Mallalieu: I support this amendment. It is, as I understand it, clearly the intention of the promoters of the Bill to draw a distinction between people who beat animals gratuitously and those who are attempting to dispatch animals as humanely as possible, particularly those which have either been injured or been trapped. There is a danger to which the noble Lord, Lord Monson, has just referred, that a Bill of this nature may be employed to bring private prosecutions for purposes which were not intended by its promoters. It seems desirable that the purposes of the Bill should be absolutely clear on the face of the Bill. This amendment

1409
seems to me to serve an important and a useful purpose in making abundantly clear where the Bill is intended to apply, and for that reason I support it.
Lord Kilbracken: I do not see the need for this amendment, because it seems to me that, if a person acts in such a manner and kills any mammal in a swift and humane manner, he cannot possibly be said to have acted with cruelty, and he has to act cruelly in order to be guilty of an offence.
Lord Mancroft: While I support the intention of the amendment of the noble Lord, Lord Monson, I think that some of the other amendments which we may be able to secure to the Bill will deal with some or all of the points which he made. As regards trapping, there is already an exemption for the lawful use of a trap for the purpose of killing or taking a wild mammal under Clause 2(e). I hope that addresses the noble Lord's concern. More generally, however, I support the need for clarification but I believe that is only necessary in respect of the verb "beats" in an offence.
This is an issue to which we shall return with Amendment No. 8. However, I believe that specific clarification in respect of that verb would be more acceptable to the noble Baroness than a rather more general defence such as that set out in Amendment No. 4.
Baroness Nicol: I am remiss in not having had the two amendments grouped, because the debate is very much the same and there is a likelihood of conflict. I do riot know whether procedurally I can suggest that at this point we debate Amendment No. 8, but I believe that it would be wise because we can make a decision on the basis of having heard all the arguments. Perhaps the noble Lord, Lord Mancroft, would like to speak to his amendment, Amendment No. 8.
Lord Mancroft: I am grateful to the noble Baroness and the Committee for allowing me to do so. It may be for the clarification of the Committee if I do that. I hope that I shall not go over old ground.
The Bill makes it an offence to cruelly beat a wild mammal. At Second Reading the noble Baroness Lady Nicol gave examples against which that provision is aimed. She reported the case where six youths battered a wild rabbit to death by throwing a coat over the screaming animal and beating it with sticks. No one would dispute the need to prevent cruelty such as that. However, there may be times when it is necessary to kill a wild animal such as a rabbit or a hare by a blow to the back of the head. At present that is, quite rightly, lawful and humane. However, if more than one blow is inflicted does such an act of dispatch automatically become beating, and if so, would such beating be cruel? On recourse to dictionaries, I am advised that even a single blow may fall within the definition of "beats".
Our concern is to ensure that normal sporting and pest control activities are not caught by this provision. As I said at Second Reading, we are on difficult ground if we do not make clear which activities are prescribed. It may be argued that the courts would not find normal pest control activities to be cruel. But if an animal is dispatched by a blow to the head in the course of a sport which is opposed by animal rights groups, they would
1410
contend that the act of dispatch was unnecessary and therefore cruel. That would produce an argument in court. It may also be said that the Crown Prosecution Service would not entertain a prosecution in those circumstances. However, as I said at Second Reading and as the noble Lord, Lord Monson, said, in moving his amendment, our concern is the use to which this legislation might be put by animal rights groups in pursuing private prosecutions for their own political ends.
The ADAS and Local Government Reference Manual for Pest Control recommends that,
"trapped squirrels are run out into a sack held over the cage entrance. Once in the sack they are moved into a corner and dispatched by a sharp blow on the head with a short heavy stick".
That is the official guidance, but it may well be that animal rights groups object to the dispatch of squirrels by that method. As a matter of fact, there is very little difference between that official prescription for dealing with squirrels and the description that the noble Baroness gave of a blanket being thrown over a rabbit and it being beaten. The difference, of course, is that in one case pest control staff would attempt to dispatch the squirrel with one blow, but in the other case the youths may have intended to punish the rabbit by repeated blows. In terms of what actually happens, the gap between the two activities is very narrow indeed.
I am certain, and I am advised by my legal advisers, that a statutory clarification is necessary. That is the purpose of my amendment. I have no wish to prevent the prosecution of people who cause unnecessary suffering to animals. It may be argued that this clarification would impose an additional burden on the prosecution since defendants might claim that they were trying to dispatch the animal with reasonable expedition. I reject that. I do not think that a magistrates' court would have difficulty in distinguishing between a responsible sportsman or pest controller on the one hand acting with "reasonable expedition" and a group of youths acting gratuitously on the other. Frankly, if it is suggested that the magistrates would have such difficulty in distinguishing between the two, that would only add to my anxieties about the word "beats".
It has also been suggested that to define "beats" would be invidious because none of the other verbs is defined. In fact, the Committee has already accepted clarification of the word "impales". None of the other verbs gives rise to any doubt. We all know what "kicks", "burns", "crushes" or "drowns" mean, but it is not clear what "beats" means.
It has also been suggested that no definition of "beats" is provided in respect of the protection afforded to domestic animals under the Protection of Animals Act 1911, which already makes it an offence to cruelly beat an animal. That argument completely misses the point that domestic animals are not dispatched by blows to the head. It is precisely the failure to understand the difference between what is done to domestic and to wild animals that underlines the need for clarity in legislation of this kind.
As she told the Committee, the noble Baroness kindly chaired discussions with the RSPCA and the League Against Cruel Sports before the Committee stage and

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after Second Reading. We reached a consensus except, as the noble Baroness said, on this issue. However, the very presence of the League Against Cruel Sports at that meeting gives me great cause for concern. This Bill is no longer meant to be aimed at country sports which the league opposes. So why does it have an interest in its provisions? That makes me doubly determined to ensure that, without weakening in any way the main purpose of the Bill, none of its provisions can in any way be used against legitimate countryside activities.
The league suggested at the meeting that there might be circumstances in which it would wish the provisions to be used to stop an attempt to kill an animal with a blow to the head if the animal was of an inappropriate size or weight, or the instrument used was not sufficient. Where will the objections end? Since the league, which has taken out many private prosecutions in the past, objects to the coursing of hares, for example, what happens if a hare coursed legally is caught and needs to be dispatched by a blow to the head? What guarantee do we have that the league will not prosecute that activity? We must have clarity on the face of the Bill, and we must protect legitimate countryside activities.
The noble Baroness has shown tremendous flexibility and great courtesy in the way she has piloted this Bill, and the Committee will be grateful to her for that. I am grateful to her for taking on board what I hope she will agree have been legitimate concerns, expressed gently but firmly from many sides of the Chamber. I must emphasise again that I wish to see the Bill go forward to the statute book. I do not want to create obstacles. This clarification, which is merely, in the words of the amendment itself, "for the avoidance of doubt", in my view and that of all my legal advisers, is absolutely essential.
7.15 p.m.
Baroness Mallalieu: Having spoken in relation to Amendment No. 4 perhaps I may now speak in relation to Amendment No. 8. Looking at the amendment, it seemed to me necessary to consider it very closely to see whether, first, it proposed changes which were necessary and, secondly, whether they were desirable. So far as concerns necessity, it seems to me on reflection that the amendment covers a situation which is omitted from Amendment No. 4 in the name of the noble Lord, Lord Monson, where, for example, an attempt is made to kill a wild mammal by beating it with a stick or club when it is neither already injured nor trapped. Obvious examples would be a mole emerging on to a lawn or a rat running out of a pipe. Amendment No. 8 seems to cover all the situations which the earlier amendment of the noble Lord, Lord Monson, was intending to deal with, and also that additional situation.
The question which then falls to be considered is whether it is necessary to interpret further the word "beats", given that no such attempt is made in relation to any of the other words in Clause 1. On reflection, the amendment does not seek to define the word "beats" but
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simply indicates an activity which will not constitute cruel beating under the Bill. That seems to me a desirable step.
The last question which troubled me in relation to the amendment was whether it would produce an unreasonable obstacle to prosecution in proving an accused person to be guilty of cruelly heating. Repeated blows which fail to kill an animal with reasonable expedition will not provide a defence in a case where the court takes the view that the accused person was not in fact trying to kill the animal swiftly. That would be a matter of fact for the court to determine on the evidence, no doubt depending in part on the number and nature of the blows and the surrounding circumstances. In any event, following the amendment which the Committee has just made to Clause 1 of the Bill, the court will have to determine the intention of the accused before there can be a conviction. It seems to me that the amendment would impose no additional burden on a prosecuting authority in that respect. For those reasons, having already spoken in favour of the amendment by the noble Lord, Lord Monson, I believe that Amendment No. 8 both encompasses that amendment and deals with matters which would otherwise have been excluded. It is therefore the more desirable of the two.
Lord Boardman: We are debating Amendments Nos. 4 and 8 but I wonder whether it is necessary to separate them. Are they not both aimed at the same purpose? Could they not both live comfortably in the Bill in order to achieve the objectives which all Members of the Committee seek?
Baroness Nicol: Did the noble Lord, Lord Monson, wish to comment on Amendment No. 8 before we reach a decision?
Lord Monson: I have no objection to Amendment No. 8. My only worry is whether it covers the drowning of mice and rats. If the noble Baroness, Lady Blatch, speaking on behalf of the Home Office, could assure me that Clause 2(e) is not ambiguous—and I suggested that it was—hut protects householders, whether rural or urban, in such circumstances, I should be delighted to withdraw my amendment and support Amendment No. 8. Perhaps the Minister would like to comment.
Lord Renton: I speak for myself and do not expect everyone to agree with me. I believe that Amendment No. 4 by the noble Lord, Lord Monson, is the preferable of the two amendments.
Baroness Blatch: I am not sure that I can throw any more light on the subject. My own view is that there is no cause for worry; and the Government were satisfied that nothing in the Bill would prevent the continuation of normal humane methods of killing such creatures. However, I have to say that a sufficient element of doubt has been introduced into the debate as the discussion has progressed. My noble friend quite rightly pointed out that a definitive interpretation of what the clauses mean will be a matter for the courts. No one here can properly pre-empt how the provision would work in practice. For those reasons, I believe that the more

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clarification, the better. We remain neutral over the Bill. It is for the promoter to decide whether the amendments are acceptable.
Lord Skelmersdale: Before my noble friend sits down, I realise that this is the Committee stage and I have not taken part in the Bill so far. However, both amendments incorporate the concept of "reasonable". Amendment No. 4 says "reasonably swift" and Amendment No. 8 states "with reasonable expedition". Surely that is a subjective concept. Is it not possible that one magistrates' court would interpret "reasonably" rather differently from another? Would it not, therefore, be better to omit the words "reasonable" and "reasonably" altogether?
Lord Monson: Perhaps I may intervene again. I am grateful to the noble Lord, Lord Renton, for his support and also to the noble Lord, Lord Boardman, who seems to have suggested an excellent compromise. It was to have both belt and braces. The noble Baroness, Lady Blatch, also hinted that that might be a better way of going about matters.
My only worry is whether it would impede the swift passage of the Bill. If another place found that one or other amendment was not to its liking, of course, we would not dream of insisting upon it. I await the comment of the noble Baroness, Lady Nicol, on that point, because we do not wish to impede the passage of the Bill during this Session. If asking for acceptance of my amendment were to do so, I should happily withdraw it. Perhaps she would like to give her opinion on it.
Baroness Nicol: I find it difficult to do so. After hearing the debate, my first reaction is that there is a certain amount of overlap in the two amendments. I do not see why we need both and if I have to choose between them it seems to me that Amendment No. 4 by the noble Lord, Lord Monson, is more likely to succeed in another place than Amendment No. 8.
At this stage I am prepared to accept Amendment No. 4 and perhaps when we come to the final debate on Amendment No. 8 we will see how the Committee feels about accepting it also. If I have to choose between the two, I feel that I must choose the first and I am happy to accept it.
On Question, amendment agreed to.
Lord Mancroft Lord Mancroft moved Amendment No. 5:
Page 1, line 17, leave out ("unavoidable").
The noble Lord said: I beg to move Amendment No. 5. Concern has been expressed by the National Farmers Union, the Country Landowners' Association and many noble Lords at Second Reading that the defence provided in Clause 2(c) may be too narrow as it stands. As drafted, it states that:
"A person shall not be guilty of an offence … by reason of … the unavoidable killing or injuring of any wild mammal as an incidental result of any lawful action".
The problem is the concept of avoidability. As the noble Baroness conceded in her Second Reading speech, there may be many situations where farming activities, while
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being lawful, are avoidable. An example would be if a landowner were asked not to burn heather on the grounds that it might cruelly burn wild mammals in it. If the landowner, rightly appreciating that heather burning is an essential part of the process of regenerating moorland and conserving wildlife, nevertheless proceeds with his burning, his action is not unavoidable. It is possible to conceive of a prosecution in those circumstances. Plainly that would not be acceptable. By removing the too harsh test of avoidability, the defence would be of more use in normal farming situations. I believe that the amendment substantially improves the Bill and I very much hope that the noble Baroness will once again be able to accept it.
Baroness Nicol: Yes, it is a sensible amendment and I am happy to accept it.
On Question, amendment agreed to.
Lord Mancroft Lord Mancroft moved Amendment No. 6:
Page 1, line 21, leave out ("or trap") and insert ("trap or dog").
The noble Lord said: By now Members of the Committee will be aware of my concern that it should be made clear that the Bill is no longer designed to attack legitimate country sports. I know that that is the noble Baroness's intention, but I was concerned on Second Reading that, in the examples she gave as to why the Bill was needed, she mentioned that the RSPCA had found mutilated foxes that,
"had been set upon by dogs".—[Official Report, 19/10/95; col. 863.]
That suggested that there was something in the Bill which would prohibit such activities. Lawyers have said that it was possible that any use of a dog or hound to control wild mammals could be prosecuted if it was held that the animal was crushed in a dog's jaws. To make it clear beyond doubt that the Bill is not to be used in that way, the amendment specifically exempts the lawful use of a dog for the purpose of killing or taking any wild mammal. The lawful use of snares or traps is already exempt for the same reasons.
I believe that the noble Baroness might welcome the opportunity to clarify her position as the promoter of the Bill in this House by saying that it is neither her intention nor the purpose of the Bill to make any part of the legitimate practice of country sports unlawful. I hope that the noble Baroness will accept that it is a sensible amendment. I beg to move.
Baroness Nicol: There was considerable discussion on the point. Although I found it difficult to believe that anyone could suggest that inviting your dog to crush an animal meant that you had crushed it, nevertheless, it seemed to me that people were worried about the matter. I understand that none of the organisations concerned is opposed to the amendment, and I am happy to accept it.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Interpretation]:
Lord Renton Lord Renton moved Amendment No. 7:
Page 1, line 25, after ("any") insert ("wild").
The noble Lord said: This amendment is necessary in order to bring Clause 3 within the terms of the Long Title. The Long Title refers to "wild mammals", not merely to "mammals". Also the amendment would remove a doubt as to whether the Bill applied to a domestic animal which had either gone wild or was born in the wild. Such animals could then become "wild mammals" and be protected by the Bill. Therefore I believe that the amendment should be made. I beg to move.
7.30 p.m.
Baroness Nicol: Again we had considerable discussion on this addition to the Bill. The noble Lord, Lord Renton, succeeded in convincing us all that it was necessary. I therefore accept the amendment.
On Question, amendment agreed to.
Lord Mancroft Lord Mancroft moved Amendment No. 8:
Page 1, line 26, at end insert—
("( ) For the avoidance of doubt, "beats" does not include an attempt to kill a wild mammal with reasonable expedition.").
The noble Lord said: So as not to risk testing the patience of the Committee and the noble Baroness, I shall not go over the ground again. But I feel it is important to make one or two points. The purpose of this amendment is very simple. It seeks to make this area of the Bill as clear as possible. We were originally concerned about it when the Bill came to this Chamber from the other place. Two different sets (if that is the word; no doubt I shall be corrected) of leading counsel gave the opinion that the specific word "beats" was a dangerous area and needed clarification.
The reason that we could not reach a conclusion at the meetings held before Committee stage was that, after we discussed the amendments to come before us, we returned to counsel to ask their opinion. Even taking into account those amendments, they flagged up for us as firmly as they could that this is the great area of contention. That is why I press this point.
Noble Lords will understand—as we have all in our time paid the odd lawyer's bill—that there is very little point in taking very expensive and detailed legal advice, not once but on two or three different occasions, and then ignoring that advice. This is the strongest piece of advice that we received in relation to this Bill.
I shall not ask the Committee's pardon for making again another point that I made previously. It is that this is the area in which our enemies (I do not say "opponents" in this case), the enemies of country sports, are keenest to preserve intact. That raises even greater concerns.
The year before last, for nine months I watched a very close friend of mine dragged through the courts by animal rights people on an entirely spurious private prosecution under a former piece of legislation that came before this Chamber and in which I was involved; namely, animal welfare legislation. We had been given assurances by the promoters in this Chamber and in another place that this would never happen and that the Bill would not be used against legitimate country sports. That very close friend, a Master of Hounds, spent 18 months waiting to see whether he would go to prison. When the case came to the Crown Court he was told that the prosecution should never have been brought. That was the fifth, or possibly the sixth, case to be brought under that legislation. Therefore this is the area about which we are most concerned.
I consulted widely with my noble friends and with other friends outside this place who are concerned about this matter. It is in this area that we need to be most resolute. Therefore, without going over the arguments, I ask the noble Baroness to look favourably upon this amendment. It may be one dot too many to the "i" on that side of the fence; but from this side of the fence it is the dot to the final "i" that we would like in order to ensure that we are 100 per cent. comfortable with this Bill. I beg to move.
Lord Renton: I greatly appreciate all that my noble friend Lord Mancroft has already done to try to improve this Bill. Up to now I have agreed with him. However, it seems to me that the word "beats" is perfectly plain. "Beats" could mean either with one stroke or with several strokes.
The amendment moved by the noble Lord, Lord Monson, and accepted, seems to me to deal with the situation that my noble friend Lord Mancroft has in mind; namely, an attempt to kill a wild mammal with reasonable expedition. Amendment No. 4 refers to,
"the killing, in a reasonably swift and humane manner".
The other parts of Clause 2 also help. Therefore, although I do not disagree with the intention and spirit of what my noble friend proposes, we have to be careful not to clutter the Bill with words that are repetitive or unnecessary.
Baroness Nicol: I find myself in some difficulty over this point. Although I appreciate the worries of the noble Lord about frivolous or vindictive prosecutions, there is, as the noble Lord, Lord Renton, said, a degree of repetition which is probably not very sensible and which may cause problems when the Bill returns to another place. Nevertheless, it seems to me that there is still an area that is not quite covered by the amendment of the noble Lord, Lord Monson. Therefore, I am willing to accept the amendment.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.

London Local Authorities (No. 2) Bill [H.L.]
Returned from the Commons agreed to with amendments; the Commons amendments considered and agreed to.

London Local Authorities Bill [H.L.]
A message was brought from the Commons that they concur with the Resolution of this House on 26th October.
House adjourned at twenty-three minutes before eight o'clock.