Criminal Injuries Compensation Bill

HL Deb 31 October 1995 vol 566 cc1350-405

3.8 p.m.

Report received.

Clause 1 [The Criminal Injuries Compensation Scheme]:

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 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 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.

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.

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.

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 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 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.

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 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 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 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.

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.

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 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 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 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 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, 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 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 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—

1. (i) a child born alive which she intends to keep;
2. (ii) a child born alive which she has given up or intends to give up for adoption;
3. (iii) the pregnancy has ended in miscarriage;
4. (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 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 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 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 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 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 Haringeymoved 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". 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 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 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 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 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.

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 moved Amendment No. 11:

After Clause 3, insert the following new clause—

cc1383-405
1. MULTIPLE INJURIES 11,795 words, 1 division