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The Earl of Longford: My Lords, when the noble Lord talks about the principle of the Bill, is not its essence that it will cut the amount going to victims by almost one half?

Lord Campbell of Alloway: My Lords, no, that is not the essence of the Bill. With respect to the noble Earl, as I see it, the essence of the Bill—and I can only speak for myself—is the principle: do we carry on with the common law principle of the assessment of compensation, or do we change to a tariff or hybrid system? That is the principle. The noble Earl is referring to the consequences of the change. At this stage I am not dealing with those. This is Second Reading and at this stage I am dealing with the principle of the Bill, which is that we move from one system to another. That is acceptable to all noble Lords. I shall come in a moment to what the noble Lord, Lord McIntosh of Haringey, said—with much of which I agree—that

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really we simply have to move, as a matter of principle, towards what the noble Lord called a "hybrid" or an enhanced "tariff-plus" system.

Why? Because as a matter of principle that affords the reasonable resolution of a fair compromise between the interests of the victim, the obligations of the state and the burden on the taxpayer, under any government. For that reason the Bill has my full support. It also has the support of my noble friends Lord Carlisle of Bucklow, Lord Colnbrook and Lord Windlesham. We all opposed the previous Bill for reasons which are known and on record.

I wholly agree with the noble Lord, Lord McIntosh of Haringey, that it is not an easy solution but, as he said, we cannot go back to the old common law regime. He asked a number of cogent questions which assuredly warrant serious consideration, no doubt at Committee stage. I shall not seek to enter further into them because of time.

As my noble friend the Minister has said, this Bill will continue to afford the most generous compensation scheme in the world, and will dispense more compensation than all other European countries put together. It would surely be unrealistic and idle to suppose that the existing non-statutory scheme, under which compensation is awarded in line with common law damages, can continue.

There is no Bill which is incapable of improvement. Speaking only for myself, I hope that by some supplementary provision within the tariff scheme, some flexibility can be introduced to meet the individual needs of the victim in certain types of cases. If that were to be done in all cases, it would break the whole tariff concept wide open. Nonetheless, I hope that that may be possible. I have in mind some machinery to enable discretion to be exercised within financial constraints, such as might be acceptable to government. I do not have the skill to formulate that—or do not have it yet—in the form of an amendment.

One has to strike a fair balance. I agree that the figures given by my noble friend the Minister about what happens in the year 2001 inevitably have to be taken with a pinch of salt. Who on earth knows what will happen then? But the Government have to work on predictions and assumptions. There is no doubt that these are respectable predictions and reasonable assumptions, on which the Government are entitled to work. There is a very high degree of saving between £1.8 billion and £1.1 billion. That saving seems to be considered by the noble Earl, Lord Longford, as a shameful attack on the social services, and by the noble Lord, Lord Broadbridge, in stigmatising the Bill as a pernicious little Bill. Every noble Lord is entitled to his opinion, but when considering the realities of the situation, the burden on the taxpayer and the fair resolution of compensation, as compared with other countries, some of which are far better off than ourselves, I believe that this is a reasonable response.

However, expenditure is not the only problem. There is the backlog, which was referred to by my noble friend Lord Colnbrook and is a very serious problem. As yet 110,000 cases are unresolved. That is not a government prediction; it is, I am told, a clear statistic. The

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importance of immediate payment has been stressed and is of great importance, but how one gets immediate payments with that order of backlog, I am uncertain.

My noble friend Lord Windlesham said that the scheme was too cumbersome and too slow. I am not here to criticise the administration of the scheme; only to point to the fact that the number of applications has risen from 554 in 1964, when the scheme was set up, to 73,000 in 1993-94. I am informed that under the tariff scheme, it is expected that the backlog will be reduced substantially and that that reduction will continue. I suggest that that is yet another reason why, if the tariff scheme will reduce the backlog, as I understand that it will, one should support that tariff scheme.

The Bill has many attractions which have been explained in full by my noble friend the Minister and by my noble friend Lord Windlesham in particular. The structured settlements with the annuity payments which are not taxable are, among other aspects, very important attractions. At all events, it is a regime which is very different from that proposed in the previous Bill, and which is broadly acceptable to my noble friends Lord Carlisle of Bucklow and Lord Colnbrook with whom consultation on the Bill has, I understand, ensued.

The Bill is not open to objection as a skeletal Bill. I am coming now to the point raised by the noble and learned Lord, Lord Ackner. The degree of the proposed implementing machinery is wholly appropriate. The affirmative resolution procedure affords a satisfactory measure of safeguard. I entirely agree with my noble friend Lord Colnbrook that it would be wholly impracticable to have that complex implementing machinery, which may and, indeed, should require amendment from time to time, cluttering up the face of primary legislation. I wholly reject the criticisms of the noble and learned Lord, Lord Ackner, in that regard.

With reference to Clause 11, I can see no reason to suppose why on earth the Home Secretary would seek to ignore, avoid or evade the decisions and rulings of your Lordships' Appellate Committee. Some suggestion was made to that effect, but I find it unacceptable and clandestine. There are no serious criticisms of the Bill on that score.

In conclusion, I should like to make just one point. The common law system is a tariff system. Between brackets, we advise, in the light of decided cases, as to how much on the basis of full compensation, on full liability, and how much on the basis of contributory negligence and so on and so forth. There is a bracket and there is a tariff, but under the common law system you take the risk of litigation. You have to prove liability. You have all the costs of substantive trial, and in all litigation you have the inevitable risk of failure and of vast expense. You are on risk. How you compare the common law system in that set-up with a system in which all that you have to do is to prove causation and get your money without substantial risk, I do not understand. To my mind—I am an ordinary lawyer—it is not a comparison as between like and like. Under the tariff system, you are getting something without risk and without expense.

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Therefore, on that ground alone, quite apart from the issue of expense and quite apart from the point about the reduction in what people get, which was made by the noble Earl, Lord Longford, and other noble Lords, we should support the principle of the tariff. There should be a reduction in any event because the scheme should never have started off on the basis of common law compensation, but no yardstick other than that was thought of. On that ground also, it seems wholly right that, leaving aside the burden of expense, the principle of introducing the tariff as proposed by this Bill, albeit enhanced, is wholly justified.

6.6 p.m.

Lord Archer of Sandwell: My Lords, the debate has provided the Government with much well-informed criticism of the proposals and some responsible suggestions for further improvement. There may be a distinction between a speech and some observations, but I hope that the noble Baroness will avail herself of all that wisdom.

The noble Lord, Lord Colnbrook, and the noble Baroness, Lady Elles, said that the Government have responded to all of the criticisms made in the past—

Lord Colnbrook: My Lords, not to all of them.

Lord Archer of Sandwell: My Lords, I thought that the noble Lord actually used the word "all", but if he says that he did not, I accept it. Then, even the noble Lord is not claiming too great an open-mindedness on the part of the Government. As the noble Lord, Lord Campbell, has just emphasised, there is still the question of the change which occasioned all the problems—the change from the common law basis of assessing compensation to a tariff system. I make no secret of this: I agree with the strictures of my noble friends Lord Ewing and Lord Longford on that change. However, I suspect that my noble friend Lord McIntosh is right and that our horse has long escaped.

There are some criticisms to be made of the common law system. I am not referring to what I think the noble Lord, Lord Campbell, was adverting to, which was the method of deciding liability. Nevertheless, there are criticisms to be made of the common law system of assessing damages. Of course, not all of them are addressed in the new proposals. However, the common law at least attempts to address the principle of fairness—and fairness entails two factors. The first is that similar situations should be treated alike and the second is that relevant differences should be reflected in different treatment. That requires room for flexibility. The Government's initial proposals clearly failed to give effect to that second element. Victim Support, which has the advantage of having as its president the noble Lord, Lord Windlesham, together with the Bar Council and other organisations demonstrated some of the more absurd consequences of what the Government were then proposing, as did a number of your Lordships during the subsequent debates in this House. I should like to add my tribute to those paid about the initiatives of the noble and learned Lord, Lord Ackner.

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So, belatedly, the Government looked at it again and emerged with a tariff-scheme-with-some-flexible-elements—I hope that that phrase will appear in Hansard with hyphens between the words—still operated not by lawyers who are accustomed to assessing damages but by the same officials who were to operate the original tariff scheme. I accept, as did the noble Lord, Lord Carlisle, that the result is a substantial improvement. However, I suspect that the result will be what it usually is when one sets out unreflectingly to create one thing and then halfway through changes one's mind and decides to create something else.

The Devil begins with a tail and hoofs and halfway through it is decided to give him a human face. The parts do not fit together and it is not a pretty sight. Certainly, the new scheme still admits of the anomalies referred to by my noble friend Lord McIntosh and the noble Lords, Lord Rodgers and Lord Broadbridge. As the noble Lord, Lord Carlisle, pointed out, the number of identifiable injuries has doubled but, as the noble and learned Lord, Lord Ackner, commented, there is no suggestion that the single rigid figure against each may be replaced by a band or a bracket.

As my noble friend Lord McIntosh reminded us, there remains a distinction between the method of assessing compensation for a tort and compensation for a crime, corresponding to no distinction in either the loss or the need. At the end of it all, I share the doubt of the noble Lord, Lord Carlisle, about whether the new scheme is likely to be more expeditious.

That case has been made out in this debate and it will not profit from further comments from me. Nor do I believe that your Lordships would be assisted if I were to repeat what has been said about some of the questions which your Lordships may wish to address in Committee. I hope that I may be forgiven if I spend what time falls to me not on the content of the Bill but on its form. Perhaps I may express agreement with the noble and learned Lord, Lord Ackner, my noble friend Lord Ewing, and the noble Lord, Lord Broadbridge, because I believe that it is one example—probably the most blatant but, unhappily, certainly not unique—of a tendency by the present Government to lose sight of a fundamental constitutional principle. It is the difference between the functions of the Executive and the legislature.

If the Executive has proposals for changing the law, it submits those proposals to Parliament. Parliament may agree or disagree, or it may agree subject to some amendments. Of course, Parliament may initiate legislation without waiting for a proposal from the Executive. But normally the division of function is that the Executive is responsible for policies, for which it is accountable to Parliament. Where those policies entail changes in the law, including changes in Ministers' powers, it submits a proposal to Parliament.

The question which sometimes arises is: what is a proposal? There was once a body of opinion, chiefly among traditional Conservatives, that a proposal meant all the details of the changes which it was intended to make. Lord Hewart, a former Conservative law officer, argued in the book on which many of us were reared, The New Despotism which was published in 1929, that

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all the details should be embodied in the primary legislation and that leaving details to delegated legislation was a dangerous transfer of power from Parliament to the Executive.

That was an extreme version of the doctrine. Since the Donoughmore Report in 1932, it has been generally agreed to be acceptable if the primary legislation sets out clearly what is to happen and Parliament entrusts to the Executive the filling in of the details, subject of course to some of the proper safeguards referred to in the debate. That is for the reasons given by the noble Lord, Lord Colnbrook; there needs to be a degree of flexibility.

We are familiar with provisions such as those in Clause 10, inviting the Secretary of State to decide on the details after Parliament has legislated and then to lay those details before Parliament. Your Lordships will notice that in this case it is not all his proposals, even as regards the details, but only some of them. In Committee, your Lordships may wish to discuss some of the proposals which the Secretary of State is empowered to make which are not brought within Clause 10 and which he will not have to lay before Parliament.

However, the point that we are considering here is more fundamental. When Parliament is invited to approve subordinate legislation it is on a take-it-or-leave-it basis. As my noble friend said, there is no provision for amending it. The time when the debate takes place is at the mercy of the Government's business managers. It is likely, if I may say so from experience, to be at a very inconvenient hour and conducted to a background of yawns from the Government Whips. No one would consider those procedures satisfactory if they were applied to primary legislation. They are acceptable for matters of detail.

Yes, we have moved from the position of Conservatives such as Lord Hewart. There is a place for subordinate legislation. However, the present Conservative Government have moved not only away from their Lord Hewarts but they have swung out of sight, in the opposite direction. The Executive comes to Parliament not with a proposal at all but with a request for a blank cheque. Of course, a blank cheque is more flexible but most of us prefer to fill in the amount on our cheques because it makes it clear to what we are agreeing.

What we are requested to say in this Bill is, "There shall be a scheme of some kind and the Secretary of State is hereby empowered to decide what it shall be". That is not a proposal; it is inviting Parliament to abdicate its legislative function. We have been told most helpfully by the noble Baroness today—indeed, we have been told on other occasions—what is to be in the scheme, but it is not in the Bill. It is at the discretion of the Secretary of State and it may be changed when he chooses and without any prescribed procedures. That is precisely a Henry VIII provision.

Constitutionally, of course, it is all a very dismal episode and the more alarming because it comes from the Home Office. That is the department which, above all others, is expected to understand and accept responsibility for constitutional theory and practice. The

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past history is well known to your Lordships and it has been recounted in this debate by the noble and learned Lord, Lord Simon, my noble friend Lord McIntosh and other noble Lords.

In the Criminal Justice Act 1988, Parliament was invited by the Government to approve the structure of a statutory scheme. However, it delegated to the Home Secretary the discretion to decide when it should come into force. It used to be thought that a provision of that kind was inserted in order to give time to the Secretary of State to make the necessary preparations before the statutory provisions became effective. It was not generally believed among lawyers that, when Parliament provided by statute for certain things to be done but authorised the Secretary of State to decide when they should be done, that constituted authority to decide that they should not be done at all. That, as the noble Lord, Lord Windlesham, noticed, has occasionally been breached in the past and it has usually occasioned some surprise.

In 1994 the Secretary of State went further. He did not simply decide to himself that the provisions should not be implemented; he announced publicly that he had decided that the provisions made by Parliament were not to be implemented. Even that was not all. With a statutory scheme having been approved by Parliament, not only did the Secretary of State decide that it should not be implemented, but he decided that he would make provision for a wholly different scheme, ignoring the intentions of Parliament in the statute. Of course, as your Lordships have recounted, he was firmly told by the judiciary that that was not constitutional. I am bound to say that I share the curiosity of my noble friend Lord Macaulay as to the cost to the public of that episode.

All right, that is in the past. What is more worrying is what is happening now and what is to happen in the future. Now he says, "I need the authority of Parliament. Very well, I shall not simply write the new scheme on my own notepaper. I shall ask Parliament to place a rubber stamp on it. But I shall not ask Parliament to rubber stamp the scheme when it is set out. I want the rubber stamp in advance of the scheme". Lord Hewart rests in his grave, although I suspect that his spirit may be emitting a few howls.

We are now facing the opposite extremity—not a refusal to admit sensible limitations on the doctrine that the legislature is there to legislate but inroads which threaten to eliminate the doctrine itself. Another recent obvious example was the Deregulation and Contracting Out Act. Unless Parliament intends to become a department of the Executive, the time is fast approaching to make a stand.

There is one specific area in which the danger is magnified. The jurisdiction and powers of the judiciary are fundamentally matters for Parliament. It would be doubly dangerous if the Executive sought to reserve to itself the power to decide on the existence and extent of appeals against its own creations. I doubt whether, ever since the Franks Report, there is any serious dispute that tribunals and adjudicators are part of the judiciary.

I must now pause and declare an interest. This is a matter on which the Council on Tribunals, which I am privileged to chair, feels strongly. Although I have no

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reason to believe that my party would disagree, I should make it clear that I am speaking for myself and not necessarily for my party.

Clause 5 provides that the scheme shall include provision for appeals to adjudicators. The remainder of the clause confers a wide discretion on the Secretary of State as to their terms of appointment, their mode of proceeding and all the other matters associated with that. I say at once that there has been some consultation between the department and the Council on Tribunals. I recognise and appreciate the inclusion of Clause 5(7), to which the noble Baroness quite properly adverted, which brings adjudications within the supervision of the council.

But the Secretary of State is left to provide for appeals. He will appoint the adjudicators; he will decide what qualifications, if any, are required; he will decide whether the adjudicators will sit alone, as a panel or in some other combination; and whether there shall be an entitlement to an oral hearing. Those are matters not for the Executive but for the legislature.

I should like to quote from the annual report for 1992-93 of the Council on Tribunals. It states:

    "We emphasise here, as we have in the past, that when establishing new tribunals, the Government should give due consideration to the appropriate legislative division between primary and secondary legislation. To establish a new tribunal by statutory regulation, however clear the legislative intention, does not accord with current practice. Establishment of a tribunal by Act of Parliament emphasises the tribunal's independent standing which is appropriate for a body exercising adjudicative functions in relation to the statutory rights of individuals".

That is a matter of principle which your Lordships would expect me to raise on Second Reading. There are further matters which your Lordships may wish to ventilate in Committee. But in view of the time that I have taken, I shall leave those matters until Committee stage and keep the noble Baroness on tenterhooks.

What should be said now is that the differences in function between the legislature, the Executive and the judiciary are fundamental to our constitution and we shall permit them to be blurred at our peril. I do not believe that the noble Baroness wishes harm to the democratic process. I do not believe that there are officials in the Home Office who are plotting to destroy democracy. I doubt whether even the Home Secretary is opposed to democracy, although there are occasions when he is in danger of misleading us about that. But there can be death from a thousand cuts. And history may judge him less charitably than we do. Meanwhile, we must do that which lies within our power to address the more detailed matters about which anxiety has been expressed in the debate. The noble Baroness may demonstrate her commitment to the democratic process in her responses to those suggestions.

6.24 p.m.

Baroness Blatch: My Lords, as I said at the outset, this is an important issue. We have had a full and interesting debate. It is clear from the thoughtful contributions which have been made that your Lordships feel genuine concern for those who have been injured as a result of violent crime. Not unexpectedly, differing

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views have been expressed about what should be done. We are all agreed that we need a system which gets generous payments to victims as quickly as possible and at a cost that is affordable. We believe that our enhanced tariff scheme is the best way to achieve that.

Many points have been raised in the course of the debate and it will not be possible for me to address them all. I know that the matters that I do not address will be the subject of further debate as the Bill passes through each of its stages in this House. Nevertheless, I shall try to cover the main issues that have been raised.

Much has been said about my right honourable friend the Home Secretary in the course of the debate, and in particular by the noble and learned Lord, Lord Simon of Glaisdale, at the beginning of the afternoon. My right honourable friend acted throughout in good faith. He was subsequently judged, as we all know, to have acted unlawfully. With good grace my right honourable friend accepted fully that judgment and acted speedily to present the current Bill before the House, taking into account many of the anxieties voiced by your Lordships and others outside the House.

Much has been said about the detail of the scheme. The detail of the scheme will be set out in the draft scheme which we hope to publish within the next two or three weeks. Copies will be placed in the Library of the House and sent to noble Lords and Members of another place who have taken an interest in the scheme. Of course, copies will also be sent to interested organisations.

The noble Lord, Lord Rodgers of Quarry Bank, referred to undertakings about the future shape and structure of the scheme. Clause 10 requires prior parliamentary approval of the tariff and other key features before the scheme starts. It also requires parliamentary approval before any changes can be made to those key features. Thus, it will be Parliament which has control over the future of the scheme. I shall return later to that aspect.

The noble Lord, Lord Rodgers, referred also to the costs of the scheme and compared them with the costs of the prison service. He suggested that the costs of the scheme are only one-tenth of the costs of the prison service. He seemed to imply in some way that the Government are spending more on offenders than on victims. But expenditure on prisons and the criminal justice system as a whole benefits victims by ensuring that offenders are prosecuted and punished accordingly. That is as much in the interests of offenders as it is in the interests of the community as a whole.

The noble Lord, Lord Rodgers of Quarry Bank, referred to the opening speech of the noble Lord, Lord McIntosh, as pompous. If the noble Lord reads Hansard tomorrow, he will find that one of the adjectives which he used was "pompous".

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