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Baroness Blatch: I understand the noble Lord's point. We certainly need to get on with such arrangements as soon as possible; and, indeed, appointing the authority is most important. However, so too is getting the scheme through all its statutory stages and the Bill passed with Parliament's approval of the scheme. As I have already spelt out, that process will tax all of us as regards ensuring that we meet the deadline of 1st April 1996. But, where consultation can be carried out—certainly subsequent to the original scheme being placed before Parliament and approved—I agree that it is absolutely essential that the authority should be the first point of consultation for any changes, however minor.

Lord Windlesham: The reply from my noble friend the Minister is entirely satisfactory. I regard it as a matter of some encouragement that we have been able to resolve the first issue with consent from all sides of the Committee. I shall not be moving my remaining amendments in the series—that is Amendments Nos. 3, 69 and 72. What was said about transitional arrangements, not only by my noble friend but also by the noble Lord, Lord McIntosh, was persuasive. The subject will no doubt be discussed again when we reach the later amendment of the noble Lord, Lord McIntosh. But I shall not move any of the amendments in the series in my name and those of my noble friends. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Archer of Sandwell moved Amendment No. 4:


Page 1, leave out lines 22 and 23.

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The noble and learned Lord said: One ventures to hope that the atmosphere of consensus which has so far pervaded our debate may augur well for the future. It may be to the convenience of the Committee if, with this amendment, the Committee discusses Amendments Nos. 5 and 27 for a reason which I shall endeavour to explain later. The purpose of these amendments is to write into the Bill the definition of a key term. If we had been told prior to the introduction of this Bill that it was about criminal injuries and had then been informed that it would be necessary to write into the Bill by amendment a definition of the term "criminal injury", we might have expressed some surprise. Parliament is being invited to pass a Bill which does not define the very term which is central to the entire purpose of the Bill. It simply declares that the definition "may be specified".

I doubt whether our anxieties would have been laid to rest if we had been told, "It is all right. After Parliament has passed the Bill and it is on the statute book the Government will produce a scheme to explain what they mean by the term which is the key to the whole thing". It is true, of course, that the noble Baroness helpfully circulated to a number of us the draft of the scheme in advance of this debate and for that we are grateful. I am sure, however, that she would not regard that as a substitute for placing in the Bill something which ought to be in the Bill.

At Second Reading I ventured to question a matter which seems to have occasioned some surprise to the scrutiny committee—the constitutional propriety of a Bill which has no content, just a series of blanks, and empowers the Government to fill in the blanks after Parliament has parted with the Bill. Surely, normal constitutional practice is for the Executive to submit a proposal to Parliament and then Parliament rejects it or passes it or amends it, but Parliament is the legislature and that is what is meant by legislating. Of course the proposal need not consist of every detail of the scheme. Lord Hewart back in 1929 thought that it should. He thought that subordinate legislation itself endangered democracy. He was a former Conservative Law Officer. They do not make Conservatives like that any more, and no one would now argue for so extreme a view. But what the Government are doing is to invite Parliament to pass a Bill which virtually declares that the Secretary of State may do as he likes. That is not legislating; that is signing a blank cheque.

Of course, as we were told at Second Reading, it is more flexible to leave it to the Government to make changes and amendments whenever they think fit. So it is, of course. A blank cheque is always more flexible than one in which the drawer inserts what he is agreeing to. The conclusion of that argument would be to abolish the legislature altogether and leave everything to the Executive. No doubt the Home Secretary would be rather in favour of such a proposal, particularly when the judiciary told him that it was a usurpation to introduce a scheme on the very subject on which Parliament had legislated while ignoring the conditions which Parliament had imposed. I remember that some time ago the noble and learned Lord, Lord Hailsham, spoke of a elected dictatorship. This is a legislative vacuum.

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We are told that there will be an affirmative resolution and for that we are grateful. We are grateful to the noble Lord, Lord Windlesham, for having raised that matter so early in our proceedings. However, I hope we will be forgiven if we are not wholly comforted. We all know the shortcomings of subordinate legislation, even when it is subject to an affirmative resolution. My noble friend Lord McIntosh mentioned some of them a few moments ago: an unamendable scheme; a brief debate in the silent hours of the night. In this busy generation I suppose that must suffice for matters of detail, but that does not mean that Parliament must abdicate its legislative role in the very structure of what is proposed. We would wish to register our protest against this haemorrhaging to which parliamentary democracy is being subjected.

As to the definition of a criminal injury which we invite the Committee to write into the Bill, it is unlikely that there will be much controversy about that, because it is the Government's own definition in the draft scheme. Our quarrel is not with the definition. However, if it is ever to be changed we want to see Parliament invited to alter it by a proper constitutional process because it is a key term in the whole Bill. If some future Home Secretary decided to exclude half the crimes of violence to which the scheme applies, we want not merely to be told but to be part of the decision. To be informed that it will be subject to an affirmative resolution does not meet that anxiety. As to that part of the definition which relates to the place where the offence took place, we are content for that to remain in the scheme. There is room for discussion as to what is a matter of detail. However, we are troubled when we find that the definition of a detail is in effect everything which the Government may seek to do. Henry VIII might have approved of that, but Henry VIII, of course, is dead.

Finally, as regards Amendment No. 27, we suggested that that might conveniently be grouped with Amendments Nos. 4 and 5 because it is an example of what they are about. We have no quarrel with what the scheme proposes. We are saying simply that this is an example of matters which ought to be in the Bill. Our Amendments Nos. 4 and 5 say that in any event to have a Bill about criminal injuries which does not define the term "criminal injury" is a constitutional impropriety. I beg to move.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before I read out Amendment No. 4 I should inform the Committee that a mistake occurs in Amendment No. 5, which is grouped with Amendment No. 4 on the Marshalled List. The third line from the end, which refers to subsection (3)(a), should refer to subsection (1)(a).

4.15 p.m.

Baroness Blatch: The aim of Amendments Nos. 4 and 5 is to bring onto the face of the Bill some of the more detailed provisions of the scheme itself, those which establish what constitutes a "criminal injury" for the purpose of the scheme, and those which provide for the payment of awards by structured settlements. We do not think that is either necessary or appropriate.

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Clause 1 of the Bill requires the Secretary of State to make a scheme for the payment of compensation to the victims of criminal injury. Among other things Clause 1 of the Bill requires the scheme to specify the meaning of "criminal injury". The substance of new Clause 1 draws heavily on the draft scheme we have published in this respect. The remaining clauses of the Bill set out various matters in respect of which provision must be made in the scheme, and also give a clear indication of the scope of the Secretary of State's powers by giving examples of particular matters in respect of which provision may be made. The Bill thus clearly sets out the basic parameters of the scheme but leaves the detail to be set out in the scheme itself made under the Bill's powers.

I propose to set out arguments which will apply to other amendments which seek to insert the detail of the scheme onto the face of the Bill. The Delegated Powers Scrutiny Committee of this House was clearly not averse to this approach. As has already been said, in its fourteenth report it commented, among other things, that the House may be satisfied that the Bill sufficiently defines the essential elements of the proposed scheme. It also said that the House may consider that Clause 10-requiring approval of the most significant parts of the proposed scheme by the affirmative resolution procedure—confers an appropriate degree of control of the exercise of the delegated powers. Since then, as the Committee will be aware from the amendments we have tabled to Clause 10, we are proposing to go further and make the whole scheme subject to prior parliamentary control by the affirmative resolution procedure. Subsequent amendments will also be subject to parliamentary control in the form of either the affirmative or negative resolution procedure, depending on whether or not the changes relate to key features of the scheme.

I invite the Committee to consider the disadvantages of trying to put too much detail on the face of the Bill. That would be too prescriptive, too unwieldy and too inflexible, requiring further primary legislation to make any changes that prove necessary in the light of experience or changing circumstances. I should say here that although these amendments seek, by and large, to replicate in the Bill some of the detailed provisions of the draft scheme which was widely circulated at the end of August, it has already become clear from the very useful feedback we have been receiving that some of those provisions may need to be amended in the interests of clarity and accuracy. Thus, to incorporate such provisions in the Bill—knowing already that some changes may well be needed—would be irresponsible and could only work to the disadvantage of victims. On the other hand, there is no disadvantage to victims in not having the detail set out in the Bill itself.

It might be argued nonetheless that we should accept these amendments—and similar ones—and change them as necessary during the remaining stages of the Bill. However, as the Committee will be aware, there is very little time left, and I would not be able to give an assurance to the Committee that we would be able to get everything right in the time available, particularly as we are still receiving comments on the draft scheme which could necessitate further change.

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As an alternative it might be suggested that we accept the changes as drafted but provide a further power in the Bill to make any changes that subsequently prove necessary by subordinate legislation. I doubt that taking such Henry VIII powers would be regarded as acceptable. The Committee may agree that having gone to all the trouble of setting out a detailed scheme in primary legislation it would be inappropriate to allow it to be changed by secondary legislation. That would not seem to serve any good purpose. We think our approach is much better. It is pragmatic, sensible and transparent. That is important. In addition, it will not place victims at any disadvantage. Similar arguments apply to Amendment No. 27. That aims largely to replicate paragraph 42 of the draft scheme, which makes provision for structured settlements.

I have explained why we think it inappropriate and unnecessary to include such detail on the face of the Bill, and I would have asked the Committee to reject the amendment on that point of principle alone.

Furthermore, the substance of the amendment is unacceptable because it makes no provision for the cost of setting up the structured settlement to be met from the award. That would mean that the cost would have to fall on the scheme administration. That does not accord with usual practice and is not acceptable.

I hope that for those reasons the Committee will reject the amendments if they are pressed.


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