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The Lord Chancellor: My Lords, so far as concerns the first point, I take it that the wording is broad enough to cover anyone who is not entitled to legal aid and who would be refused it, for example, on financial grounds if they applied for it. I should not have thought that it would be necessary for a formal application to be made in that situation.

On the second point, I am very happy to consider, with my noble and learned friends the Lords of Appeal in Ordinary, any procedural simplifications that the noble Lord, Lord Lester of Herne Hill, has in mind. However, if one looks at the general picture to which he referred, it is important to observe that the costs in legal services associated with appeals to this House are large in comparison with the fees that are here in question. For example, the average taxed costs on bills in party and party taxation in this House in 1993 were of the order of £27,000, and in 1994 they were of the order of £33,000 when the fees charged for the facilities of the House, including of course the services of the Lords of Appeal in Ordinary (usually five in number), were about £500. What the House has decided to do is to go some distance towards making the fees for those facilities in this House somewhat more realistic.

On Question, Motion agreed to.

Criminal Injuries Compensation Bill

3.13 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord McIntosh of Haringey moved Amendment No. 31:

After Clause 2, insert the following new Clause—

Injury for which no provision is made in Tariff

(".—(1) If an application for compensation is made in respect of an injury for which no provision is made in the Tariff, but which appears to the claims officer to be sufficiently serious to qualify

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for at least the minimum award, the claims officer shall refer that application to the chairman of the body of adjudicators for determination.
(2) The chairman of the body of adjudicators may make a recommendation to the Secretary of State as to the amount of compensation which that injury should attract if subsequently included in the Tariff.").

The noble Lord said: This is a continuing part of the series of amendments which we started last evening and will carry on through the large part of today, which seek to subject to parliamentary scrutiny the draft scheme which was so helpfully provided during the recess. We started with those elements of the scheme such as the definition of "eligibility", which were, in our view, uncontroversial, and we have proceeded through a whole series of elements of the scheme which are in our view mistaken, poorly drafted, or in other ways unsatisfactory.

The treatment of unlisted injuries, which is the subject of Amendment No. 31, is one of those which, in our view, is both poorly drafted and unsatisfactory in total. It is not as if this is a minor problem. The illegal tariff scheme which was brought in in 1994 provided 187 different specified injuries. By the time the present scheme was put forward there were already, after barely a year's experience of the old scheme, 310 specified injuries for which different amounts of compensation are payable.

It is clear that we have not reached the end of that road and that more injuries will be recognised as deserving explicit attention if the scheme is to achieve its objective of being transparent and speedy. The Minister has made that point herself on a number of occasions. The need to deal with unlisted injuries is also recognised in paragraphs 20 and 21 of the scheme; but the arrangements proposed in those paragraphs are extraordinarily complicated and not particularly satisfactory.

The scheme provides that the authority, following consultation with the panel, refers to the Secretary of State any injury for which no provision is made but which appears to be sufficiently serious to qualify for at least the minimum award, and makes a recommendation to the Secretary of State on the amount of compensation, and is involved in consultation with the panel. The paragraph makes it clear that the reference to the Secretary of State is not to refer to the circumstances of any individual application for compensation under the scheme other than the relevant medical reports.

Paragraph 21 of the scheme goes on to say that if an application is made for an injury for which no provision is made in the tariff and the authority decides to refer the injury to the Secretary of State, an interim award may be made of up to one half of the amount of compensation which is recommended it should attract if subsequently included in the tariff, but is not recoverable if the injury is not subsequently added to the tariff.

That insistence on making additional injuries in the tariff separate from the individual case seems to us a roundabout way of dealing with what should be a simple problem. The new clause which we propose in place of

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paragraphs 20 and 21 of the scheme is simpler and more just. We are saying that the claims officer who encounters an injury which is not included in the tariff,

    "shall refer that application to the chairman of the body of adjudicators for determination."

and that,

    "The chairman of the body of adjudicators may make a recommendation to the secretary of state as to the amount of compensation which that injury should attract if subsequently included in the Tariff".

That is a more straightforward procedure. It does not involve any of the roundabout methods which are included in paragraph 20, and the existing flexibility in the scheme would enable an interim payment to be made without the complications which are proposed in paragraph 21.

The amendment is not intended to cause any additional expenditure. It is not intended to breach the principle of an enhanced tariff scheme which the Government are putting forward. It is merely intended to make life easier for the panel and for the Secretary of State. I beg to move.

Lord Airedale: Medical science continues apace. New discoveries are being made all the time and every new discovery requires new medical terms in which to describe the discovery. No doubt the tariff will be updated gradually to take into account all the relevant new medical terms, but one cannot expect the tariff to respond instantly to new medical terms. There is bound to be an interim before new terms get into the tariff. We do not want a situation to arise where an applicant is told, "The tariff does not so far contain an injury described in the terms in which your particular injury is described by your doctor. Therefore your application fails for this reason". We do not want that situation to arise. We want there to be an interim period, as the noble Lord, Lord McIntosh, has described, during which the tariff will no doubt be updated. But in the meantime, we want an amendment of this nature to tide over the interim period and I hope that it will be acceptable.

Baroness Blatch: It appears that there is some misunderstanding about this aspect of the Bill; that is, a person being injured criminally but for whom no category is set out in the scheme.

This amendment clearly draws heavily on paragraph 20 of the draft scheme, which makes provision for the handling of injuries which are not listed in the tariff. Under that paragraph, it would fall to the authority (the Criminal Injuries Compensation Authority) to consult the appeals panel and then make a recommendation to the Secretary of State.

This amendment would require the claims officer dealing with an application in respect of an unlisted injury to refer it to the chairman of the appeals panel for a decision. In other words, the chairman of the appeals panel would decide what was an appropriate award for that injury, without necessarily having to refer to the tariff or indeed to anything else. The chairman could then, if he so chose, make a recommendation to the Secretary of State about which tariff band that injury might be placed in. That is rather like closing the stable door after the horse has bolted.

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I am afraid this amendment is unacceptable on two counts. First, there must be, and must clearly be seen to be, complete separation between the initial decision-taking process and the appeals process. The authority, and the authority alone, must be responsible for the initial or first decision. That leaves the appeals panel free to consider appeals against the authority's decision, without having been involved in any way in that initial decision. If the appeals panel were to determine cases of unlisted injuries, it would itself be taking the first decision. To whom, then, could a dissatisfied claimant appeal? To the appeals panel? Hardly, because it would then manifestly be both judge and jury.

Secondly, it is quite wrong that the chairman of the adjudicators should decide in any particular case what an appropriate award should be for an unlisted injury. Certainly he may make a recommendation—and the draft scheme makes provision for this. But the final decision must be one for the Secretary of State and for Parliament which, under the Clause 10 amendments we are proposing later, will have the final say in all such matters. It would be quite inappropriate for anyone else to have that power.

The amendment is, I am afraid, also defective technically in that it does not allow for the possibility of the scheme being contracted out at some future date when it would fall to the staff appointed by the scheme manager and not to a claims officer—as specified in this amendment—to make the necessary referral to the chairman of the appeals panel.

I am afraid that the amendment represents a very good example of the dangers of trying to put too much of the detail of the scheme on to the face of the Bill. If this clause passed into law we should be stuck with a rigid, inflexible process that would not work in the way we would all wish and which could not be corrected other than by further primary legislation whenever a suitable vehicle could be found.

Therefore, the process allowed for under the scheme is that the authority would make a decision. If the injury was unlisted in the tariff it would present that to the appeals panel which would make a recommendation to my right honourable friend the Home Secretary. Then, if the Home Secretary wished, he would make a proposal to Parliament for Parliament to propose either a new listing or to incorporate it in a band already contained within the tariff. In the meantime, an interim payment can be paid to the applicant. As the noble Lord, Lord McIntosh, pointed out, if an overpayment were made to the applicant it would not be withdrawn and if any payment were made it would not be withdrawn if the applicant subsequently failed.

We believe that our approach is the right one. It allows for changes to the tariff to take place but it is for Parliament to decide. What I find interesting about the amendment is the fact that almost throughout the debate we have been pressed to make sure that the scheme appears on the face of the Bill or that Parliament should deal with alterations to the Bill or to the scheme. Here is a way of allowing a change to the scheme without the approval of Parliament and we believe that the approval of Parliament is paramount.

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