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Baroness Blatch: This is another example of wishing to take one small part of the scheme and put it on the face of the Bill. I have argued long and hard about the principle of that. We believe it is important to keep the details of the scheme, subject to the affirmative resolution of both Houses, and thereby allowing a degree of flexibility should there need to be any modification whatever of a minor or major nature in future. We feel that that flexibility is very important. We are not able to accept the notion that just little pieces of the scheme can be translated from the text on to the face of the Bill because we feel that it is much better to allow for such flexibility. I hope that the amendment will not be pressed.

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Lord McIntosh of Haringey: I suppose that the Minister is being quite helpful to those who were not present for the previous episodes of this soap opera. We made it clear—we have no shame in that respect at all—that we are indeed seeking to include on the face of the Bill what the Minister would, in this case, call one small part of the scheme. We have gone very carefully through the scheme looking at those elements of it, whether or not we agree with them, which appear to be enduring and unlikely to change. Let us not forget that most of those elements have not actually changed since 1964 when the scheme first came into operation. Therefore, they could be thought of as being as enduring as any element of legislation.

We are suggesting to the Committee and to Parliament that those enduring elements of the scheme should indeed be written on to the face of the Bill because we believe that legislation should be explicit rather than purely enabling. The Bill has been criticised by the Delegated Powers Scrutiny Committee for being largely an enabling Bill. Indeed, over and again in Clause 2 the Bill says that there shall be compensation in such a manner as "may be specified".

However, a concession has been made. The principle of the affirmative resolution procedure has been accepted and is to be incorporated in amendments which will be dealt with later today. But that does not absolve us from our responsibility as a serious opposition party of taking the essential elements—that is, the enduring elements—of the scheme, putting them before Parliament, and seeking to have them debated.

I am not surprised that we do not have a large presence in the Chamber for such debates; indeed, I am not surprised that a number of people are deterred from taking part in them because the issues are complex and technical. In many cases, as has become obvious, they are too complex and technical for me. However, I do not in any way apologise for having put forward one small part of the scheme and asking that Parliament should consider and approve it and, if necessary, amend it.

As to the substance of the amendment, the Minister made no specific complaints about it. Indeed, the noble Baroness could hardly do so because the wording comes entirely from paragraph 22 of the draft scheme and we were not responsible for the draftsmanship. It may be one small part of the total Bill; it is nevertheless an extremely important part. Many people coming into contact with the new scheme when it is introduced for the first time will feel it most unjust if the wording has not been amended in the way suggested. They will feel it unjust not to receive compensation for loss of earnings for the first 28 weeks after the injury if they lack any other source of income in the form of statutory sick pay or the indulgence of their employer, or, indeed, if they have no employer at all, as would be the case, for example, with the self-employed.

When the scheme comes to be promulgated and put into force on 1st April 1996, which I believe to be the intended date, I do not believe that the public at large will understand why such a severe restriction has been made in the loss of earnings provisions in the scheme

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and in the tariff. I was going to move to press my amendment, but I see that the noble Lord, Lord Carlisle, wishes to intervene.

3.45 p.m.

Lord Carlisle of Bucklow: I am much obliged. Is the noble Lord now saying that the purpose of the amendment is really the same as was intended by the noble and learned Lord, Lord Archer, yesterday, as regards doing away entirely with the restriction on payment for loss of earnings for the first 28 weeks? If that is the case, I should like to repeat to my noble friend the Minister what I said yesterday; namely, that I believe it is reasonable, purely from the point of view of practicality, to have some cut-off point. Whether or not 28 weeks is the right one is, of course, a matter for debate. However, with the volume of applications now being received, I do not believe that one can really carry on deciding whether someone has lost earnings over two weeks and then decide whether or not as a result of that there has or has not been a benefit to him because his benefits are greater than his loss of earnings. It is that sort of attempt to fine tune which has caused many of the problems taking up the time of the authority.

If that is the noble Lord's intention, I hope that one's silence will not be taken as meaning that one agrees with what is behind the suggestion. I believe that the Government are right to accept on purely pragmatic and practical grounds that people who are only out of work for a very short period should be covered by the tariff figure—if that is what we are to have—rather than go through the rather complicated process of trying to find out the individual loss of earnings in any particular case.

Further, if that is the noble Lord's intention, is he really satisfied that his own drafting achieves that aim? As I understand it, his drafting says:

    "Where the applicant, at the time the claim is assessed, is considered ... to be likely to suffer continuing loss".

When a claim falls to be assessed, it means not only that such a claim has to be made but also that it must go through the various processes of having inquiries made of the police and medical reports prepared. Indeed, the claim would probably come to be assessed for considerably longer than 28 weeks after the date on which the injury occurred. In fact, according to a later amendment of the noble Lord, as the person need not put in a claim until three years afterwards, the date of assessment may well be some three-and-a-half years after the injury.

However, as I understand it, if the amendment is accepted in its present form, the claims officer would have to be satisfied at that time that there was a continuing loss of earnings or of earning capacity. Therefore, the noble Lord may find that his amendment would unintentionally extend the 28-week period rather than reduce it.

Lord McIntosh of Haringey: The noble Lord made two points; indeed, his second point answered the first. It is not, and never was, our intention that there should be loss of earnings payment for someone who loses earnings for only a couple of weeks. Of course, we recognise—the wording is explicit because, after all, it is the

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Government's wording—that we are referring to the time when the claim is assessed and to a continuing loss of earnings or of earnings capacity. We are not saying that short-term loss of earnings should be covered by the scheme. I agree with the noble Lord, Lord Carlisle, that that would be a huge burden on the scheme.

Amendment No. 25, moved yesterday by my noble and learned friend Lord Archer, dealt with a slightly different point—namely, that statutory sick pay does not in fact cover loss of earnings—and suggested that there should be provision for the difference between actual income and a loss of earnings. The point that I am now making is a different one. For the continuing loss of earnings or earning capacity, whether or not the applicant was in work—again, those are the Government's words from the scheme—compensation should not count only from after the first 28 weeks. Therefore, it is not the huge extension in the scope of the loss of earnings scheme that the noble Lord, Lord Carlisle, rightly fears. It is justice for those who, after 28 weeks, at whatever time the claim is assessed, are assessed to have a continuing loss of earnings or earning capacity. This is such an important issue that I think it is necessary to take the opinion of the Committee.

Lord Windlesham: Before the noble Lord concludes his remarks and the debate comes to an end I would like to raise some related matters which arise from this amendment, but from a different angle. Paragraph 22 of the criminal injuries (tariff-based) compensation scheme deals with the crucial matter of loss of earnings. Those Members of the Committee who have taken part in the earlier stages of the debate both on this Bill and on the proceedings initiated by the noble and learned Lord, Lord Ackner, earlier will know that this has been one of the most contested matters; that is, whether or not the scheme should provide payment for future loss of earnings.

The Government—this was welcomed by the organisations in the field—had a change of heart. Initially there was to be no provision in the tariff scheme for loss of earnings, but in the enhanced scheme now before the Committee, which will be enacted as delegated legislation under the authority of this Bill, there is some provision. I think we can all agree that it is of great importance that this paragraph should be comprehensible. Yesterday I declared my interest as president of Victim Support and I repeat it now. Victim Support assisted over 11,000 single claims in the past 12 months. There are large numbers of people both giving advice and in need of advice as regards what their entitlement will be under paragraph 22 of the scheme. The paragraph states:

    "where the applicant, at the time the claim is assessed, is considered by the claims officer to be likely to suffer continuing loss of earnings or earning capacity, such loss will comprise the product of a multiplicand (the annual rate of loss at the date of assessment) and a multiplier (the number of years for which that multiplicand is deemed to be payable) or, when the claims officer considers this approach is impracticable, such other lump sum in respect of loss of earning capacity as the claims officer may determine".

That is an extraordinarily complicated formulation. I have read it several times and I am not sure what it means. Victim Support has asked me to raise two questions which I shall leave with the noble Baroness because they are technical. I am sure she can ensure that

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a reply will be sent to the right quarter. The first question relates to the claims officer's responsibility for determining how long loss of earnings may be claimed for and to ask what experience claims officers will have to enable them to make such decisions correctly. It seems to me that is a fair point on which some information should be forthcoming although I do not press the noble Baroness to produce it now without notice. The second question is to ask for clarification on the type of contingencies which it is envisaged may appear relevant to the claims officers. What will constitute a contingency? Perhaps the noble Baroness will take note of those points and arrange for a reply to be sent in due course.

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