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Lord Simon of Glaisdale: I hope that the noble and learned Lord will forgive me for intervening, but when he refers to "academic circles" is he entirely correct? I was repeating the arguments which were advanced originally by Professor Atiyah in 1964.

Lord Rodger of Earlsferry: I was indeed referring to Professor Atiyah. I am sure that he would be considered to be part of "academic circles". He has discussed the matter and various logical points have been made, but the fact remains that for over 30 years governments of both parties have considered that a scheme for criminal injuries compensation was something that should be maintained and people have benefited from it. In this Bill we intend to put it on a new footing by way of a tariff scheme. Of course, points have been made against that, such as those advanced by the noble and learned Lord, but I hope that he will forgive me if I deal simply with the matters raised by the amendment.

The thinking behind this provision, which of course is not a provision with the exception of the matter relating to fire fighters which would be amended by the amendment, is that there are people such as police officers, fire fighters and other members of the emergency services whose jobs necessarily involve taking some risks in the context of apprehending people or in containing crime. They are paid and their conditions of employment are based on the fact that such risks are involved. Nonetheless, where they have taken exceptional risk, and have taken themselves outside what would be the normal aspects of their job, it seems right that they should be entitled to criminal injuries compensation, but not otherwise.

The noble and learned Lord, Lord Ackner, rightly draws attention to the fact that that is changing the position of fire fighters because under the present scheme in the kind of case that the noble and learned Lord described the fire fighter would receive compensation, whereas I am happy to concede that under this kind of scheme it is likely that he would not receive it.

However worthy may be the profession of fire fighters, they are not more worthy than other members of the emergency services such as police officers and ambulance officers. If one supposes that a police officer and a fire fighter are both called out to the same fire caused by arson and are both accidentally injured by

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stumbling on the way to the fire, or whatever it may be, the amendment would maintain what I would submit is an untenable anomaly whereby the fire fighter could claim for the injury which he had sustained but the police officer could not unless the activity had involved exceptional risk. There would be a similar contrast between fire fighters and ambulance officers. That is not an acceptable distinction. It is right that all should be on the same basis.

It is for that reason that we would resist the amendment which is directed towards fire fighters, and say that so long as the idea of exceptional risk applies—for the reasons I have given I believe it is appropriate—fire fighters should be treated in the same way as others. As the guide to the existing 1994 scheme (the one declared unlawful) made clear, in the case of members of the public who "had a go" and were injured, the approach taken would be different from that taken towards those who have been trained, such as police officers, and it would be more generous. That is the thinking behind what is in the scheme, which I believe is correct. It is also correct that fire fighters should be put on a par with others.

Lord Archer of Sandwell: Perhaps I may say a word first in reply to the noble and learned Lord, Lord Simon. His argument, understandably, is that it is always invidious to single out a particular group of people for support. He explained that his difficulty extends to making provision for any victims of crime as against those who suffer injury in other ways. As he said, he and I frequently find ourselves shoulder to shoulder. I have the misfortune on this occasion to follow his premises but to draw a different conclusion.

I confess that I should prefer to see support for all those in need. I should like to see the criterion of support being not the occasion of the injury but the need. But he and I, I fear, are bound by the parameters of the Bill, and it may be that that is a debate which we will have to have on some future occasion.

I respectfully agree with the noble and learned Lord that exclusions from the Bill are not to be encouraged, for the very reason that he gave: on the whole, one should treat all alike. I thought at first that he was objecting to our singling out specifically fire fighters for special treatment. I will, if I may, return to that in a moment.

The noble and learned Lord, the Lord Advocate, in his reply said, "Well, some people are paid to take risks. If they join a particular profession, they agree to take those risks". Upon that, I would make two comments. First, from my reading, the exclusion in the Bill goes much wider than that. It denies compensation to the helpful passer-by whom we all wish to help. The noble and learned Lord said: "Well, we would hope that the claims officers would take a liberal view of these matters". If it is intended to assist helpful passers-by, would it not be better if we made it clear rather than made it as difficult as possible for those who want to help them?

My second comment is that it would be equally persuasive to say that those who by way of a profession regularly take risks for the public benefit should be more

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generously rather than less generously treated. It is a little mean to ask all the kinds of people to whom the noble and learned Lord referred—policemen, firemen, ambulance drivers—to do what is required and say, "Well, we do need them, and our everyday lives require that they should be constantly taking risks, but they are paid for it. Let's forget about them". I should have drawn the converse conclusion.

It is more difficult, I agree, to argue that firemen should be singled out. If firemen, why not ambulance drivers? Why not policemen? That I agree is a fairly difficult point to answer. In fact, if I may say so, I should be surprised if the Government were particularly endeared to fire fighters as a class since it was their trade union which initiated the litigation which led to the 1994 scheme being declared to be unlawful.

The noble and learned Lord, Lord Ackner, if he will permit me to say so, provides an answer to the objection. The fire fighters have it already. What the Bill is doing is to take it away. If a justification were required, I should have thought that that would serve as a justification. However, the noble and learned Lord has put an idea into my head. Perhaps we are asking for too little, and asking for too little is always a mistake. My noble friend Lord McIntosh and I might like to consider this further, and perhaps even have discussions with the Government about it, and then consider, if necessary, what further remains to be done on Report. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 41 not moved.]

Lord Archer of Sandwell moved Amendment No. 42:


Page 3, line 20, leave out from ("appropriate") to end of line 22.

The noble and learned Lord said: I have hardly recovered my breath. It may be for the convenience of the Committee if, with this amendment, we discuss Amendments Nos. 43, 44, 54 and 55. I say at once that we have put down these amendments in the interrogative mood. Amendment No. 42 relates to claims officers (the officials who are to determine claims under the scheme). Clause 3 (5)(b) provides that a claims officer:


    "shall not be regarded as having been appointed to exercise functions of the Secretary of State or"—

No, I think it should be "nor":


    "act on his behalf".

The reason I made that note was that I thought, grammatically, the word should perhaps be "nor". If it is going to be retained, that is something which should be drawn to the attention of the draftsman.

Our problem is that we wondered why those words had been included. If the paragraph had referred to "making decisions", then we might have felt more at peace, although I suspect we should still not have been fully clear as to what was intended, because when claims officers are making decisions they are acting judicially, as I understand it, and it would be right in some way to mark their independence. But the Bill refers to "exercising functions". Presumably, that is intended to include administrative functions. Why, we

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ask rhetorically, does the Bill make such a fuss about those functions not being taken on behalf of the Secretary of State?

One explanation that crossed our minds was whether it was all intended to exclude the investigations by the Parliamentary Commissioner—the ombudsman—and, if so, why? What do the Government believe they have to conceal? However, that does not appear in Schedule 2 to the Parliamentary Commissioner Act 1967. None of the proceedings of those who administer the criminal injuries compensation scheme appear there, unless I have overlooked a subsequent amendment. If that is right, it would not be an authority to which the 1967 Act applies and therefore there would be no need specifically to exclude claims officers. Is that the reason? The answer appears to be no.

Moreover, in Amendment No. 60 the Government are specifically bringing certain functions under the Bill within the jurisdiction of the Parliamentary Commissioner. And what functions? Among others are the administrative functions of a claims officer. The amendment seeks to provide that for the purposes of the Parliamentary Commissioner Act 1967 the functions of a claims officer,


    "shall be taken to be administrative functions of a government department to which this Act applies".

That refers to the 1967 Act. Therefore, in Clause 3 the Government are saying that a claims officer is not to be taken as exercising functions on behalf of the Secretary of State. In Amendment No. 60 they are saying that his function shall be taken to be a function of a government department within the 1967 Act. Perhaps it is nothing to do with the Parliamentary Commissioner but it is all very puzzling. It was in that spirit of inquiry that we set down Amendment No. 42.

Amendment No. 43 also relates to claims officers. Subsection (6) declares that:


    "No decision taken by a claims officer shall be regarded as having been taken by, or on behalf of, the Secretary of State".

As I said a moment ago, it is less mystifying since their decisions will be judicial, but precisely what is intended to be excluded by those words?

Amendment No. 44 relates to the scheme manager. Subsection (7) makes the same provision about him. I understand that his functions are not intended to be judicial but wholly administrative. In fact, a flash of illumination crossed my mind earlier today when the Minister said that the whole business about a scheme manager was to do with privatising the whole business of criminal injuries. If that is so, I should prefer to lay it aside for the moment because it is an evil that we can confront if ever it arises. At the moment, scheme managers are in, too, and they are not acting on behalf of the Secretary of State.

Amendment No. 54 relates to adjudicators, who are officials who will be appointed to hear appeals from claims officers. Clause 5 (4)(b) provides that they,


    "shall not be regarded as having been appointed to exercise functions of the Secretary of State".

They will fall within Amendment No. 60. Amendment No. 55 relates to a similar provision about the decisions of adjudicators, who one would certainly have thought would be acting judicially.

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We are puzzled and we are moving these amendments more out of curiosity than for any other reason. But when we are told the purpose of the provisions we will seek to assess their merits. At this stage of the debate we are simply seeking enlightenment. I beg to move.

5.30 p.m.

Lord Rodger of Earlsferry: Perhaps I may first deal with the matter relating to the ombudsman. The noble and learned Lord drew attention to the provisions of Amendment No. 60, which will insert a new clause. That is designed specifically to bring these various functions within the scope of the Parliamentary Commissioner. That was done in order to avoid the kind of suspicion that the noble and learned Lord put forward; that the provisions here might somehow or another be directed in order to keep these matters out of the purview of the Parliamentary Commissioner. That is not the intention. Indeed, it is the intention that the Parliamentary Commissioner should have jurisdiction in respect of such matters. Of course, his jurisdiction will not extend to individual cases but to matters of maladministration. That is the general background.

I turn to the detail of the clause. I believe that when the noble and learned Lord has time to look at the wording again he will find that the grammar is correct and that it should read "or" and not "nor". Perhaps he might look at that at his leisure. As regards the justification of the provision, it is designed to keep an arm's length distance between this body and the Secretary of State in much the same way as in practice has existed with the board hitherto. It is in order to make that clear—that the body is not operating in any sense on behalf of the Secretary of State—that this particular language has been chosen. Of course, it is to make that clear that the new clause is worded in this way.

Members of the Committee will readily appreciate—and the noble and learned Lord took no difficulty in being persuaded of it—that it would be quite wrong for the functions of a claims officer in deciding cases or for a member of the adjudicators' body to in any sense be acting on behalf of the Secretary of State. That has never been the position and it would be wholly undesirable. If it were ever suggested that somehow or other decisions were final decisions taken on behalf of the Secretary of State and therefore his decisions the noble and learned Lord would have been the first to object.

The intention is to make clear that all the functions of this body—which include, in effect, functions other than the matter of decisions, which the noble and learned Lord has pointed out—are not to be regarded as functions taken on behalf of the Secretary of State. The decisions are not that; rather they are of this separate body. We believe that that is correct. The provision has been worded in this way in order to strengthen and to make clear in detail on the face of the Bill that this is the structure that has been designed. That is the reasoning behind the provision and I hope that with that explanation the noble and learned Lord will feel relatively content.


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