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Earl Russell: I found the noble and learned Lord's reply encouraging as far as it went. However, I wish to clarify one small point. If somebody in this position

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were sued for something relative to the discharge of his official duties would the wording in the Bill have any effect on whether his costs would be met from public funds?

Lord Rodger of Earlsferry: As always, the noble Earl raises an acute point. Rather than give him an off-the-cuff answer which might turn out to be incorrect, perhaps he will permit me to write to him on that matter.

Lord Archer of Sandwell: The noble and learned Lord has made an old man very happy. Our suspicions about the parliamentary commissioner were unworthy.

I am not sure that the remainder of what the noble and learned Lord said has set my doubts wholly at rest. I acquit the Government of any deliberate attempt to have a hidden agenda. But while the noble and learned Lord was speaking I confess I was asking myself what situation would be excluded by those words. Are they intended merely to be declaratory? Is it merely telling the world that the claims officers and others are at arm's length from the Secretary of State? One does not usually find purely declaratory words in a statute. What will be excluded?

I confess that my mind was working along the same lines as that of the noble Earl, Lord Russell. I wondered whether, if something were done administratively by some of the people concerned, it might mean that the Government would say that the Treasury was not going to pay the damages or the costs. I too shall be very interested to hear the answer given by the noble and learned Lord.

For the moment, I am content to leave the matter there. If the reply is less than satisfactory, we may return to the matter on Report. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

Clause 3, as amended, agreed to.

[Amendment No. 45 not moved.]

Lord Archer of Sandwell moved Amendment No. 46:

Before Clause 4 insert the following new Clause—


(".—(1) Where a decision has been made by a person appointed by a Scheme manager under section 3(4)(a) or by a claims officer appointed under section 3(4)(b), an applicant may apply for a review of that decision unless—
(a) the decision was itself made on a review under this section or
(b) the decision was made pursuant to a direction given on appeal under section 5 below.
(2) Any such review shall be conducted by a claims officer or other person more senior than the claims officer or other person who made the decision.
(3) The Scheme shall include provision as to time limits and methods of application for a review and as to notification to the applicant of the outcome of the review and of the reasons for the decision.
(4) In particular, an applicant may apply for a review of the following decisions made by a claims officer—
(a) not to waive any time limits in the Scheme;

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(b) to refuse or withhold an award under the Scheme (including such decision made on reconsideration of an award);
(c) to make an award under this Scheme including—
(i) a decision to make a reduced award, whether or not on reconsideration of an award;
(ii) a decision to place a particular injury under a particular description within the Tariff;
(iii) a decision to place a particular injury at a particular Tariff level;
(iv) a decision as to the amount payable by way of an additional amount for loss of earnings, special expenses or fatal injury;
(d) not to re-open a case under the Scheme; or
(e) to seek repayment of an award under the Scheme.").

The noble and learned Lord said: I say at the outset that what I propose to say in relation to this amendment applies in its entirety and rather more forcefully to Amendment No. 48. I understand that it may be for the convenience of the Committee for the two debates to remain separate but I can spare the Committee a further speech on Amendment No. 48.

Yesterday the Committee debated which matters should be included in the Bill and which could properly be left to the scheme. Indeed, some of our debates today have touched on the same theme. At this stage I should declare an interest. The Council on Tribunals, which I have the privilege to chair, is concerned about the provisions for appeal and review.

The argument applies with much greater force to the provisions for appeal rather than those for review. However, both provisions are part of the judicial process. The Franks Committee, as long ago as 1957, declared at paragraph 40:

    "We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration".

I do not believe today that anyone would seek to challenge that classification. It is our view that provisions relating to the judiciary and the judicial process should be in the body of the Bill and should not be left to the discretion of the Executive, whether or not there is a measure of parliamentary control over subordinate legislation.

Sittings of the adjudicators—they are part of this too—are sittings of a court of law. Provisions to establish a judicial process should be made by Parliament in a statute and should not be left to the Executive.

On behalf of the Council on Tribunals, I express appreciation to the Government for including in Clause 5 the bringing of the adjudicators within the supervision of the council. That is as it should be and I readily pay my tribute to the Government for what they have done. But it is not a substitute for establishing the procedure in the Bill.

In its annual report for 1992-93—I make no apology for reminding your Lordships of a quotation, part of which I used on Second Reading—the council said:

    "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

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    Parliament emphasises the tribunal's independent standing which is appropriate for a body exercising adjudicative functions in relation to the statutory rights of individuals".

It is for Parliament and not for the Executive to decide on the constitution of the judiciary. For that purpose subordinate legislation, even by affirmative resolution, is not, in my understanding, within the constitution.

As regards Amendment No. 46, the provisions for review are part of what is intended as a hierarchy of appeals which should equally be included within the statute. As I say, I accept at once that the argument is not nearly as strong in relation to Amendment No. 46 as it is in relation to Amendment No. 48. I hope that on reflection the noble and learned Lord will feel that this is a matter which goes to the root of constitutional practice and to the whole doctrine of separation of powers. I hope that this matter will be reconsidered. I beg to move.

5.45 p.m.

Earl Russell: I am very glad indeed that the noble and learned Lord tabled this amendment, which draws attention to some fairly substantial problems which we may encounter later if we do not take thought about them now.

The noble and learned Lord dealt with the problem of the distinction between the spheres of primary and secondary legislation. But we need to think also about the sphere of judicial discretion. I am aware that a formula may attempt to reduce the area of judicial discretion but in the case of the Child Support Act we have already seen that when that is done it may give rise to some quite acute problems and may on occasion inadvertently create severe injustice.

I note that the amendment deals with a decision to place a particular injury under a particular description within the tariff. I am glad that that point has been raised because it is the sort of matter with which a formula cannot cope adequately. I have in mind here a friend of mine who suffered an injury at such a point that it is a matter of debate as to whether he lost a foot or a leg. To say that that must be dealt with simply on one side of the tariff or the other shows an inflexibility and a lack of attention to evidence.

There is also a problem about whether the nature of the injury may be exactly the same for one person as it is for another. I have in mind the case in a detective story by the late Cyril Hare, otherwise his Honour Judge Gordon Clark, in which a judge, driving away from the assizes, inadvertently ran over a pedestrian. He was in a state of some anxiety until he learnt that the injury was only the destruction of the end joint of the little finger. The satisfaction lasted only until he discovered that the person concerned was the best concert pianist in England.

That is the sort of case I have in mind when I say that a flat rate tariff without any area for judicial discretion may not take into account adequately the fact that an injury is not quite identical to one person as it is to another. If the scheme is not to break down totally—and in this Chamber we must try to make legislation work

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—it is vitally important that there should be a provision for review which allows for the exercise of real discretion based on a hearing of the evidence.

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