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Baroness Blatch: We strayed slightly from the amendment during the latter part of the debate. I should like to make two points on the pianist who might lose even a small part of one finger which disables him in his career. First, if such a person were the best pianist in the land, it would be extraordinary for him not to have an insurance which provided for just such an injury. Secondly, it is certain that future earnings would be taken into account and that compensation would be reflected in the loss of earnings and, possibly, loss of pension.
Clause 4 of the Bill requires the scheme to include provision for reviews of decisions taken on claims for compensation and for such reviews to be carried out by a person other than the person who took the original decision. The proposed new clause would place on the face of the Bill detailed provisions concerning the circumstances in which a review may or may not be requested and on what decisions, and the requirement for a review to be carried out by a person more senior to the person who took the original decision. It would also place on the face of the Bill a requirement for the scheme to set time limits for requesting reviews and procedures for such requests and for notification of the outcome. We believe that those details are not appropriate for the face of the Bill and that some parts of the proposed new clause are misconceived.
Our intention is that under subsection (1) of Clause 4 an applicant will be able to request an administrative review by the authority of its original decision on his or her claim. This new feature was introduced in the earlier tariff scheme with a view to delivering decisions quickly, cutting out unnecessary appeals, and relieving some of the pressure on the appeals process. Reviews will also help towards quality control. Applicants will have to have been through the review process before formally appealing. There will be a time limit on applications for review and we propose to stick to the 90 days used in the earlier tariff scheme.
Under subsection (2) of Clause 4 the review will have to be carried out by someone other than the person who took the original decision. The reviewed decision may confirm the original decision or substitute a new decision. I can assure the Committee that it is our intention that the scheme will provide, as the 1994 tariff scheme provided, that reviews must be carried out by someone senior to the person who took the original decision. Indeed, it would undermine the purpose of the procedure to do otherwise.
As I said, the proposed new clause would introduce into the Bill prescriptive and technical details which are more appropriate to the scheme itself. The Bill, as I have made clear, is not intended to set down the details of the scheme. It aims to provide a power to create the scheme and set its broad shape, leaving the details to be set out in the scheme. Those who have seen the draft scheme will know that the rules of the review procedure are detailed. The various matters which the scheme describes as reviewable, cover in effect any decision which a claims officer might taken on a claim. As the
We are aiming for simplicity in the language of the scheme, wherever possible, to help claimants understand it. The more the terms of the scheme consist of legal language dictated by the terms of the legislation, the more inaccessible the scheme will be for the ordinary victim.
As I have said, it is our firm intention that any review be undertaken by someone senior to the person who took the original decision. By that we mean senior in rank. The enhanced tariff scheme will make that clear. However, subsection (2) of the proposed new clause would not secure that as it does not say what is meant by the phrase "more senior than". Is it someone more senior in age, senior in length of service, senior in rank or senior in experience? The Bill itself does not refer to a hierarchical body which might imply some definition of seniority. The scheme, however, will make it clear that the claims officers will be working for an established bodynamely, the Criminal Injuries Compensation Authorityin which a hierarchical structure will be recognised.
The provision in subsection (3) of the proposed new clause, for the setting of time limits for applications for review, is unnecessary as Clause 3(1)(f) of the Bill already provides a general power to set time limits.
The matters against which an appeal may be made, set out in subsection (4) of the amendment, are in effect set out in the draft scheme. But we consider that the proposed new subsection (4)(c)(iii) (appeal against a decision to place a particular injury at a particular tariff level) is misconceived as it would imply a right of appeal against the tariff itself, which would first have received Parliament's approval. Of course claimants will be able to apply for a review on the grounds that their injury should have been assigned to a different injury description with a higher tariff payment. But that particular provision would be a recipe for any number of appeals which would be outside the appellate body's jurisdiction as it would have no authority whatever to change the tariff.
I have two further points to make. The first is in response to the noble Earl, Lord Russell, and is most important. Even given the number of descriptions that we have set down in the tariff so far and which may soon be approved by Parliament, it still may be possible to have an injury which does not fall neatly within any of those categories and to which the board deems a new description must be applied; or, indeed, the board may decide that it should fit into a particular category and a particular band. In such a case, it would be for the authority to make the determination. If necessary, that would have to be presented to the appellate body which could make an interim payment to the claimant while making a recommendation to my right honourable friend the Home Secretary. He would then present Parliament
Secondly, I should like simply to spell out the review system. As was said earlier, the Secretary of State remains responsible for the scheme itself but not for the individual decisions taken. The process then allows for an applicant to have an application considered and determined by the authority. If the applicant remains dissatisfied, he can request a review by a more senior officer. If he continues to be dissatisfied, he can then appeal to the appellate body. If the applicant remains unhappy, it is possible as a very longstop to resort to judicial review. If the applicant believes at any time that the administrative process has not been appropriate or that there has been some maladministration, then that person would come under the jurisdiction of the ombudsman with whom we shall be dealing in relation to a later amendment.
The roles are distinct. The appeals system is fair; indeed, it is a very sophisticated system. I also believe that we have a mechanism in place which will be subject to parliamentary approval to deal with those anomalous cases which come before the board from time to time and which do not fit neatly into the categories set out in the tariff of the scheme.
Lord Archer of Sandwell: I must tell the noble Earl, Lord Russell, that his intervention would have been a powerful contribution to some of the issues that we debated yesterday. I hope that he will be able to participate when those debates return to the Chamber on Report. They are important themes in the Bill.
I turn now to the Minister's response. I do not believe that I introduced the amendment very well. I accept that that was my fault. However, the point of issue is not the details of the review scheme. As schemes go, it is not a bad scheme. We were faced with the difficulty of trying to bring into the Bill the essentials of what was in effect an appellate scheme, leaving the details outside the Bill. As with some of our other amendments, it was not an easy task. Perhaps we did not do it very well.
Similarly, I appreciate that the Minister's brief was prepared in advance of the debate. However, I thought that I said enough on Second Reading to indicate what was really in our minds. The points in issue were not referred to in the Minister's response. We are very largely agreed on that. What is in issue is that a judicial process should be included in a statute and not in secondary legislation. It should not be left to the Executive to decide on the functions and constitution and powers of the judiciary. It is a constitutional point that we are making.
I wonder whether the noble Baroness would have used the same arguments if we were dealing with an appeal to the High Court and we were setting up a separate division of the High Court for the purpose of hearing the appeal. What troubles me is that I have a suspicion at the back of my mind that she would have done so, because from the way in which the mind of the Home Office seems to be working at the moment that could well have been in her brief. But obviously I have
What we are troubled about is the whole business of the separation of powers; what we are troubled about is the Executive making provision for judicial hearings about complaints about the Executive. There is no point in my going on at this stage. I am quite happy, if the noble Baroness would care to have a private conversation, to discuss this with her, with or without her officials. It is something to which we shall return, but this is obviously not the occasion to deal with it. For the moment, I beg leave to withdraw the amendment.
Baroness Seear: Before the noble and learned Lord sits down I wish to say that we on these Benches strongly support the point he has made about administrative action where judicial action is required and the enormous importance of the separation of the powers.
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