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Earl Russell: The noble and learned Lord has given what, on an administrative level, is a perfectly rational answer. However, he has failed to respond to the human dimension of the argument put by the noble and learned Lord, Lord Ackner. The argument that a hearing contributes to consent is a very powerful one which is within the experience of all of us. Government by consent is a much more tender plant than we often think. It is far more easily destroyed than we sometimes realise. Once it is destroyed it is not easily recovered. One sees in some neighbourhoods of some towns in some countries what the effects may be when consent is destroyed.

I admit that appeals which may have no chance of success may have a cost. I admit that that cost has to be counted. However, we also have to count the cost of what may happen if we do not give people a hearing. We in this place know quite well the financial and, on occasion, human costs of security. The costs of appeal may in some circumstances be in all ways preferable.

6.15 p.m.

Lord Rodger of Earlsferry: Of course I accept, as I did in replying to the noble and learned Lord, that the giving of a hearing may have a psychological effect in individual cases. Nonetheless, I said, I did not believe that that was a sufficient reason for us to accept the

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amendment, especially when it would mean that those who have good grounds for appeal are likely to have the disposal of those appeals delayed by hearings which could not serve any useful purpose and could not lead to success. I fully understand the psychological case, but we do not believe that that is a sufficient reason for proceeding in this way.

To respond to my noble friend Lord Campbell of Alloway, I have read paragraph 52, and also paragraphs 61 onwards which deal with this kind of case. It is because the grounds of appeal will be notified and can be considered that there may be cases which, it can be seen, will not succeed. I gave an admittedly extreme example of such a case. I accept that one could argue that nonetheless in such cases, for the reasons given by the noble and learned Lord, Lord Ackner, and the noble Earl, Lord Russell, one might opt for the psychologically healing effects of having such a hearing. However, for the reasons I have given, the Government do not believe that those effects are sufficient to make this a desirable amendment.

Lord Ackner: There is a decision of the former Vice Chancellor, Sir Edward Megarry, the name of which escapes me, in which he said that the law reports are littered with cases originally thought to be open and shut which in the circumstances turned out to be neither. The phrase "however unmeritorious, are we to allow an oral hearing?" shows a potentially closed mind by the administration.

If it is so clear from the notice of appeal that there are no valid grounds, how many minutes would it take to say to the would-be appellant "Look, Mr. Brown," as the noble and learned Lord, Lord Denning, would have done, "Your problem is that you do not have a case, because of A, B or C". How long would it take to get over that particular hurdle? With an experienced tribunal, would it take three minutes or five minutes? That is all we are arguing about—the expenditure of a matter of minutes in order to send away a dissatisfied applicant with at least the feeling that he has had his day, or his five minutes, in court. In a situation in which, as has been conceded by the noble Baroness, a system replete with rough justice—my phrase—one should bend over backwards to ensure that there is no risk of that permeating the appeals system.

It is for that reason that I moved the amendment. It is clear that the Government are insistent that they will have none of it. Therefore, I beg leave to withdraw the amendment with a view to reading the exact justification and possibly reculer pour mieux sauter at a later date.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendment No. 50:


Page 3, line 42, at end insert ("except so far as the provision relates to functions of persons mentioned in subsection (3)(d)(ii)").

The noble and learned Lord said: In moving Amendment No. 50, I speak also to Amendment No. 52.

These amendments may seem a little obscure, but they have a simple purpose. They are intended to allow claims officers, or staff appointed by the scheme manager, to act as presenting officers at appeals.

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Clause 5 provides the framework for the independent appeals system that will operate under the enhanced tariff scheme. As under the 1990 scheme, and the 1994 tariff scheme, we envisage that cases will be presented to the appeals panel by presenting officers. Their job—I stress this—will be to present the facts of the case and to facilitate the appeals process.

We also envisage that the presenting officers will be claims officers (or staff appointed by the scheme manager). However, the Bill as presently drafted confines their functions to determining claims. These amendments will allow them to act as presenting officers as well.

The first amendment overcomes the obstacle in subsection 5(2) which, as drafted, specifically prohibits the scheme manager from having any responsibility for the appeal process. The amendment provides the necessary exception in respect of presenting officer duties. I beg to move.

Lord Macaulay of Bragar: I understand what the noble and learned Lord said about the operation of the scheme. At Second Reading we raised a question on the use of the words, "if a scheme manager is appointed". Nothing has been done about that. It has not been put the other way: that a scheme manager shall be appointed. The system which the noble and learned Lord outlined depends on the existence of a scheme manager, an appointment which is not compulsory under the terms of the Bill. I may be misreading it, but I should have thought that some consideration should be given to the words, "if a scheme manager is appointed". It could provide that a scheme manager shall be appointed.

Lord Rodger of Earlsferry: One never knows precisely what line the Labour Party will take on contracting out. However, I do not believe that it is wholly in favour of it. I understood the noble Lord, Lord McIntosh, to say earlier that the Labour Party would be opposed to it.

The words, "if a scheme manager is appointed" allows for the possibility of contracting out. I stress that at present there is no intention to do so. The position taken by the noble Lord, Lord Macaulay—to require a scheme manager to be appointed—would require the Government to proceed on the basis of contracting out, which I suspect that he would not wish to do at present.

Lord Macaulay of Bragar: I was not making a political point but purely a drafting point.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 51:


Page 3, line 43, leave out ("may") and insert ("shall").

The noble Lord said: Amendment No. 51 was grouped yesterday with Amendments Nos. 21 and 35. I did not speak to it. I believe the noble Baroness will agree that I reserved any observations I had on Amendment No. 51 in order to put the argument in its chronological place. Accordingly, with the leave of the Committee, I beg to move Amendment No. 51.

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Baroness Blatch: Again I am baffled by the amendment. I fail to see what useful purpose would be achieved by it. All that it does is to make mandatory rather than discretionary for the scheme to include a particular provision. Making that provision mandatory adds nothing to Parliament's understanding of the Secretary of State's arrangements which have already been set out very clearly in the draft scheme which was published and circulated widely in August. Nor does it provide any additional protection either for the victims or the Government. The amendment shows a misunderstanding of the purpose of the clause concerned, which is to provide an illustration of one way in which the Secretary of State may exercise the power conferred on him by Clause 1. It would not be appropriate to lay down a mandatory requirement for which provision must be included in the scheme for ever more, whether or not it is appropriate.

Again I remind the Committee that Parliament will have the final say over the scheme and will thereby have an opportunity to approve its detailed provisions. As the noble Lord knows, it is also possible for the measure to be amended in future. I hope that the noble Lord will not feel it necessary to press the amendment.

Lord Macaulay of Bragar: I am grateful to the Minister for that reply. I shall read with interest what she said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 52:


Page 4, line 8, at end insert—
("(d) for specified functions in relation to appeals to be conferred on—
(i) claims officers; or
(ii) persons appointed by the Scheme manager as mentioned in section 3(4)(a).").

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 53:


Page 4, line 8, at end insert—
("( ) to ensure that at least one member appointed under paragraph (c) is trained in Scots law").

The noble Lord said: It is a simple amendment. It ensures that the interests of Scots law are preserved within the scheme. It ensures that at least one member appointed under paragraph (c) is trained in Scots law. The scheme is a United Kingdom scheme. We have two different systems of law. It is important that someone trained in Scots law should be part of the team.

As the noble and learned Lord will know, at present fatal cases are dealt with in England by English members of the board; and fatal cases in Scotland are dealt with by Scottish members of the board. The amendment is simple and ensures that that distinction is maintained. I beg to move.


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