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Page 1, line 23, at end insert—
(""the Panel" means the Criminal Injuries Compensation Appeals Panel under section 5(1)(b)").

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The noble and learned Lord said: My Lords, with this group of amendments we return to a subject which your Lordships discussed in Committee. I say at once that we ended that debate on a note of profound disappointment, not because the Government rejected our argument, but because they had not grasped what it was. The reply of the noble Baroness simply did not engage with the point we were making. There are two ways of expressing that: that the noble Baroness and her advisers failed to understand what I was saying, or that I failed to make myself clear. If it will help, I readily accept the second formulation and hope that this debate will prove to be a new beginning.

Perhaps I may again declare my interest. This is a matter of deep concern to the Council on Tribunals, which I am privileged to chair. It was not initially my intention to argue it on behalf of my party but, first, my party supports the principle that is involved so that I have very little choice in the matter; and, secondly, circumstances have dictated that I speak from this Bench.

Because we and the Government never joined issue in Committee we did not then seek the opinion of the House. Perhaps I may first distinguish what is at issue in this group of amendments from a wider principle on which the House did divide. I believe that the whole Bill is deeply flawed because it fails to maintain the distinction between matters appropriate to the legislature and those appropriate to the executive. If the Government have a proposal to make which entails a change in the law, they make it to the legislature, which, if it is persuaded, legislates accordingly. That distinction becomes blurred if the Government invite the legislature in effect to say, "The executive is hereby authorised to take whatever action it likes". That is not legislating vaguely; it is not legislating at all.

Of course it is usual to leave matters of detail to be dealt with by subordinate legislation. That raises the question: what is a matter of detail? I sought to argue on Second Reading and again in Committee that, for example, in a Bill entitled the Criminal Injuries Compensation Bill the definition of a criminal injury could not by any criterion be a matter of detail. On that issue your Lordships disagreed with us, and I do not seek today to reopen that question. The issue which we are now debating raises an even more fundamental constitutional principle.

It is a major premise of constitutional theory that there are three institutions of government: the executive, the legislature and the judiciary. Judicial institutions and judicial processes should be established and empowered by the legislature. They ought not to depend for their power on the executive because they are watchdogs of the executive. It follows that any institutions and processes concerned with rights of appeal should be enshrined in primary legislation and not in subordinate legislation at the discretion of the executive. Both at Second Reading and in Committee I quoted from the annual report of the Council on Tribunals for 1992-93. I shall not weary your Lordships by citing that passage today but it sets out why it is wrong and, fortunately, most unusual to leave the establishment of an appeal process to secondary legislation. Yet Clause 4 of the Bill

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leaves the scheme, not the Bill, to establish a review process to reconsider decisions of the claims officers. Clause 5 leaves appeals from that process to be established by the scheme.

In Committee I indicated that the argument is much stronger when applied to appeals than when applied to review. The Government rejected our amendment in Committee in relation to review, but the noble Baroness did not seek to distinguish for that purpose between review and appeals. Indeed, the noble and learned Lord the Lord Advocate was kind enough to confirm that they were not seeking to make that distinction. Today, we have not sought to resurrect the argument in relation to review. We regard appeals as very much more important in this context, and it is to the appeal process that these amendments relate.

The purpose of Amendment No. 15 is simply to establish the appeal process in the Bill so that its authority derives directly from the legislature and not from or through the executive. We would have liked to have seen the principal provisions relating to appeals set out in the Bill and not left to the discretion of the Secretary of State. But I say frankly that drafting an amendment for that purpose would be difficult, given the drafting scheme of this Bill. It was our attempt to do that which created the confusion which manifested itself in Committee.

Only one provision relating to the way the appeal shall be dealt with do we seek to bring within the Bill, although the noble and learned Lord, Lord Ackner, seeks to do that in relation to another provision later in our proceedings. The scheme, in paragraphs 52 to 60, provides for a panel of adjudicators rather than merely for individual adjudicators who are referred to in the Bill. We have no quarrel with that. Indeed, we approve of it, since it enables provision to be made as to how many adjudicators should sit on any given category of appeals. The noble Lord, Lord Carlisle, is to take advantage of that arrangement for one of his amendments at a later stage. It also enables provision to be made for a chairman of adjudicators. Our Amendments Nos. 2 and 16 seek to ground the authority of the panel within the Bill. So, again, we are not seeking to do something which is different from what the Government envisage. We are saying that those powers should be in the Bill and not in subordinate legislation.

There is a further issue which at present exacerbates the problem. Clause 11 sets out those ongoing matters on which the Secretary of State will require a parliamentary mandate to make changes. We find no mention of appeals. Not only are they left to the discretion of the executive; there is not even a requirement that, after initially approving the scheme, Parliament should be involved. Even if the Government, for whatever reason, resist our other amendments, surely changes relating to appeals should be among the list of matters in Clause 11(3) for which parliamentary approval is required. That is the purpose of our Amendment No. 27.

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There is one other amendment about which I shall make a comment. Amendment No. 17 was intended to say that arrangements for making appointments of adjudicators should be made with the approval of Parliament. That is not what our amendment says. It says that parliamentary approval should be required for each individual appointment. That is not what we intended to say and we do not propose to move that amendment.

I hope that this time I have succeeded in making clear to the noble Baroness and her advisers what is troubling us and why we attach such importance to these amendments. In Committee the noble and learned Lord, Lord Simon, expressed anxiety at the way in which over the past decade there has been an attenuation of parliamentary control over legislation. When the subject matter relates to a judicial process, that anxiety is exacerbated. I do not believe that the noble Baroness and her colleagues are plotting to drive a cart and horses through the traditional safeguards of the constitution any more than my noble friend Lord McIntosh. That is perhaps what is so worrying. There is a danger that the Government are doing that not because they want to destroy the constitution but because they fail to notice that it is there. I beg to move.

Lord Carlisle of Bucklow: My Lords, in answer to the last debate, as I understand it, my noble friend the Minister claimed that one of the reasons why the Bill was drafted in its present form is that that part of the authority's work could be market tested and, if necessary, presumably put out to tender. As she knows, she did not persuade me with that view during her speech on that occasion. In the course of her speech she said that she of course made a total distinction between the scheme and the appeals procedure. She said that, whatever happened to the rest of the scheme, the appeals procedure, being a quasi-judicial matter, was clearly one that should remain within the control of Parliament. That being so, I am not quite sure what is the objection to the amendment moved by the noble and learned Lord, Lord Archer of Sandwell.

Baroness Blatch: My Lords, I am grateful to my noble friend for that intervention. I also have to confess that I am confused by some of the arguments used by the noble and learned Lord in this matter. On the face of it, the amendments seem to achieve nothing more than is already achieved by Clause 5, which makes it quite clear that the scheme must include rights of appeal against decisions taken on review under the provisions of the scheme made by virtue of Section 4—not, incidentally, as these amendments would suggest, under Section 4.

Perhaps I may take this opportunity to emphasise that the scheme will give applicants a right of appeal against all decisions taken on review. Under Clause 5(1)(a) it would not be open to the Secretary of State to make provision in the scheme for rights of appeal only against particular types of decisions taken on review. The subsection does not allow him to specify particular circumstances in which an appeal will be available.

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I therefore see no need at all to change the present wording of the Bill which is quite express and includes adequate safeguards for an independent appeals system against any review decision. We ought not to forget in this connection that the Bill is essentially enabling legislation which, while very carefully defining the parameters of the tariff scheme, leaves the detail to be set out in the scheme itself; and, as your Lordships will have seen from the draft scheme which we circulated in August, it is a very detailed scheme. Little of that detail is included on the face of the Bill, and quite rightly in my view, since that would have made for very complex primary legislation which was not readily susceptible to refinement to meet changing needs and circumstances. The right place for the detail about the tariff, loss of earnings calculations and special care calculations etc. is the scheme. It is also the right place for the detail about the appeals provisions. I am afraid that I therefore see no need to be overly prescriptive about those provisions on the face of the Bill. The scheme quite clearly sets out what the appeal provisions will be and I believe provides more than enough safeguards for victims.

I have other difficulties with these amendments. I am not sure what is meant by requiring the Secretary of State to appoint the panel with the consent of Parliament. What is that to mean in practice? Does he have to seek Parliament's specific approval as to the precise terms of reference?


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