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Lord Archer of Sandwell: My Lords, I am grateful to the noble Baroness for giving way. Perhaps I may spare her the effort of reading that out because I have already said that that is a mistake and that we do not propose to move that amendment.

Baroness Blatch: My Lords, I am grateful for that. I would also like to say something about the last amendment, which touches on parliamentary control of the scheme. I again remind the House that the amendments we made in Committee changed significantly the degree of control that Parliament will have over the new scheme, and that has been properly recognised. First, Parliament will now have to approve the complete scheme before it can come into force. Then, if change becomes necessary or desirable subsequently, Parliament will have to approve any change whatever. The more important or key features of the scheme will require approval by the affirmative resolution procedure, while, as noble Lords know, all other features will be subject to the negative resolution procedure. The executive will no longer have any power to change any aspect of the scheme, however minor, without securing Parliament's approval in this way.

When the noble and learned Lord introduced these amendments, he constantly referred to the executive being almost a free spirit out there, making decisions one way or another. The executive can act only in relation to a scheme properly approved by Parliament and any change whatever, however minor or major, will also be subject to parliamentary approval.

It is of course a matter of judgment as to which features of the scheme should require approval by the affirmative resolution procedure and which by the

31 Oct 1995 : Column 1362

negative. Clearly, Parliament ought not to be overburdened by minor points of detail. We have accordingly made a judgment as to what might reasonably be regarded as the so-called key features of the scheme. These are set out in Clause 11(3). In the main, they relate to the tariff itself and to matters bearing on quantum.

The last of this group of amendments would bring matters relating to appeals procedure and the status of the appeals body within the ambit of subsection (3). In practice, this would bring more or less the entirety of that part of the scheme which deals with appeals within the subsections. We are not convinced that the entire appeals function needs to be singled out for special consideration in this way. In our view this amendment is unnecessary and over-prescriptive. We suspect that the main matters relating to appeals are likely to be no more than minor points of detail, and we would accordingly be reluctant to require Parliament to have to approve them by affirmative resolution. Therefore, we believe that the negative resolution procedure provides quite adequate parliamentary control over this and the other non-key features of the scheme.

What is a legitimate debate is what should be a key or non-key feature of the scheme. But as regards all the other amendments, I hope that they will not be pressed.

Lord Archer of Sandwell: My Lords, that again is a disappointing reply. I suspect that the noble Baroness drew aside the curtain and allowed us to see into the Government's mind for an instant when she said that the Bill is essentially enabling legislation. We knew that. We knew that that was the essence of the Bill and that the Government were asking Parliament to say that the Government shall do substantially as they like as regards criminal injuries compensation. That was a fairly frank admission.

Baroness Blatch: My Lords, I am grateful to the noble and learned Lord for giving way. I have not pulled any curtain back or hid behind any curtain in the course of these debates. There is no secret whatsoever that the Bill is mainly an enabling piece of legislation. Indeed, we have gone out of our way to express why it is that the scheme is to be subject to the negative and affirmative resolution in order to afford the flexibility, transparency and speed with which one may need to respond at some time in the future.

There is nothing devious or malign in the thinking of either myself as a Minister in the department or the department itself. One either accepts that or one does not. We either go for very complicated primary legislation with everything on the face of the Bill or we have the distinction between enabling legislation and the scheme. But there is no way in which any government, any Minister or any part of the Criminal Injuries Compensation Authority or the appellate system can operate outside of the scheme, which is properly approved in the first place by Parliament. Subsequently, any change, however minor or major, is also approved by Parliament. That is not government acting deviously in any way whatsoever.

Lord Archer of Sandwell: My Lords, the word "devious" was not my word—it came from the noble

31 Oct 1995 : Column 1363

Baroness—and neither does it represent what I ever suggested. What I do suggest is that we are in danger of galloping again over the course which we have been over on some three occasions as to whether the merits of flexibility extend to a scheme which virtually invites Parliament to write a blank cheque. The noble Baroness shakes her head: we have been over this before. We know that blank cheques are more flexible than cheques by which we limit what we are agreeing to. I do not propose to repeat those arguments because we have been over them before.

The noble Baroness is now emphasising, in a way which she has not done previously, that the Bill is essentially and substantially enabling legislation. She went on to say that where we differ is that the scheme is the right place for the appeals procedure. That is indeed where we differ. We believe that even enabling legislation—whatever label one gives it—should have some matters which are essentially matters for primary legislation. We are saying that one of those matters is the establishment, the empowerment, of judicial procedures. As I have said, that seems to be the view even of this Government in most of the legislation that we have seen in the past few years.

The noble Baroness asked why we should change the wording of Clause 5 which already says that there shall be a scheme and that the scheme shall provide for an appeal. There is a distinction between saying, "There shall be an appeal", and saying, "The Secretary of State shall make a scheme in which he provides for an appeal". If the noble Baroness does not see that distinction, I am not sure that we can take the argument very much further. One can either see what is before one's eyes or one cannot.

On Amendment No. 27, I agree that the difference is between having the positive resolution procedure and the negative procedure. The noble Baroness was not born yesterday and she knows that there is a very important different procedurally. With negative resolutions, one is in the hands of the government business managers; with positive procedures, the Government have to provide the time. That is a very important distinction. At the moment the effect of the Bill as drafted is that changes in the scheme, including changes relating to the appeals procedure, can be made simply by negative resolution. If the noble Baroness does not agree with us on the other distinction that we are making, we would invite your Lordships to say that at the very least the appeals procedure ought to be in that part of the Bill which requires an affirmative resolution.

Baroness Blatch: My Lords, I am happy to respond, although not definitively at this stage. I know the strength of feeling with which the noble and learned Lord is arguing about what should come under the affirmative resolution procedure and what should come under the negative resolution procedure. I wonder

31 Oct 1995 : Column 1364

whether he will allow me to take this away, to consider what has been said during this exchange and to report back by the next stage.

Lord Archer of Sandwell: My Lords, the noble Baroness cannot say fairer than that in relation to Amendment No. 27, and after a rapid consultation with my noble friend Lord McIntosh, I can assure her that we shall not be inviting the House to divide on Amendment No. 27.

However, that does not address the essential argument that we are advancing in relation to the other amendments in this group. We had hoped for a more forthcoming reply, but I think that we have made at least an advance and that the noble Baroness appreciates what we are seeking to argue. However, it appears that, having appreciated it, the Government reject it. In those circumstances, the appropriate course is to invite the opinion of the House.

4.3 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 96; Not-Contents, 147.

Division No. 2

CONTENTS

Ackner, L.
Addington, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Barnett, L.
Bath, M.
Beaumont of Whitley, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Darcy (de Knayth), B.
David, B.
Dean of Beswick, L.
Desai, L.
Diamond, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Erroll, E.
Ezra, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Glenamara, L.
Graham of Edmonton, L. [Teller.]
Gregson, L.
Hanworth, V.
Harris of Greenwich, L.
Haskel, L. [Teller.]
Headfort, M.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Howie of Troon, L.
Hughes, L.
Hylton, L.
Ilchester, E.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Kintore, E.
Kirkhill, L.
Lawrence, L.
Lockwood, B.
Macaulay of Bragar, L.
McGregor of Durris, L.
McIntosh of Haringey, L.
Mackie of Benshie, L.
McNair, L.
Mason of Barnsley, L.
Mayhew, L.
Monkswell, L.
Morris of Castle Morris, L.
Nelson, E.
Nicol, B.
Ogmore, L.
Prys-Davies, L.
Richard, L.
Ritchie of Dundee, L.
Robson of Kiddington, B.
Rochester, L.
Sainsbury, L.
St. John of Bletso, L.
Seear, B.
Sefton of Garston, L.
Serota, B.
Shannon, E.
Simon, V.
Simon of Glaisdale, L.
Stallard, L.
Stoddart of Swindon, L.
Strabolgi, L.
Strafford, E.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tordoff, L.
Turner of Camden, B.
Varley, L.
Wallace of Coslany, L.
Wharton, B.
White, B.
Wigoder, L.
Williams of Elvel, L.
Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.
Addison, V.
Ailsa, M.
Alexander of Tunis, E.
Alport, L.
Archer of Weston-Super-Mare, L.
Astor of Hever, L.
Barber of Tewkesbury, L.
Belhaven and Stenton, L.
Beloff, L.
Blake, L.
Blatch, B.
Boardman, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Brookeborough, V.
Bruntisfield, L.
Burton, L.
Butterworth, L.
Cadman, L.
Caldecote, V.
Campbell of Alloway, L.
Campbell of Croy, L.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Charteris of Amisfield, L.
Chesham, L. [Teller.]
Clanwilliam, E.
Colnbrook, L.
Constantine of Stanmore, L.
Cornwallis, L.
Courtown, E.
Cox, B.
Cross, V.
Cuckney, L.
Cumberlege, B.
Davidson, V.
De L'Isle, V.
Dean of Harptree, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Downshire, M.
Dundee, E.
Eccles, V.
Eden of Winton, L.
Elibank, L.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erne, E.
Fanshawe of Richmond, L.
Ferrers, E.
Foley, L.
Gainford, L.
Geddes, L.
Goold, L.
Goschen, V.
Gray of Contin, L.
Grimston of Westbury, L.
Hailsham of Saint Marylebone, L.
Harding of Petherton, L.
Harmar-Nicholls, L.
Harmsworth, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Holderness, L.
HolmPatrick, L.
Hood, V.
Hooper, B.
Hothfield, L.
Howe, E.
Huntly, M.
Hylton-Foster, B.
Inglewood, L.
Ironside, L.
Kimball, L.
Kinnoull, E.
Knollys, V.
Lane of Horsell, L.
Lauderdale, E.
Liverpool, E.
Long, V.
Lucas, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Manchester, D.
Marlesford, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monk Bretton, L.
Montgomery of Alamein, V.
Morton, E.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Munster, E.
Norrie, L.
Northesk, E.
O'Cathain, B.
Oppenheim-Barnes, B.
Orr-Ewing, L.
Oxfuird, V.
Palmer, L.
Pearson of Rannoch, L.
Pender, L.
Peyton of Yeovil, L.
Prentice, L.
Radnor, E.
Rankeillour, L.
Rawlings, B.
Rawlinson of Ewell, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Renwick, L.
Rippon of Hexham, L.
Rodger of Earlsferry, L.
Romney, E.
St. Davids, V.
Sandford, L.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Stanley of Alderley, L.
Stodart of Leaston, L.
Stokes, L.
Strathcarron, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Swinfen, L.
Terrington, L.
Thomas of Gwydir, L.
Torphichen, L.
Tugendhat, L.
Vaux of Harrowden, L.
Vivian, L.
Westbury, L.
Whitelaw, V.
Wise, L.
Wyatt of Weeford, L.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

31 Oct 1995 : Column 1366

4.11 p.m.

[Amendment No. 3 not moved.]

Clause 2 [Basis on which compensation is to be calculated]:


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