House of Commons Hansard Debates for 29 Jun 1995

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The Home Secretary seems just as unpopular when he seeks to give advice as when he is trying to avoid taking it. Yesterday, The Guardian recorded that the Home Secretary's unilateral decision to join the Prime Minister's campaign team

"was not, it was thought, greeted with much joy by the loyalists".

That seems to have something to do with the Home Secretary's response to the manifesto of the right hon. Member for Wokingham (Mr. Redwood). The Home Secretary said:

"it is not rooted in the real world"

and a few minutes later said that the manifesto

"substantially reflects Government policy."

Those statements taken together sum up the state of the Conservative party, but the Home Secretary's colleagues may be forgiven for thinking that his words best describe the right hon. and learned Gentleman's frenetic, ill- judged attempt to cut the cash without proper regard for the victims of violent crime.

The amendment will not guarantee that the Home Secretary or his successor will listen, or that his judgment will improve--but it will at least ensure a statutory advice framework and that the whole system is out in the open. U-turns have been forced on the Home Secretary, which is why the Bill contains some provisions for loss of earnings and care costs arising from violent crime, inadequate though they are.

The fact remains that the Conservative party, on the Home Secretary's own figures, is cutting compensation to the victims of violent crime by £700 million over the next five years. When the right hon. and learned Gentleman is still disregarding advice to such an appalling extent and has ignored the possibility of consensus offered by Labour's clear promise, "If you don't cut the cash, we won't cut the cash," we need a system of independent advice at the heart of the Bill, not just promised verbally in Committee. On Tuesday, the Minister sought to persuade us that we can leave it to him to make sure that an advisory system is implemented according to our principles. Since then, I have seen a letter in which the Minister personally rejected the possibility of receiving expert advice. The Association of Personal Injury Lawyers offered its help and advice. It sought to share its concern with the Minister in good time for him to give prior consideration to its views, instead of having a public debate.

In view of the fact that the last time the Minister ignored the association's advice, he ended up in the House of Lords losing an appeal, one might have thought that the Minister would jump at the chance. But no, the association received a letter dated 19 June from the Minister's assistant private secretary, saying in essence that the Minister was too busy.

The whole point of an adequate system of advice built into the Bill is to ensure that Ministers receive good advice at an early stage and consider it before coming forward with proposals. Hard, half-hearted, half-baked, headline-grabbing obstinacy by a Home Secretary who would not listen has turned criminal injury compensation into a live political issue, when it should be a topic for consensus. Despite the history, we have sought to protect Ministers from their own worst instincts and the consequences of their folly, as we do in this new clause--which the Minister should accept as a positive and helpful

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contribution to the Bill. It would guarantee an independent source of advice when establishing or changing tariff levels or making provision in relation to loss of earnings, special expenses or fatal cases, and in relation to other key aspects of the scheme in clause 3(1).

That is vital, to ensure that changes to the scheme are made on the basis of expert advice and that the Government do not again fall into the trap of making proposals for criminal injury compensation that are opposed by anyone with knowledge of the effect of criminal injuries on victims.

It would have been more impressive when the Minister suggested that people who deal with appeals might also offer advice if there had been anything in the Bill or in the notes on clauses provided by the Minister to suggest that was his intention. I believe that he has given some way, sensibly, under pressure from the Opposition. It would be far better, however, for the changes that we recommended to be included in the Bill so that they become clear or transparent. They should be guaranteed for the future. We should not have to depend on the Minister's interpretation being continued by future Home Office Ministers.

The Minister of State, Home Office (Mr. David Maclean): There were lengthy debates in Committee about the need for an independent body to advise the Secretary of State on tariffs, the other heads of damage and the general running of a compensation scheme for criminal injuries. At first, it was suggested that yet another new body should be set up to fulfil that role. We, the Government, said that that was unnecessary, because there would already be an independent body with the necessary expertise to provide such advice--the appeals panel. We argued that it would be established to consider appeals against awards made by the Criminal Injuries Compensation Authority. We argued also that the panel, with members drawn from the present Criminal Injuries Compensation Board, the medical profession, commerce and industry, the TUC and other organisations, was the ideal body for the purpose. We made it clear that we would expect the panel to offer advice to the Government on any matters relating to the scheme, both when asked for such advice and of its own accord when it felt that matters should be brought to the attention of Ministers. Although it was not necessary, we amended the Bill in Committee to provide that the scheme included provision on the giving of advice by the panel to the Government.

We want the new, enhanced tariff scheme to be user-friendly. It should be flexible and capable of responding quickly to the needs of victims or to wider interests. We do not want a scheme that is hidebound by overly detailed rules and procedures that militate against speedy reactions to needs or demands because of an imposed structure that is overly bureaucratic. We want the panel to be able to operate flexibly. We do not want to restrict its freedom of action by imposing a duty on it to advise the Secretary of State on a range of prescribed issues, especially a duty that, while clear enough about the issues to which it relates, fails to make clear by what circumstances it is triggered.

Exactly when should the panel give its advice? The amendment refers to both formal and informal advice. It is yet another recipe for internal bureaucracy. I am content

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to leave the panel to provide whatever advice it thinks appropriate when it thinks appropriate, without it having to decide whether it is giving it as formal or informal advice.

The new clause would give the panel another duty. It would require it to report any formal advice that it gave to the Secretary of State. Clause 6 already contains a provision about annual reports to the Secretary of State by such persons as he thinks appropriate relating to the discharge of their functions. The report will be laid before Parliament. The scheme will make it clear that the panel will be required to produce an annual report as soon as practicable after the end of each financial year. That will have to cover advice that is given in accordance with the scheme.

The panel will be free to record any other comments that it feels it right to make about the scheme and its operation. There is no need, therefore, for the part of the new clause that requires a report to be made "each calendar year". I am happy for the panel to decide how it wants to give advice to the Government. It is unnecessary to include express provision for that.

I respect the point of view of the hon. Member for Cardiff, South and Penarth (Mr. Michael), as always, but I consider the clause to be unnecessary. We have made it clear that we shall look to the panel as a ready source of expertise and advice on any matters touching on the tariff scheme. We have made it equally clear that the panel is free to give unsolicited advice to the Government if it wants to do so. We have amended the Bill to ensure that the scheme will include provision for panel advice. We shall ensure that the scheme deals adequately with that. The over- prescriptive new clause before us is not necessary for that purpose.

The Government are interested in the contents of a new clause--the hon. Member for Cardiff, South and Penarth and I had an excellent relationship in Committee--to which we shall be coming shortly. We shall not be able to accept the exact wording of that clause, but we are interested in its contents. We may be able to go further with it. I cannot, however, accept new clause 1. If the hon. Gentleman does not withdraw it, I shall have to ask this packed Chamber to reject it.

Mr. Michael: The Minister continues to move in our direction in accepting the nature of advice that should be given. Our concern is that that matter should be in the Bill. The issue will be pressed strongly, not just in this House but in another place. However, as the Minister has at least recognised the importance of the issues that we have raised, and that there should be such a system of independent advice, I beg to ask leave to withdraw the motion. Motion and clause, by leave, withdrawn .

New clause 2

Jurisdiction of the Parliamentary Commissioner for

Administration--

` .--(1) In section 5 of the Parliamentary Commissioner Act 1967 (matters subject to investigation) the following subsection shall be added at the end--

"(8) For the purposes of this section, administrative functions exercisable by--

(a) any Scheme manager appointed by the Secretary of State under the Criminal Injuries Compensation Act 1995;

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(b) any person appointed by the Scheme Manager or the Secretary of State under section 3(4) of that Act; and

shall be taken to be administrative functions of the Home Office."

(2) In Schedule 3 to that Act (matters not subject to investigation), the following paragraph shall be inserted after paragraph 6B--

"6C Action taken by--

(a) a Scheme manager appointed by the Secretary of State under the Criminal Injuries Compensation Act 1995 or any person appointed under section 3(4) of that Act, so far as that action constitutes a decision taken in respect of a claim for compensation; and (b) action taken by any person appointed under section 5(3)(c) of that Act, so far as that action is taken at the direction, or on the authority (whether express or implied), of an adjudicator appointed under section 5 of that Act.".'.-- [Mr. Michael.]

Brought up, and read the First time.

Mr. Michael: I beg to move, That the clause be read a Second time.

New clause 2 seeks to establish something extremely

important--accountability and proper scrutiny for the administration of the criminal injuries compensation scheme. The Bill seems to be specifically designed to exclude from the jurisdiction of the Parliamentary Commissioner for Administration, the ombudsman, the actions of the administrative staff involved in running the scheme. I pay tribute to my hon. Friend the Member for Lewisham, East (Mrs. Prentice), who first raised the issue in Committee and has brought to the attention of many of us who were concerned about accountability and transparency under the new scheme the importance of ensuring that the ombudsman's jurisdiction does run.

In Committee, we debated the provision which states that those appointed for the purpose of administering the provisions of the scheme which relate to the appeal system should

"not be regarded as having been appointed to exercise functions of"

or on behalf of

"the Secretary of State".

The Opposition said that it seemed likely that that exclusion would be dangerous, and would go way beyond the Minister's intentions. The Minister said that his only intention in those words was to avoid interference by Ministers in the operation of the scheme with regard to individual cases.

It is right that Ministers should not interfere in individual cases, and that an assessment of the circumstances of a case should be made by those dealing with it administratively and by adjudicators dealing with appeals without interference from the Minister. But, as we said in Committee, why was that form of words used? Why not use a form of words that has been tried and tested? The Minister was unable to give any justification, but he said that that was the limit of his intention.

When the Bill is examined more closely, it is seen that the words have the effect, whether intended or otherwise, of excluding the administration of the scheme from the jurisdiction of the parliamentary ombudsman. In Committee, the Minister gave no suggestion that that was his intention. I am sure that he would have explained to us any such intention. Therefore, I am not suggesting that he, individually and personally, intended the words to

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have the effect that I suggest they will have. But unless new clause 2 or something similar is included in the Bill, the operation of the scheme will be excluded from the ombudsman's scrutiny. Therefore, I urge the Minister to accept the new clause. I know that my hon. Friend the Member for Lewisham, East also wishes to refer to the important arguments in support of the new clause.

Mrs. Bridget Prentice (Lewisham, East): I support new clause 2, which extends the powers of the Parliamentary Commissioner for Administration to this area of government. As a member of the Select Committee on the Parliamentary Commissioner for Administration, I am only too well aware of the extensive work done by the ombudsman and his team. I think that I speak on behalf of the Committee when I say that we have a most outstanding ombudsman in Mr. William Reid, and we should recognise him as such.

Last year, when the Select Committee investigated the powers, work and jurisdiction of the ombudsman, we said in our report that one of the indications of the success of that office was the fact that further ombudsmen have been established to bring the advantages of an independent and impartial investigator of complaints into other areas of public life. We went on to say that an added testimony to the office's achievements has been the gradual extension of the ombudsman's jurisdiction to more branches of the Executive. The Courts and Legal Services Act 1990 is a case in point --the administrative actions of court and tribunal staff appointed by the Lord Chancellor now come within the ombudsman's jurisdiction. Only last year, the hon. Member for Winchester (Mr. Malone), who is now the Minister for Health, successfully piloted, with all-party support, a private Member's Bill that extended the ombudsman's jurisdiction to other tribunals.

4.15 pm

It is important to state clearly what the ombudsman's role is. He investigates complaints from people who contend that they have prima facie evidence of maladministration leading to hardship or injustice. Our system still has what is called the MPs' filter; in other words, such complaints can be made only through Members of Parliament. Another of our recommendations was that the Parliamentary Commissioner Act 1967 should be amended to specify exclusions rather than inclusions to the commissioner's jurisdiction. In the Government's reply to our report, it is fair to say that they were not in principle opposed to that recommendation, but were concerned about whether primary legislation would be necessary to achieve it. Had that proposal been implemented, there would be no need for new clause 2.

On that basis, I cannot understand how the Government could not support this change to the 1967 Act, so that the Government's essential support for the principle would be established while we awaited the appropriate primary legislation.

I shall discuss the effects of the new clause on criminal injury compensation. The legislation, as my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) pointed out, has many flaws, but we should ensure that, when things go wrong and there is maladministration, there is a well-established system to deal with it.

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Let me give an example. If I had been injured and made a claim under the new scheme, the scheme manager might say that I had no claim. I may have been unco-operative with the police or sustained the injury in a way that was not a direct result of criminal activity. Once the scheme manager has made that assessment and denied me the claim, I have the right to appeal. That is fine. If the appeals board examines the claim carefully and decides that the scheme manager was correct in his or her assessment, so be it: I would have exhausted all proper means at my disposal and would have to accept that conclusion.

However, what happens if the scheme manager loses the papers pertaining to my case or there are unreasonable delays in dealing with it, with the result that I subsequently lose financially? For example, newsagents who are attacked might have to employ someone to look after their businesses while they seek compensation. In such a case, the newsagent may well receive compensation eventually, but what redress does he have for the poor administration? Even if he were not to get compensation in the end, should he not have some recourse for the way in which the case was handled?

Constituents do not take cases to the ombudsman because they think that they are going to become millionaires overnight; far from it. Very often, they simply want an apology for the way in which their cases were handled and an assurance that changes will be made so that other people do not have to suffer in a similar way.

I began by commenting on the extension of the ombudsman's jurisdiction and the success of that office in seeking redress for injustice. I mentioned the Courts and Legal Services Act 1990, on which new clause 2 is based. Our concern is that the Bill as it stands appears deliberately to take the staff who administer the scheme outside the jurisdiction of the ombudsman. That cannot be right, and it flies in the face of everything that the Government have said about open government. It seems to be contrary to the position they took when they supported the hon. Member for Winchester's Bill last year.

If the Minister of State does not feel able to accept the new clause, he has to answer this question: to whom are the staff of the scheme answerable for any act of maladministration leading to injustice? I remind him, as I did in Committee, that the explanatory and financial memorandum to the Bill refers to these staff as civil servants, so they ought to be responsible to someone.

We need to be clear that, in the interests of justice for the individual and good government for all, any maladministration will be investigated independently by the one person in whom Parliament has vested such responsibility--the ombudsman. For that reason, I commend the new clause to the House.

Mr. Maclean: I can well understand the intention behind the new clause. It no doubt seeks to achieve high standards in the administration of the new scheme by making the administrative actions--actions other than the actual determination of awards, for which other provision will be made in the scheme--of those running it subject to the jurisdiction of the Parliamentary Commissioner for Administration, more commonly known as the ombudsman.

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I make it quite clear that it is our firm intention that the new scheme should be run as effectively and efficiently as possible, and mechanisms will be built in to facilitate that. For example, the authority will be required to set standards of performance and targets, and will have to report on how it has measured up to them in its annual report. There will also be a fully developed and effective complaints procedure, enabling those who feel that their cases have not been well handled to make a formal complaint in the sure expectation that it will be speedily and properly considered, and that, where appropriate, redress will be made.

I accept, however, that there may be an argument for saying that such provisions do not go far enough, and that applicants who believe that their case has been subject to maladministration should have some means of seeking external reassurance. That is, of course, the role of the Parliamentary Commissioner for Administration in other contexts, and hon. Members have therefore, reasonably enough, looked to the ombudsman in this instance.

The fact is, however, that the administration of the scheme does not currently fall within the jurisdiction of the ombudsman. To give him such jurisdiction would therefore be a significant step, and one that should not be taken without prior discussion with him and other interested parties.

Mrs. Bridget Prentice: I am grateful to the Minister for allowing me to intervene on the issue of discussions with the Parliamentary Commissioner for Administration. The commissioner raised the matter when he saw the Bill in draft form, because he was extremely concerned about the fact that he will not have jurisdiction in this sphere.

Mr. Maclean: I am well aware of that. I was merely suggesting that, before we lobbed all sorts of things at the commissioner, we would need to have detailed discussions to work out the whys and wherefores and where the boundaries are. If the hon. Lady will permit me to continue, she may not be disappointed by what I have to say. We would also need to consider carefully with the commissioner the resource and other implications of such a change, and to think very carefully about what might be, and what might not be, within his remit. I am sure that we are all aware of constituents who complain persistently, and perhaps unreasonably, and who demand referral of their case to the ombudsman, no matter how carefully their complaint or grievance--whether real or imaginary--has previously been handled, and no matter how many other appeal tribunals they have been through.

We must not lose sight of the fact that about one third of the 60, 000 or 70,000 people who apply for compensation each year are, quite properly, turned down on grounds of eligibility, because they provoked the assault or for some other good reason. Inevitably, a number of those claimants will feel aggrieved, even after they have exhausted the scheme's extensive appeals process. If they then feel that they can try yet another tack-- perhaps complaining to their Member of Parliament and, through their Member of Parliament, to the ombudsman that their case was rejected, not for perfectly proper reasons but because of some alleged maladministration-- they may well do so. That could clog the system with bogus claims, which would create a substantial extra burden, first, for the ombudsman himself,

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and secondly, for the scheme's administrators, who would have to demonstrate that the real issue was one not of maladministration but of technical eligibility.

Thus, while on the one hand, I can see a need for workable and transparent checks and balances, I can also see a potential danger that such mechanisms --unless they were carefully defined--could be open to abuse. That would create a lot of nugatory work for everyone. That is why I say that we must think carefully about it and consider all the implications.

None the less, I can assure the House that, having listened to the arguments put forward and having heard other views, including those of the Parliamentary Commissioner for Administration, we have decided that we must consider those views carefully and discuss them with him and others to see if that is a sensible route down which we should go.

In the meantime, it may not surprise the Opposition when I say that I cannot accept the technical terms of the amendment, which is technically flawed. That is not an accusation aimed at the Opposition. The hon. Member for Cardiff, South and Penarth (Mr. Michael) will rightly say that he does not have the resources and facilities that I have to ensure that amendments are legally and technically correct. I shall not go into the reasons why it is technically flawed, but I repeat my assurance to the House that we shall consider it carefully.

There may be merit in considering the parts of the scheme that in other Departments would come within the scope of the Parliamentary Commissioner for Administration to find out whether it would be possible to draw clear boundaries between matters that are the responsibility of the Secretary of State--the overall administration of the scheme, for example--and those that are not, and how one could clearly ring-fence other matters, such as decisions on individual claims, in which the Secretary of State would not be involved. I hope that, on the basis that we shall carefully consider the idea with a positive attitude, the hon. Members for Lewisham, East (Mrs. Prentice) and for Cardiff, South and Penarth will feel reassured and will not wish to press the new clause.

Mr. Michael: Of course I am pleased that the Minister has accepted that what we seek to do in the new clause is right. I am pleased that he has promised to consider it. But that does not go far enough. He has not promised to accept the principle that the ombudsman should have jurisdiction over the criminal injuries compensation scheme, or the necessity of building it into the Bill.

The Minister says that our new clause is flawed. That is curious, because we used the wording of the Courts and Legal Services Act 1990. If the new clause is deficient, there must be deficiencies in the Act that the Minister appears not to have identified. In any event, the right hon. Gentleman has acknowledged that we do not have the expertise of Ministries and parliamentary draftsmen--but may I point out to him that after today's debate there will be a Second Reading debate in the House of Lords, and also opportunities in Committee in the House of Lords for two days in October? There will then be a Report stage in November. Moreover, amendments are still acceptable on Third Reading in the House of Lords, so there are plenty of opportunities for the Home Secretary or his representative in another place to fine-tune what we have

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proposed or to introduce changes, provided that that is accepted by those who will take part in the debates in another place. There is therefore no reason why the Minister should not accept our new clause today, put the principle into the Bill and deal with any adjustments needed at a later stage. We want the ombudsman to have jurisdiction over the criminal injuries compensation scheme. So do the public, and so does the ombudsman. The new clause should be added to the Bill now, and if the Minister does not accept that, we shall divide the House.

Question put, That the clause be read a Second time:--

The House divided: Ayes 183, Noes 248.

Division No. 185] [4.27 pm

AYES

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Abbott, Ms Diane

Adams, Mrs Irene

Ainger, Nick

Anderson, Donald (Swansea E)

Armstrong, Hilary

Ashton, Joe

Austin-Walker, John

Barnes, Harry

Battle, John

Bayley, Hugh

Beggs, Roy

Bell, Stuart

Bennett, Andrew F

Betts, Clive

Blair, Rt Hon Tony

Bray, Dr Jeremy

Brown, Gordon (Dunfermline E)

Brown, N (N'c'tle upon Tyne E)

Burden, Richard

Byers, Stephen

Caborn, Richard

Callaghan, Jim

Campbell, Mrs Anne (C'bridge)

Campbell, Menzies (Fife NE)

Campbell, Ronnie (Blyth V)

Cann, Jamie

Carlile, Alexander (Montgomery)

Church, Judith

Clarke, Eric (Midlothian)

Clarke, Tom (Monklands W)

Clelland, David

Clwyd, Mrs Ann

Coffey, Ann

Cohen, Harry

Connarty, Michael

Cook, Frank (Stockton N)

Cook, Robin (Livingston)

Corbett, Robin

Cousins, Jim

Cunningham, Rt Hon Dr John

Dewar, Donald

Dixon, Don

Dobson, Frank

Donohoe, Brian H

Dowd, Jim

Dunwoody, Mrs Gwyneth

Eagle, Ms Angela

Eastham, Ken

Etherington, Bill

Evans, John (St Helens N)

Fatchett, Derek

Faulds, Andrew

Flynn, Paul

Forsythe, Clifford (S Antrim)

Foster, Rt Hon Derek

Foster, Don (Bath)

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