Draft Criminal Injuries Compensation (Northern Ireland) Order 2001

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Lady Hermon: I thank the Minister for giving way. There are so many opportunities that I would like to take, but I want to hear what he has to say before I intervene again. On his last point, that is a radical change from the present scheme in which loss of earnings is awarded from the time of the injury. What justification is there for the 28-day delay?

Mr. Browne: That is a very good question, and there is a very good answer. We are making this radical change to the scheme to simplify it. Had we allowed comparatively small claims to be bogged down in the necessity of proof of loss of earnings over 28 weeks, we would have recreated an aspect that is causing much difficulty and delay to the current system. Instead of doing that, we built into the tariff an element for loss of earnings for those 28 weeks. In calculating the tariff, we examined one year's settlement of claims of more than £10,000 and calculated the average settlement. We discovered that it fitted into the range specified in the guidelines that were issued to those who settled claims on behalf of the board. We then aggregated the claims and worked out the element of the aggregate that was attributable to pecuniary loss. It came to 1.85

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per cent., so we added 1.85 per cent. to every claim. Thus, across the board, there was an element in every tariff to represent the 28 weeks.

I understand that that is a tariff-based system. It was not intended to be precise but to be fair, open and transparent. It includes a built-in element, but the amount of work to calculate that part of the total compensation was clearly disproportionate. An enormous amount of paperwork and calculation were required for 1.85 per cent. of the claim. Instead of insisting on all that work and proof, we have said that everyone will get it, thus, we can cut out the first 28 weeks. That seems to be consistent with the tariff-based approach and fair to everyone.

Members of the Committee may be able to come up with another calculation method; I am sure that those who calculate such things could come up with any number of methods. However, I think that that was a fair way to do it, and it allows us to avoid a great deal of difficulty.

Lembit Öpik (Montgomeryshire): On a slightly separate matter, the Minister rightly points out that a tariff-based system will ensure that each individual gets the same amount for a given injury. How will the system factor in the vastly different consequences for individuals with similar injuries and suffering? To allow more variability, should the system not have more flexibility than a tariff-based system offers?

Mr. Browne: The hon. Gentleman leads me to my next point. If there is a disproportionate consequence, the effect on the individual will be measured. If recovery from a serious injury is slow and affects the ability to work for more than 28 weeks, the scheme allows for lost earnings. The calculation for that would be on an individual basis. Similarly, if an injury has a disproportionate effect on the individual's employment prospects, the total award will reflect a loss of earning capacity. In other cases, a mental illness brought on by the effect of an injury might prevent the applicant from returning to their normal employment. That loss, either by way of lost earnings or earning capacity, can be compensated under the terms of the scheme. Therefore, the calculation of the award would reflect the seriousness of the injury and the effect that it has on the applicant's life. That is how civil law calculations are made.

It would be wrong to think that the new arrangements are solely predicated on a tariff. Such arrangements were described in the report of the independent review as a modified tariff if

    ''compensation in the case of more serious injuries and death are (subject to the 28 week rule) assessed on a combination of a tariff and a modified common law approach.''

As a consequence of restructuring the scheme—this time against the advice of the review team—we proposed that the current right of appeal to the courts on quantum or eligibility should be replaced by a right of appeal to an independent criminal injuries compensation appeals panel. Such a move mirrors arrangements in Great Britain that have operated successfully for five years and, although at present

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some 3,000 appeals are decided each year, only 13 per cent.—or 390 cases—receive a full hearing. If my memory serves me correctly, only 109 cases received a full hearing in which the applicant was successful. A significant amount of time, energy, and money is spent on legal advice for applicants for whom the scheme pays, for a minuscule product.

It follows that many cases can be settled without the full panoply of the judicial process, which takes on average over two years. The evidence given to Sir Kenneth Bloomfield overwhelmingly suggests that court appearances increase the trauma for victims. In the light of that evidence, we had a duty to find a system that spared the victim that additional trauma. The consequent reduction in legal costs is an added bonus, as those costs can be used to pay compensation, rather than to pay lawyers. They amount to approximately £5 million out of a total budget of £45 million to £48 million a year.

Lembit Öpik: I press the Minister for further useful clarification. Recourse to the law is taken when an individual believes that he is being unfairly treated by the system. Although the proportion of people in that situation is small, does the Minister accept that many people believe that it is especially important for that small group to have access to legal recourse, without which they do not, in effect, have access to full representation, which they believe is natural justice?

Mr. Browne: I do not think that the hon. Gentleman is arguing that the system that has operated successfully in Great Britain for five years is an affront to natural justice.

Lembit Öpik: I am not saying that.

Mr. Browne: The hon. Gentleman is not saying that, and we are going to introduce the system in Northern Ireland. I do not think that a trip on the ferry from Great Britain to Northern Ireland makes the system here an affront to natural justice over there. The standards of natural justice in Great Britain and Northern Ireland are the same. Unless the operation of the system in this country is an affront to natural justice, there is no reason to believe that the system will be such an affront when it is translated to Northern Ireland. It is clear that the system in Northern Ireland takes a long time, generates a lot of trauma for people who are involved in it, costs £5 million a year, and produces 14,000 cases, 109 of which are decided in favour of the applicant after the full panoply of the judicial process that involves lawyers at all levels, including barristers and solicitors.

I am also a lawyer, as most members of the Committee know. The legal profession has made a significant contribution to the development of the value of claims. The calculation does not need to be made in the context of a criminal injuries compensation scheme. Figures and elements of claims can always be argued about in civil litigation, and that is what has happened over the years. One has fertilised the other, and they continue to do so.

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As a Minister and a lawyer, I have a responsibility to pursue a system that is fair to people and addresses the issues that were revealed by a Government review, transparent, speeds up and increases the payment of compensation to victims and spares them trauma. We should also be able to widen significantly eligibility for the scheme. I am not suggesting that it will be perfect, but no one says that the status quo is perfect. I object to screeds of evidence that misrepresent what is being done and suggest that the scheme was designed to save money, when it was designed to respond to the needs of victims. I object to evidence being dressed up to make that argument seem respectable when it is not.

It is also pertinent that the review recommended the continuance of court involvement for the only reason that in the political climate of Northern Ireland that prevailed at the time of the publication of the report, it was a bridge too far to replace the independence of the judiciary by a body, although independent in function, that was appointed by the Executive. Almost three years later, there is no longer a valid reason to accept that argument and there is much to be said for adopting a process that will bring greater advantage to many victims of criminal violence, mostly, one would hope, as a result of non-terrorist violence.

That overall ease of process has convinced us that there is no longer any real need to include in any part of the scheme payment of legal costs in successful cases. People do not need to hire a solicitor to access social security benefits; we want to make access to compensation equally straightforward. Every year some £7 million of public money pays the legal and other costs of some £40 million in compensation payments. That is a significant amount of money that could be better spent in other ways. The draft proposals therefore do two things. They earmark additional funding for Victim Support Northern Ireland to provide support and assistance to any applicants who want help in accessing the compensation scheme and progressing their application, and they widen the eligibility criteria to allow even more victims to benefit from compensation.

Lady Hermon: I draw the Minister's attention to a criticism highlighted by the Northern Ireland Human Rights Commission which, without criticising Victim Support Northern Ireland itself, drew attention to the fact that the people who work there are

    ''primarily volunteers without specific legal expertise to address what remain complex criteria for an award to be made. The Commission would wish representation and the giving of advice to victims to be given by the legal profession.''

Could the Minister comment on that apparent criticism of the expertise that may be available to Victim Support Northern Ireland?

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Prepared 13 December 2001