Draft Criminal Injuries Compensation Scheme 2008

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Maria Eagle: I wonder if the hon. Gentleman recalls—he is skipping over it—the 1996 legislation that his Government brought in, which took the scheme away from being based on the way of the civil courts. Does he repudiate that now?
Mr. Burrowes: No, I do not. I was talking about the genesis, the beginning, where it came from—
Maria Eagle: That sounds like “Doctor Who”.
Mr. Burrowes: The Minister has been watching too much TV. I will happily spend a few minutes talking about “Doctor Who”, but we need to get away from time lords and different time zones and into reality. It is victims groups that are concerned about the issue, and it needs to be addressed carefully. We need to see what response the Government receive to ensure that they have properly and carefully considered not to make changes to firm-up the part of clause 13 that effectively means that unless there are exceptional circumstances an award would be reduced or disallowed if an applicant had unspent criminal convictions. Plainly, if those convictions are connected to the incident involved, that is a different situation, although one appreciates the difference between a statutory basis and a non-statutory basis. Nevertheless, there are important principles relating to this area, in terms of contributory negligence. Victims groups are concerned, which is why that matter needs to be properly addressed by the Minister. She must justify why the Government wish to firm up the position, rather than, as some groups have suggested, making a presumption in favour of an award, disregarding previous convictions, and rather than its being disregarded except in exceptional circumstances.
The fourth area relates to what the Minister mentioned when introducing the scheme: whether the relevant provision should apply to overseas injuries, particularly those that have come into prominence in relation to terrorist attacks. There is concern about British citizens who are injured abroad, particularly in terrorist attacks, when a terrorist attacks not only that individual, who is injured, but the state, affecting the freedom of us all. There is a shared responsibility in relation to those victims. A global compensation scheme is both costly and, in many ways, unworkable. However, have the Government looked at and are they addressing alternatives, such as steps to ensure that victims and bereaved families are receiving adequate support in respect of processing any compensation applications in the domestic or international courts? Are the Government assisting in that regard?
The other point that was mentioned in the 2005 document was that the Government were considering a national disaster charitable fund. Has there been any progress on that?
The Stone report on 7/7, released in November 2007, immediately comes to mind. Are the recommendations of that report being followed? The recommendations largely relate to information about the following: staff being informed about circumstances; the preparation and use of experts; adequate training and support to address the responses that individuals might demonstrate and the likely effects on them; a corporate attitude; ensuring that staff treat applicants as being entitled to an award and eligible until proven otherwise; adapting guidance papers as appropriate; joining up with other organisations that are part of the recovery process; and ensuring that applications benefit from economies of scale.
Barry Gardiner (Brent, North) (Lab): I have listened to what the hon. Gentleman has said. I do not think that any Committee member would doubt the extensive tour de table that shows the research that he has engaged in. However, I have not heard him mention a single proposal that would amend what we are dealing with today. Does he have substantively different proposals to offer?
Mr. Burrowes: As the hon. Gentleman knows, Committee members have no power to amend the draft scheme that we are presented with; we have to proceed on the basis on which the Government are proceeding and either oppose it or approve it. It is important to hold the Government to account on the basis of their terms of reference, which were made in relation to the 2005 Act. It is important to see whether they have taken account of the Stone report, to see if that required any additional variations or amendments to be made to the current scheme.
The 2005 document, and previous documents and rhetoric from the Government, make a lot of play about the victims surcharge and how that has dealt non-financially with the concerns about compensation to support victims groups. The Minister will be aware of the shortfall in relation to the victims surcharge: the expectation of £16 million for a fully operational year and a total of some £3,783,191. However, there was a commitment that arrangements would be made to fund victims services and that those would be made good from the Ministry of Justice vote. Although this is tangential in respect of the scheme, it is part of ensuring that we do not treat the scheme, as the Minister said, as if it were in a vacuum, and is about ensuring that we consider how the Government are supporting victims groups through victims surcharge receipts. We must also look at how and whether the Government will hold good to their commitments, and how they will make up the shortfall. There is concern about divvying up the £16 million that is expected to come through the surcharge. Some £250,000 has been allocated to victims of homicides, but bereaved families are concerned that that is a limited amount and that more should come to them.
Another area of concern, which the Government have sought to make some play of, is making offenders pay wherever possible. The idea is that they should pay back what has been paid out by the state through Criminal Injuries Compensation Authority payments. How much has been gained from orders under the Domestic Violence, Crime and Victims Act 2004, and how much is that system progressing? Could further payments be received by ensuring that offenders pay, not just in the community but in prison? Could the Government work harder by going back several years to a piece of legislation that is on the statute book but that was never implemented, the Prisoners’ Earnings Act 1996? Could more effort be made to ensure that prisoners perform both purposeful work and work that pays, as well as paying into a victims fund so that victim groups, if not individuals, receive recompense?
The Government have talked about having a victims toolkit to help victims to get grants for which they are not currently eligible. It was suggested that the toolkit would be delivered in April 2007, but we are still waiting for it.
One matter that has not been addressed in the scheme is loss of earnings. Applicants are not entitled to compensation for loss of earnings for 28 weeks, so a self-employed taxi driver who was assaulted by a passenger would be unable to claim for loss of earnings in those months. I appreciate that it is not directly equivalent, but in a civil claim that would be as of right.
Maria Eagle: Is the hon. Gentleman suggesting that his party would have loss of earnings in the scheme from the date of injury?
Mr. Burrowes: No, the position is that it needs to be carefully considered by a Minister, who needs to be aware of and to have discounted the concern that has been raised by victims groups, the legal profession and others.
Barry Gardiner: I think it would help the Committee if the hon. Gentleman clarified his view and position on the matter. We can discuss it in the abstract and talk about whether the Government or the Committee have considered it, but the key point is knowing where we stand.
Mr. Burrowes: I made it clear to the Minister that I was not considering that to be proposed within the scheme. It is important that the Government should establish that they have taken full account of concerns about the lack of entitlement to loss of earnings for 28 weeks. The Minister might respond that it is because of eligibility for statutory sick pay during those 28 weeks, which means that the state is making some provision in that time, but for the self-employed taxi driver, that provision may be limited.
Another area of concern is rehabilitation for victims of violent incidents who have been discharged from hospital. In a civil claim, the insurers would have a code for rehabilitation and would nominate a rehabilitation consultant—often a nurse—who would assess that person’s need, such as whether a wheelchair or ramp was needed. That code is a useful, practical mechanism that insurers use in civil courts to assist applicants. Is a similar code being considered within the ambit of the scheme as a practical way of providing rehabilitation for victims? In many ways, such a rehabilitation scheme would effectively assist the victim of a violent incident, in many ways, to return to work and be less dependent on the state. I do not want to take any more of the Committee’s time—
Mr. Lindsay Hoyle (Chorley) (Lab): Hear, hear. Quite right.
Mr. Burrowes: That news was greeted with wild acclaim.
I do not wish to oppose the draft scheme, but there is a concern about whether a gap has arisen between the proposals made in 2005 and the draft scheme and whether an opportunity has been missed to address many of the concerns that victims have raised.
5 pm
David Howarth (Cambridge) (LD): It is pleasure to serve under your chairmanship, Mrs. Dean.
The principal idea set out in “Rebuilding Lives” that has not been advanced is the proposal to remove about 60 per cent. of claims at the bottom end of the range to finance the lifting of the cap from its present level of £500,000, and I welcome that decision. The Minister stated that that proposal was wholly unacceptable to consultees, and rightly so. The scheme is a way of sharing the risk of harm from criminal injuries. In a perfect world, criminals would pay through civil damages, but for the most part, unless they win the lottery, which has happened once or twice, it is unlikely that they would be in a position to pay civil damages. The question is therefore, “On whom should fall the burden of the risk that the defendants themselves cannot pay?”
Without the criminal injuries compensation scheme, the entire burden of that risk would fall on the victims themselves. The function of the scheme is to share some of that burden, although not all of it, with the state, and thereby with taxpayers as a whole. It is worth saying, as has been said on previous occasions by Governments introducing schemes of this sort, that the criminal injuries compensation scheme is not about the Government accepting responsibility for crime or for the harm caused by crime, but about sharing the burden imposed by criminal defendants on their victims. That is why it was right to reject the proposal to take 60 per cent. of the beneficiaries out of the scheme. The number of people who benefit is important, and the notion of concentrating on a few very badly affected victims would immensely reduce the scope of the scheme. Part of the idea behind the scheme is that as many victims as possible should benefit from it.
I sympathise with the Ministry that the original intention was to be able to raise the £500,000 cap, which has not kept up with inflation, as the hon. Member for Enfield, Southgate mentioned. Had the cap kept up with inflation, it would now be about £650,000. Even at that level, it would fall well short of what badly disabled victims would receive in a civil action. I fully accept that the scheme is not designed to match civil damages, because it is an exercise in sharing the burden, not in the state taking responsibility for it, which would be quite a different thing. But the point remains that if the cap does not keep pace with inflation, the share of the burden borne by victims as opposed to taxpayers will rise.
The hon. Gentleman mentioned the possibility of clawing back money from people who are in prison. The scheme before us deals mainly with violent crime, and many of the offenders concerned go to prison, so the question is whether the suggestion is practical or plausible. We might have to ask the Prison Service to take on more work inside prisons from the private sector. A lot of the work that happens inside prisons is from elsewhere in the public sector, so, effectively, we would just be shifting around the public budget. Work is done for the NHS, for example, but the Government would have to try to find more work from private sector sources, then pay prisoners more than their current £9 a week and claw back some of it for victims’ compensation. On the face of it, that seems like a good suggestion, and I should like the Minister’s comment on it.
Unlike the hon. Gentleman, I have only two specific points about the details of the scheme. First, paragraph 35(1)(d)(iii) deals with care costs, and there seems to be a change from the 2001 scheme. The new scheme restricts care costs to applicants’ core costs, such as the cost of helping them with bodily functions and meal preparations, whereas the previous scheme seemed to deal with all care costs. Why has the change been made, and is it justifiable to place the extra cost on the individual victim? Secondly, in a similar vein, I have a question about the earnings limit. Financial loss under the criminal injuries compensation scheme is restricted, unlike civil liability damages, to one and a half times average earnings: someone cannot get whatever earnings they have lost; they are limited to one and a half times average earnings. But the definition of average earnings appears to have changed from the 2001 scheme to the 2008 scheme. In the 2001 scheme, average earnings were defined as gross average industrial earnings, whereas in the new scheme, they are defined as median gross weekly earnings. Why has that change been made, and what difference is it expected to make? On the face of it, given that earnings are skewed with a very long tail at the high end, changing average—meaning mean—to average, meaning median, represents a reduction in the amount of money available. On the other hand, changing from industrial earnings to earnings in general might have the opposite effect, so I should like the Minister to comment on what it is expected to do.
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Prepared 15 July 2008