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Lord Macaulay of Bragar: Before the noble Baroness resumes her seat, perhaps I may suggest that a simple solution to the definition of criminal injury could be to add the words "as may be specified in terms of the scheme". The scheme is defined in the next clause.
Baroness Blatch: The point at issue is whether the definition itself should appear on the face of the Bill or be contained within the scheme. We argue that it should be within the scheme, and therefore that is where the definition of criminal injury should reside.
Lord Macaulay of Bragar: My noble and learned friend Lord Archer made the point very forcefully from this side of the Chamber that there may well be a simple solution. I declare an interest as a member of the Criminal Injuries Compensation Board. All members of the board are very anxious to make sure that we have a scheme which is workable and understandable. We do not want to get involved in semantics. As has been indicated from both sides of the Chamber, we are trying to agree on a workable scheme. I was only trying to be helpful, but perhaps my noble and learned friend Lord Archer may not agree with me.
Lord Carlisle of Bucklow: In moving the amendment the noble and learned Lord, Lord Archer, said that it merely repeated what was contained in the draft scheme proposed by the Government. Will my noble friend the Minister confirm that it repeats the existing procedure under the 1990 scheme and makes no difference in substance in terms of the definition of criminal injuries?
While I am on my feet perhaps I may ask my noble friend a further question. The only substantial change to the scheme is proposed in Amendment No. 27 tabled by the noble and learned Lord, under which it is intended that there should be power to make structured settlements. At present under the criminal injuries compensation scheme there is no power to make structured settlements. Many of us who are members of the board have believed for some time that it would be in the interests of certain seriously injured victims if we had such a power. I ask my noble friend whether she can confirm that it is the intention of the Government, once the Bill has been passed, to permit the present board, in implementing the existing non-statutory scheme, to provide for structured settlements.
If my noble friend wants a moment or two to obtain an answer to that question, perhaps I may ask her a further question. Am I also right in saying that there is a change in the definition of mental injury, which is brought into line with certain decisions of the House of Lords as to the type of mental injury which will be compensated when the individual himself has not been physically attacked?
Lord Simon of Glaisdale: This is the second Bill this Session under which a statutory phrase is to "have such meaning as may be prescribed". I well understand that, and the noble Baroness made it very clear why she likes that approach in this Bill. However, we should be very chary of conceding that type of draftsmanship. As the noble and learned Lord, Lord Archer, pointed out, the most essential phrase in the Bill is "criminal injury", and "criminal injury" is to "have such meaning as may be prescribed".
The noble Baroness made it very clear that the Government may wish to tinker with the details. That is understandable. However, that drives us back to the point made by the noble Lord, Lord McIntosh, earlier that we are allowing adjustments in the detail to be made by subordinate legislation; in other words by legislation which cannot be amended. I have felt for a long time that the unamendability of subordinate legislation particularly endears itself to Whitehall and is probably a sticking point. However, we ought to think very carefully about how far we accept provisions that require amendment and are intrinsically subject to the requirement of amendment, and indeed are called into being because they require adjustment and amendment, and whether such provisions should not be subject to some procedure whereby they can be amended notwithstanding that they are subordinate legislation.
Techniques are available. On occasion, the noble Earl, Lord Russell, has used a resolution procedure in relation to subordinate legislation asking that the Government take account of this or that. I am not sure that that procedure goes far enough, but it is necessary that where we have provisions which need amendment and which have been called into being because they need amendment, the amendments should be subject to parliamentary control in some way. At present we do not have that directly. What we have seen over the past decade or so is the gradual attenuation of parliamentary control over legislation; and that is a very serious matter
Having said thatit is only by way of warningI do not invite the noble and learned Lord to press the amendment to a Division. However, we should be very careful, very chary, as we go along that path. Officials in Whitehall should be warned that noble Lords are unlikely to put up indefinitely with the phrase that a statutory provision shall have such meaning as may be prescribed, or that a measure requires amendment and adjustment from time to time which, it is asserted, calls for a procedure which is unamendable.
I do not oppose the measure on this occasion; I believe that it may be a special case. However, there are few special cases. We should be aware of the path that we have troddennamely, a substantial abnegation of parliamentary control of legislation over the past decade.
Baroness Blatch: First, I am grateful to the Committee. It has been an important and useful debate. Perhaps I may say to my noble friend Lord Carlisle that I can give him all the assurances that he seeks. The definition of "criminal injury" is indeed a replication of the scheme as it stands. I can also say that when Royal Assent is given to the Bill the existing scheme will be amended to allow structured settlements for residual claims. I know that that is an important point.
There will be a change regarding the definition of "mental injury" in the interests of clarity if nothing else. I hope my noble friend will accept that I shall write to him on that. I shall copy my reply to anyone who is interested.
We have had the main debate about what should be on the face of the Bill and what should be contained in the scheme. We have the safeguard that the scheme itself, and the key points of the schemethis issue would certainly be regarded as a key point of the schemewould be subject to the affirmative resolution procedure and lesser points would be subject to the negative resolution procedure. On that the Government rest their case and hope that the amendment will be withdrawn.
Lord Archer of Sandwell: I confess that I was a little surprised that the noble Baroness described the definition of "criminal injury" in the Criminal Injuries Compensation Bill as one of the more detailed provisions of the Bill. I was fortified that the noble and learned Lord, Lord Simon, shared my surprise.
I wholly agree with the noble Baroness that one does not wish to put too much detail in a Bill. I am no disciple of Lord Hewart. However, how does one draw the distinction between what is detail and what is essential to the structure of the measure being undertaken and how should we retain control over changes in that structure?
I take the view that what we initially stated on this matter is still the case. As the noble and learned Lord, Lord Simon, pointed out, we have seen an attenuation of the powers of parliamentary control over legislation over the past decade. One can think of a number of examples even within the past two Sessions. We regard the issue as a matter of very real principle. I see no sign that the Governmentnot even the Home Office, to whom one normally looks for an appreciation of or a sensitivity to the constitutional proprietieshave taken that matter on board or that there is any meeting of minds on the subject. Therefore, although the noble and learned Lord, Lord Simon, suggested that I might think again about taking the opinion of the Committee, I believe that this is one of the essential matters of principle in the Bill and I propose to take the opinion of the Committee.
Baroness Blatch: Before the noble and learned Lord sits down, perhaps I may add one point. I suggest that he stated quite wrongly that the Government are putting the definition into the scheme because they may want to change it. That is not the reason why that definition is in the scheme. Should a change be necessary, it is important to recognise that we should have a faster track to allow that change to take place than we would have if the provision were on the face of the Bill.
It is true that in recent times changes have been made to the definition. Therefore it is a question of convenience, of the benefit being wholly in the interests of the victim and of getting the matter right. The long stop must be that at the end of the day with regard to any change, and in particular a change of this nature, the Government must have the last word.
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