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Lord Ackner: I had considerable sympathy with Amendment No. 6, moved by the noble Lord, Lord Carlisle. However, I also accept that if bands are brought in the concept of a tariff is substantially modified, if not substantially changed. I therefore did not speak in favour of the amendment. Clearly the Government are insistent that there should be a tariff scheme and the justification, which is wholly understandable, is that this provides a much quicker determination than using the common law approach.

On the other hand, one would expect that the Government would wish the scheme to be fair—not only to be perceived as fair but to be fair in fact. The Government will have to accept that the scheme will be perceived as being in many respects unfair for the simple reason that the compensation is not related to the victim; it is related to an injury in the air, not an injury to a particular person. Therefore the compensation is just a rough and ready guess at what might be

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appropriate. If the scheme is to be fair, the Government will have to give way. If they do not give way, it means that they are insistent that the scheme will be unfair in many cases.

It seems to me that what is proposed here is a compromise. The amendment does not propose bands, since that would be to bring in the common law approach—the bands that are set out in the Judicial Studies Board's publication for the assistance of judges who have to deal with the common law. What is proposed is a measure of discretion based upon a percentage uplift, to use that horrible expression. That may mean that one disadvantage of the scheme is that it will have to be operated by a civil servant of a somewhat higher IQ than that anticipated at the moment, but that may be no bad thing.

Lord McIntosh of Haringey: Perhaps the noble and learned Lord will permit me to intervene. I do not believe he would wish to assert that ranks in the Civil Service were associated with different IQs. Perhaps it would be more appropriate if he used the words "seniority" or "experience", but junior civil servants also have high IQs.

Lord Ackner: I do not shrink from the reality that mental capacity is meant to have some connection with the position that is held. I am surprised that the noble Lord flinches from that inference. Clearly, if there is to be a measure of discretion which is exercised by a judicial function, the person who exercises that discretion must be better aware of the subject with which he deals. However, all that is by the way. I simply suggest that what is proposed is a compromise. It provides a measure of discretion of a limited kind. Of course, it will result in a number of people being dissatisfied that the discretion has not been exercised in their favour, which is one of the disadvantages of discretion. What needs to be balanced is the demand for a scheme which clearly is not in many respects unjust and unfair against the administrative disadvantages of providing a situation in which there are more appeals and effort involved in the decision-making process. I believe that to use a percentage increase as the measure of discretion is a fair compromise. Like the noble Lord, Lord McIntosh, I am not wedded to a particular percentage, as long as it provides a realistic element of discretion. Therefore, in principle I support these amendments.

Lord Rodgers of Quarry Bank: I should like to add my support to the amendment moved by the noble Lord, Lord McIntosh. Because he was intent on correcting an earlier report in Hansard, he was perhaps rather modest in moving this amendment. It is a very important debate, though it goes back to matters discussed earlier in the course of the amendment moved by the noble Lord, Lord Carlisle.

As the noble and learned Lord, Lord Ackner, has said, the tariff is inevitably rough and ready. However, the Government have settled upon it, and all of us find it very difficult to say categorically, in view of the previous discussion, that that may not be the right course. Having settled on that course and agreed on a

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tariff of the kind before us now, it is up to the Government to consider whether there is any way of differentiating, within the idea of a tariff, between the very different circumstances of individuals.

The noble and learned Lord, Lord Ackner, also said that the scheme had to be fair and seen to be fair. Although only experience will show, in my judgment there is a very real danger that the good intentions behind the scheme will be undermined by the extent to which inexperience is seen to be unfair. Whatever the Committee may decide, and whatever Parliament may eventually contrive in this Bill, I find it very difficult to believe that within the next four or five years proposals will not be made to have a scheme which includes the flexibility that is now absent. How much better it would be if the Minister today or on Report or at a late stage could say that within the idea of the tariff there would be a degree of banding.

The noble and learned Lord, Lord Ackner, said that, if bands were introduced, the idea of a tariff would be substantially changed. I do not agree with him. I believe that the idea of a tariff remains even if banding is introduced either in the terms of this amendment—to which the noble Lord, Lord McIntosh, says he is not committed in detail—or in some other way. It is possible to have flexibility to take account of differences of age, sex and circumstances and yet preserve the idea of a tariff which will make it much easier to administer the scheme and make clear to those who may wish to claim under it what claims they can make. What is being asked for is a measure of discretion. I hope that, even if the Minister feels unable to accept this amendment, she will be prepared to look again at the possibility of an element of discretion being introduced into the basic scheme to which the House has been committed.

8.15 p.m.

Lord Macaulay of Bragar: It appears to me that this amendment meets the issue raised earlier in the debate, in that it introduces a compromise between a tariff scheme and a common law scheme, having regard to the equation that compromise equals fairness to the individual who has been injured. I hope that the Minister will take on board what has been said by all parties in support of this amendment.

I am sure that the noble and learned Lord, Lord Ackner, did not mean to insult any of the civil servants who were running this scheme under great difficulties. I can assure him that they are working under tremendous pressure from all sides. Having worked with them in London and Glasgow, I can assure the Committee that in both cases there are tightly structured and controlled teams of civil servants. Whatever happens to this particular Bill, those civil servants make decisions which enable the scheme to function. Without their dedicated service this scheme would have ground to a halt about four or five months ago following the Home Secretary's illegal actings.

Baroness Blatch: Taken together, these amendments would allow the tariff award to be increased by up to 20 per cent. to reflect so-called special factors, and by a further 50 per cent. on account of the applicant's age; in

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other words, in some cases the tariff award could be increased by up to 70 per cent. That is on top of the most generous scheme in the world. I have noted and taken account of the points spoken to by everyone in the debate.

The noble Lord, Lord McIntosh, is not hooked on a particular percentage. One can negotiate percentages. However, whatever they are, the percentages are in addition to a very generous scheme. We find this unacceptable. The whole point of a tariff scheme is to have a quick, transparent means of getting money to victims of crimes of violence. It does away with the individual assessment inherent in a scheme based on common law damages, which is inherently more complex and tends to militate against speedy decision taking. I take gentle issue with the noble Lord, Lord Rodgers of Quarry Bank. Any introduction of discretion, which would sweep all the way through the list—mention was made of age, whether somebody was pretty or ugly, and all sorts of exceptions—would invalidate the whole point of a tariff scheme. There is a legitimate debate about whether there should be a tariff or common law scheme, as mentioned earlier by my noble friend Lord Carlisle of Bucklow. But once a tariff scheme has been accepted the integrity of the system needs to be thought about.

As the Government have sought repeatedly to explain, there is no right figure that can compensate the blameless victim for the pain and hurt that he or she has suffered as a result of a crime of violence. Under the enhanced tariff scheme we do not try to make a finely judged assessment of compensation, in the sense of attempting to put the individual back into the position in which he or she would have been had the attack not occurred. What we aim to do is to make a generous payment in recognition of society's concern for the blameless victim of a violent crime. In our view, a simple, transparent system, where the awards are based on the most typical award for the injury concerned—the median award—is the right way to do that. I say to the noble Lord, Lord Rodgers of Quarry Bank, that the scheme is not that rough and ready. The scheme is based on actual awards made by the present system, which is based on the common law approach. Over a period the average has been taken, and in every case the dominant injury is in the tariff. So we have erred on the generous side in that sense. It is not so rough and ready, as the noble Lord said.

We therefore cannot accept the amendments. They would mean in effect reverting to a system of individual assessment, very much as happens under the present scheme. The introduction of such subjective assessments would inevitably mean that cases would take longer to settle. It would also mean that requests for review and subsequent appeal would become the norm, since claimants—or their representatives—would have nothing to lose by claiming that there were special factors in their case. There would inevitably be upward award drift, with more and more awards tending to be tariff plus "something additional". That would take us back to the position where costs would no longer be predictable or controllable and where claims took an increasingly long time to settle as their handling became increasingly convoluted and subject to dispute.

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Where the victim is particularly badly injured or the effects of the injury are most prolonged or serious, the new scheme includes provision for the claimant to receive additional compensation for loss of earnings and the cost of special care. In such more serious cases, that will enable variations in impact of the same injury on different people to be taken into account, so that, for example, a young person who loses an eye is likely to receive a considerably higher award than a pensioner who suffers the same injury.

Finally, I repeat the point that the tariff awards are in fact based on the injury to the dominant limb. There is therefore no case for adding to the tariff award for such an injury. The noble Lord, Lord McIntosh, mentioned references to "right" and "left". I have looked all the way through the tariff. There are references to losing a hand or both hands, a leg or both legs, but there is no reference to right legs and left legs or right hands and left hands. If we are being logical, there is a case for reducing the award. If the argument in this Chamber is for a relativity between the award for a dominant limb and the award for a non-dominant limb, if someone would like to bring forward an amendment, that can be considered. I feel that one should take what there is on the table at the moment and be generous all round rather than consider, for artificial reasons, introducing a relativity. If there are to be relativities, at the moment we rather favour the non-dominant injury and pay the right award based on actual awards for the dominant injury.

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