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Lord McIntosh of Haringey moved Amendment No. 4:

Page 2, line 6, at end insert ("and the age and sex of the person applying for the award").

The noble Lord said: My Lords, this amendment returns to an issue that we debated in Committee. I do not apologise for that because I have better information now with which to deal with it. In Committee the noble Baroness, Lady Seear, made a very helpful intervention and I am sorry that she is not in her place today. I argued then that the age and sex of the applicant are enormously important in establishing the real damage done by any particular injury. We all recognise that the tariff is a rough and ready approximation and that it is deliberately intended to be a rough and ready approximation in order to establish a basis on which compensation can be calculated more speedily by less expert people—in other words, by claims officers rather than lawyers—and at less public expense. We do not underestimate the benefits of speed and administrative efficiency.

The basis on which the tariff has been established is different from the tariff scheme which was subsequently declared illegal. In that scheme there were 187 separate injuries identified; in this scheme there are now over 300. No doubt over the years the number will go up as we learn to distinguish more closely the actual damage done, both psychologically and physically, as a result of different kinds of criminal injury.

But however it has been improved, the tariff scheme still fails to recognise a fundamental series of differences—the differences caused to people of different sex and of different ages.

I take ages first. Clearly, with a very large number of injuries—particularly those which are visible—more serious damage is done to those who are young and perhaps beautiful than to those who are old and certainly not beautiful. More serious damage is done to those who will have to live with the physical results of their injuries over a number of decades than to those who are perhaps in their last decade or couple of decades. That is common sense, as everyone here—of whatever age—will agree.

Similarly, some injuries—particularly those which relate to fertility—have a differential effect. For the sake of this argument we do not need the injuries to have a greater effect, but a differential effect, on women than they do on men. Certainly, injuries which are visible

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have a differential effect on women than they do on men. No one doubts that these are real differences, and no one has contended that these differences are recognised within the tariff.

Indeed, when we consider the relationship of the tariff scheme with the rest of personal injury damages at law, it becomes evident that the tariff without reference to age or sex is woefully inadequate. There are people—I am not making a party point—who will wish, if the tariff scheme works, to apply it to other forms of personal injury, whether injuries at work, injuries caused by medical negligence, or whatever. There may be some justification for that. It may be that the advantages of speed and economy would also apply to such injuries. There is no self-evident reason why that should not be so, although many personal injuries lawyers might be put out of work were it to happen.

As soon as you start to think about applying a tariff of this kind to injuries other than injuries caused by criminal activity, you realise that differences of age and sex, and the seriousness of injury caused to different people of different ages and of either sex, is such that you could not extend the tariff scheme to cover other personal injuries now covered by the common law. The point I am making is that if the tariff scheme is viable, and if it is to be made viable and made applicable to forms of personal injury other than criminal injury, then at some stage it must recognise differences of age and sex.

I had the advantage—I am grateful for it—of a meeting with the Minister and her officials between Committee stage and Report stage. I asked whether information on the age and sex of applicants, of victims was available. It was a question to which I did not have the answer in Committee. The basis on which the tariff was drawn up is statistically sound. Twenty thousand cases were examined and analysed. The median award made for each identified separate injury was identified and used as a basis for the tariff.

To the other question I was asking—about occupation—the answer was that there was no evidence of occupation in the survey of 20,000. But there was evidence of age and sex. In other words, the age and sex of the applicant had in each case been recorded and transferred on to the record sheet which was used as the basis for drawing up the tariff.

So it is physically possible for age and sex to be included in the tariff scheme. That would mean—if you look at the tariff—that where there is a single column of figures on the righthand side of each page opposite each identified injury there would have to be a multiple column of figures to distinguish between the old and the young and male and female.

It may well be—I speak now as a statistician—that the sample of 20,000 is not adequate for each injury for a very wide range of ages. I cannot imagine that it would not be good enough to distinguish between men and women. It is possible to do that. The evidence is available on which to do it, and if necessary the evidence could be extended. The 20,000 sample could be extended and brought in as a criterion. It is common

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sense that the age and sex of the applicant—the victim—is a relevant consideration. I do not think that the Minister will seek to deny that.

If the amendment is to be opposed, it will be opposed on grounds of complexity or practicability rather than on the basic principle underlying it. I have sought, with the help of the Minister and her officials, to show that it is possible to do what we want: that the scheme would be enormously improved in its approximation to real life if it were to be improved in this way. I do not wish to press the amendment. What I want from the Minister is a recognition that there would be an improvement, and that some serious effort will be made in subsequent versions of the scheme to provide for what we are asking in the amendment. I beg to move.

Lord Campbell of Alloway: My Lords, I have every sympathy with what was said by the noble Lord and the way in which he said it. Perhaps I may ask for some clarification. Is not the noble Lord's concern capable of being assumed by subsection (5) within the words:

    "or the circumstances in which it was sustained"?

The circumstances include the age and the sex. "Circumstances" provide the widest possible term.

Perhaps I may ask my noble friend the Minister, whether if I am right, and I may not be, the injury would be so described in the tariff in this way, which accommodates the concern of the noble Lord, because, if so, the amendment would not seem to be necessary. However, I am not sure that I am right.

Lord Carlisle of Bucklow: My Lords, one has a great deal of sympathy with the noble Lord, Lord McIntosh, and the speech that he made. However, regrettably it seems that he was really arguing for the end of the tariff. I would welcome that outcome. I have always argued that it is factors such as age, occupation and sex that a tariff cannot account for in deciding the appropriate volume of compensation. I thought that, sadly, we had all moved on from there in view of the major concessions made by the Government in their second attempt to introduce a new criminal injuries compensation scheme as against their original abortive attempt. I believe that it had been accepted that, for the majority of offences, a tariff of some kind should be introduced, certainly for the simpler offences.

That being so, I find it difficult to understand how the amendment could work. I accept that scarring or injury to the face of a young girl may be worth a considerably greater degree of compensation than on a middle-aged man. I put it no higher than that. If it is said to be consistent with the tariff, does the noble Lord seriously suggest that under the statement in the scheme for something like a nose—there are several different varieties of broken nose or deviated septums set out in the scheme already—it would be possible to put: "(female)", "(male)", and "(over 30)", "(under 50)", "(over 50)", and "(under 30)" with a different price against each?

If we are to have a tariff system, we cannot add that degree of complexity to it without making it unworkable. I was sad that the noble Lord did not support the amendment that I tabled in Committee. It

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was to allow a band of figures rather than a single figure, so that there was a degree of discretion within the band. Although I sympathise with the proposal's aim, I believe that it is impractical for it to be in the tariff; and if it is not to be in the tariff, but at large to change the tariff figure because of age or sex to some other figure which the claims officer thinks most appropriate, then it strikes at the whole root of the tariff system. As I said, having persuaded the Government to change to the degree that they have, that system has been accepted as a central part of the Bill.

Baroness Blatch: My Lords, again, I am grateful to my noble friend for that intervention. It is a question of whether we move back towards the common law scheme and away from the tariff scheme. The Bill presently provides that the basic tariff award should be determined by reference to the nature of the injury alone. This amendment would additionally require that award to take account of the age and sex of the person applying for the award.

As we have made clear all along, there is no "right" amount of money that can compensate a victim for the pain and hurt they have suffered as a result of criminal injury—or most other types of injury, come to that. Any figure is essentially arbitrary. In our tariff scheme, therefore, we are no longer aiming to provide finely judged compensation on the same basis as hitherto; that is, with the aim of in some way trying to restore the victim to the position he or she would have been in had the injury not occurred. What we are aiming to provide is a tariff payment to reflect society's sense of responsibility for, and feelings of sympathy with, the blameless victim of a crime of violence. That is why we have gone for a straightforward tariff-based approach under which all applicants are treated in the same objective and transparent way and under which all receive a payment based on the injury they have received.

That is also why we have resisted persistent calls to adopt approaches which, in some way or another, will make the scheme more subjective and more complex. As your Lordships well know, these approaches have taken many forms—from selecting an award from somewhere in a wide band, as suggested by my noble friend Lord Carlisle, to giving percentage increases in certain circumstances, and to dealing with certain categories of case outside the tariff altogether. And now we have the suggestion that the award should take account of the applicant's age and sex.

All these suggestions would involve subjective judgment or, alternatively perhaps, reference to some sort of matrix of tariff awards which the typical applicant would find bewilderingly complex. All these suggestions would make the scheme more complicated to administer. They would all provoke more argument about what level of award would be appropriate, and that would in turn lead to more appeals. They would also, inevitably, lead to increased costs for the taxpayer, and greatly increase the difficulty of predicting what those extra costs were likely to be in any one year. And all these ideas would also slow the system down,

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negating some of the main advantages we see in a simple tariff approach; namely, speed, simplicity and certainty.

My noble friend Lord Campbell of Alloway asked about the word "circumstances" in subsection (5). That refers to the circumstances in which the criminal injury occurred as opposed to whether the person was beautiful or ugly, young or old, or whatever. My imagination is pretty fertile about a panel, however expert it may be, making subjective judgments about beauty and ugliness. It would be a minefield for subjectivity, would give rise to a great deal of concern among applicants, and would put an onerous task on the appeals panel.

We think that the tariff approach is the right one. It offers a simple, broad brush scheme that the average claimant can readily understand. I call upon noble Lords to reject the amendment.

4.30 p.m.

Lord McIntosh of Haringey: My Lords, the Minister does herself and the scheme much less than justice. She appears to believe that it is much less sensitive and flexible than it is, thanks partly perhaps to parliamentary pressure. It is a great deal more than a tariff scheme and it has many virtues which have been introduced by the Government since the setting up of the previous scheme.

The amendment provides that after subsection (2)(a), which reads:

    "a standard amount of compensation, determined by reference to the nature of the injury",

shall be added the provision:

    "and the age and sex of the person applying for the award".

That is not subjective; it is entirely objective. It requires no further exercise of discretion, judgment, delay or anything else which moves away from the tariff principle.

I was surprised to hear the comments of the noble Lord, Lord Carlisle, in describing the amendment as being the end of the tariff. It improves the tariff in the extent to which it maps against reality. It is not an improvement which in any way threatens the principle of the tariff. I repeat that it does not require claims officers to make subjective judgments. It requires them to work on a fixed tariff basis on objective criteria. They can make their judgments taking into account age and sex as simply as they can by identifying the injury.

The amendment does not require that as regards the different ages and sexes there should be a difference in the award that should be made, any more than there is a requirement that each individual injury should have a different amount of compensation. The tariff lists more than 300 injuries and only 23 bands of compensation. Many different injuries fall into the same band, and that would remain the case. I open the tariff at random and see "Torso: loss of spleen". I cannot imagine that as regards loss of spleen there would be a difference between the different sexes or ages. As regards "Torso: damage to testes", clearly that applies to only one sex. As regards "Torso: dislocated hip—full recovery", one would not need to make a distinction between the

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different ages and sexes. However, as regards a visible injury or an injury related to the physical sexual characteristics, there is the possibility of making such a distinction.

With due respect to the noble Lord, Lord Carlisle, it does not mean that the list of 310 injuries will suddenly become a list of 3,100. There could be a single column list because the level and the tariff payment map 100 per cent. against each other. It would mean that in the space of the single column there would be a number of columns for each of the same number of injuries. There is no threat to the tariff scheme, nor to the ability of claims officers—even those relatively unskilled in the law or medicine—to assign injuries to a particular band and therefore to make speedy judgments.

The argument for the amendment is that it is in favour of a tariff scheme which accords more closely with what we all know to be the reality. I am deeply disappointed that the Government have not felt it possible even to recognise that in the future and in the interests of the tariff scheme they may wish to introduce an amendment along these lines.

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