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Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 53, Amendment No. 53A:

53A Line 15, at end insert—
"( ) The amount recoverable from a person under the regulations may be determined by reference to the extent to which the offender acted jointly with another person in causing the damage and to the proportion of the damage that was caused by that offender."

The noble Baroness said: My Lords, I am back into my rather boring mode of, "how does it work?". The Minister has spotted that, but I am grateful to her for giving a fuller explanation than was achieved in another place—particularly regarding her explanation of the matter of joint enterprise and the apportionment of payment by the offender. Of course it is good practice, in court proceedings where more than one person is convicted of an offence, for the court to apportion compensation according to the culpability of each of those persons. Often not every guilty person
 
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is there, so it is difficult anyway to apportion the compensation effectively. I appreciate that as near a correct result as can be achieved should be achieved through the drafting of the amendment proposed by the noble Baroness.

I was also concerned by the issue of what would happen if someone's conviction was overturned on appeal. I clearly heard the comments of the Minister that one would not need to worry about that because there would not be a recovery until later anyway—and if there was a need to recover compensation and pay it back to the offender, who is no longer an offender, one should not worry, because the CICA could do that anyway; so there would be no need to put that duty on the face of the Bill. My difficulty was that if there is no duty on the face of the Bill I was not sure how the person would have recourse against the CICA if the money was not repaid to them. But perhaps the Minister will tell me that there are procedures within the CICA to ensure that it would make such reparation.

She then might say that all of that would be tied up within the regulations anyway, and that the House would have the opportunity to deal with that—but by negative resolution. That is why I raised the issue of whether that should be made by affirmative resolution. I appreciate that the Minister has not yet had the interesting experience of being in opposition. If that ever comes her way, she will find that it is quite an interesting experience, to say the least, to arrive on a Monday morning to a pile of orders on her desk to determine whether any such negative procedure orders alarm her enough to pray against them. Indeed, the noble Lord, Lord Lester of Herne Hill, has such a prayer next Monday. That is why sometimes we on these Benches are more concerned than the Government to examine why an order should be affirmative.

As we always say, the other place does not have the same procedure as this House and is not always given the time to debate negative instruments, even if they are prayed against. I feel that the noble Baroness has gone far enough to satisfy my questions tonight. The underlying concern still remains: how much money will actually be raised by this new procedure and will it work? That answer will come when the system is in operation. For the moment I shall move the amendments and I anticipate that my noble friend Lord Carlisle of Bucklow will contribute, but I shall not press these matters. I beg to move.

Moved, as an amendment to Commons Amendment No. 53, Amendment No. 53A.—(Baroness Anelay of St Johns.)

Lord Carlisle of Bucklow: My Lords, I start by making two declarations. One is a declaration of apology that I was not present when the Minister first rose to her feet, although I think that I heard most of her speech. Either the previous amendment was dealt with very quickly or I walk very slowly, as I thought that I started walking here when the previous amendment was still being considered. Secondly, I declare an interest as the former chairman of the
 
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Criminal Injuries Compensation Board, and I am delighted to see my noble friend Lord Thomas in his place. He was, of course, a member of the board and I hope that he may add to my remarks.

I am sure that the Minister and I both acknowledge, and are proud of, the fact that, of any country, ours has the original—that is, the first—and clearly the best system for compensating victims of crime in the most generous of terms. What I question about Amendment No. 53 is not the principle but what it will achieve in practice.

At present, as the Minister will know, the Criminal Injuries Compensation Appeals Panel or the Criminal Injuries Compensation Authority, as it is now called, as opposed to "Board", has always had, and has, the power to pursue an offender who has been convicted by the court when that court has made a compensation order and the CICB or CICAP has made an award afterwards. Those bodies take over the compensation award made by the court if it has not been fully met and they pursue the applicant.

As I understand it, it is suggested here that that should be widened so that, provided that the offender has been convicted, in all cases the authority should be able to pursue the offender for any award of compensation that it may make to the victim, irrespective of whether or not the court has made a compensation order.

My first question is: how is the authority to know the offender's means to pay? The great advantage of a compensation order made in a court is that the offender's ability to pay is taken into account. The right to pursue the offender will apparently exist irrespective of his ability to pay and that may lead to many claims being made when they are not possibly achievable. That is my first query and worry.

Secondly, what happens when the offender, having pleaded guilty, nevertheless challenges the amount of the award? Let us remember that we may be dealing with a case where a man pleads guilty to an assault in which he punched another man in the face. It is possible that the man who was punched hit the corner of a pavement and is now unfit to work for life. He is being compensated for that, although it arises from the punch in the face. What will happen when the offender says, "I pleaded guilty to assault and a compensation order was made on the basis that we had a fight and I hit him. But I had nothing to do with the injury caused to his brain, or he had some other injury beforehand, and I don't see why I should be asked to pay for the rest of it"? I am not saying that the Bill does not cover that; I am asking how it covers it. How does it cover it without the possibility of a serious danger of the medical reports provided for the board by the victim, in which he has privilege, being required to be disclosed to the defendant?

If the offender says, "I know I hit her"—the charming Minister sitting over there—"but she had other injuries and I am not responsible for those", I am
 
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told that he will be entitled to challenge the amount of the award. Suppose he says, "I wish to see the medical reports on which the award was made to Lady Scotland". Is he entitled to see them and, if so, does that breach the privilege of her medical reports?

These worries make me believe that the new power will be used very sparingly. With the greatest respect, I suspect that to some extent that it is a degree of window dressing. I am not sure whether one will receive any more money by pursuing awards made against people whose ability to pay one does not know, who have the right to appeal to a tribunal—I am not clear how that tribunal is formulated—and who, unless they win the pools and the news hits the newspapers, have no money at all. One may be pursuing a man with no money for no particular purpose. Is it really window dressing?

I am sure that the Minister will be happy to confirm that they have cut the budget for the Criminal Injuries Compensation Authority. She shakes her head—I may be wrong. I thought that they had cut the budget for the Criminal Injuries Compensation Authority and I thought that perhaps this was a way of trying to recoup the money from the offender. Will it succeed? I do not know. I do not oppose it in any way in principle. I know that our views are the same as the purpose of the scheme. I just feel that this particular proposal may not have been fully thought through, even if it is rather better baked than the one on which my noble and learned friend Lord Mayhew spoke earlier.

Lord Thomas of Gresford: My Lords, I follow the noble Lord, Lord Carlisle of Bucklow, and at the same time I pay tribute to him for all the expert and hard work that he put in as chairman of the Criminal Injuries Compensation Authority, of which I was for some six or seven years a member, along with other noble Lords.

In law there is a saying that when one door shuts another opens. Here we seem to have a new industry in which claims officers are to be appointed. Presumably they will be legally qualified or will have some kind of training. There will also be a scheme manager. The scheme appears, on the face of it, to be that the claims manager investigates all the circumstances. He investigates what happened; he apportions blame; he determines how much compensation is recoverable, which presumably involves an investigation as to the means of the person who has to pay; and, in addition to him, there is someone who can conduct a review—a person other than the person who made the determination under review. So the files build up again. I know that the noble Lord, Lord Carlisle, will recall the way in which files can build up in matters of this kind and the whole situation becomes a bureaucratic nightmare.

What has been the situation until now? I see that the Minister is being handed the answer before I have finished speaking. The position that has pertained until now is that a court, in considering how to deal with an offender, and with knowledge of his means, will order that person to pay compensation. That compensation is taken into account by the Criminal
 
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Injuries Compensation Authority. The compensation can, as the noble Lord, Lord Carlisle, pointed out, be taken over by the CICA and paid directly. That is a way in which there is recovery.

So already built into the system is a judicial determination of responsibility, a judicial determination of compensation and recovery with the CICA. Why do we need to have a new system such as this? If an offender comes into a lot of money—if he wins the pools, succeeds on the lottery or whatever—it is always open to a victim to sue him. If the offender is sued and if the victim recovers compensation or damages, those damages are taken into account as a deduction from any award the Criminal Injuries Compensation Authority may make.

Therefore, there are two ways in which the offender can be made to pay; either originally when he is dealt with in the criminal court or through being sued. Either way the CICA gains. The Bill would set up a system which, as the noble Lord, Lord Carlisle, pointed out, is likely to be used very sparingly because it involves a whole new investigation of facts, apportionment of liability and apportionment of means. Of course it is window dressing.

We know that the criminal injuries compensation scheme, which at one time was based upon civil damages, was reduced to a tariff scheme under the Conservative government and reduced even further by the current Government's pegging of the amount paid out. I have looked at it. The criminal injuries compensation fund has been pegged at about £250 million for the past four or five years. There is obviously a determination to keep it at that level.

When the Government talk about victims being at the heart of their justice policy, I always take that with a pinch of salt. Even the noble Baroness, Lady Ashton, tried today to push out victims from the heart of the criminal justice system because she said that the recovery of penalties and fines was at the "heart" of the system; that is the word she used. So there is a certain amount of conflict. I do not think that the Government should be using the words "victim at the heart of the criminal justice system" until there is a resumption of the Criminal Injuries Compensation Board scheme, as it once was.

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