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Perhaps most importantly, we have substantially recast the paragraphs dealing with additional compensation for loss of earnings and future earning capacity; the payment of awards in fatal cases; and the reduction of compensation on the grounds of benefits received from other sources. Our aim was to modernise the rules to make them simpler and more logical, and to avoid cases of claimants getting double payment from the state in some circumstances.
As to other changes, we have made it clear in paragraph 8 that not only must the injury have been sustained in Great Britain but it must have been directly attributable to an act occurring in Great Britain. This is specifically to clarify the original intention of the scheme that both the incident and the injury must have taken place in Great Britain. For example, following the 9/11 terrorist attacks in the USA in 2001, the authorities there determined that qualifying relatives of those killed and who had witnessed the events on live television in Great Britain were eligible for compensation for the mental injuries suffered. Thirty-seven applications were made, of which 26 received awards, totalling £68,000. Our scheme was never intended to cover such cases and this alteration puts the meaning beyond doubt.
We are strengthening the criteria for withholding or reducing awards on account of the claimant’s previous unspent criminal convictions and the criteria dealing with time limits for applying for compensation and accepting offers of award. The reason for clarifying how long an applicant has to apply is that the time limit for making applications has been set at two years since the introduction of the statutory tariff-based scheme in 1996. The power to waive that time limit has been used frequently, but inconsistently, within the authority and this clarification is to insure against anomalies or unfairness.
We have not altered the number and value of the 25 tariff bands but we have made a number of changes to the tariff of injuries. We have made changes to some of the descriptions of awards for sexual offences using terminology from the Sexual Offences Act 2003 to ensure consistency, and we have inserted some new categories and made some other changes to rectify inconsistencies. We have substantially recast the section dealing with compensation for brain damage to recognise the wide range of brain injuries and to enable the award to be more closely aligned to the injury suffered. We have increased the awards made payable for injuries to teeth in recognition of the reality that victims will often have to use some of the award to pay for corrective dental treatment.
We have also inserted a number of new injury descriptions, changed the descriptions of others and moved one or two injuries into higher or lower tariffs where operational experience and medical and legal advice have suggested this would now be appropriate. The tariff now lists some 450 injuries. If parliamentary
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We believe that the changes we are proposing will complement the radical changes that the authority has been making to its end-to-end case working and business processes over the past two years or so. I am happy to say that these changes have already led to improvements in how the authority operates. This will all help to result in a more efficient operation, providing a better, faster and more transparent service to victims of violent crime and making the best use of the available resources. I commend the draft new scheme and invite the House to accept it. I beg to move.
Moved, That the draft scheme laid before the House on 18 June be approved. 23rd Report from the Joint Committee on Statutory Instruments.—(Lord Bach.)
7 pm
Lord Henley: My Lords, I hope that I can be relatively brief. On Monday, my honourable friend David Burrowes debated this at some length with the Minister’s colleagues in another place. Most of his questions about consultation were dealt with on that occasion, so I want to add only a couple of points.
First, to pick up one of the Minister’s last remarks, he talked about the increase in awards for dental treatment for damaged teeth. If people have to pay a lot more for restorative work for teeth, that seems to suggest that there are considerable failings in NHS dental services on that front. I would be interested in his comments on that.
My second point, which is more substantive, is about the various orders relating to the transfer of tribunal functions, which I understand we will be dealing with on our first day back, 6 October. The Minister will be aware that I recently saw his colleague, Mrs Bridget Prentice, about those orders because of some concerns that we have had about them. Mrs Prentice promised that there would be further consultation on those orders and said that they might have to be relaid—nothing to do with the criminal injuries compensation scheme, but purely in relation to Pensions Appeal Tribunals and matters relating to war pensioners. If they are not amended and there are disruptions, as it were, in this House and the orders do not go through, what will happen to the scheme that we are going to agree to on this occasion, the Criminal Injuries Compensation Scheme 2008? It is important that the Minister addresses this question. The two have to go together. It is important that we have the new tribunals in place, but, as the Minister is well aware, we cannot amend those orders if there are problems with the Pensions Appeal Tribunals when we come to discuss this on our first day back.
My next question for the Minister is, I appreciate, a difficult one. His department, in its Explanatory Memorandum, which is good and very clear, reckons that compensation claims amount to something in the order of £200 million a year. He was quite right to emphasise the generosity of the scheme that is in place now and how it compares with similar schemes in the United States. I appreciate that he cannot say whether the Government estimate that the scheme will increase in future, but it would be helpful if he could tell us
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Baroness Falkner of Margravine: My Lords, like the noble Lord, Lord Henley, I see that my colleague, Mr David Howarth, dealt comprehensively with the scheme in another place just a few days ago. I will therefore keep my remarks brief.
Like Mr Howarth, I am pleased that the scheme does not pursue some of the ideas in Rebuilding Lives that would have been rather damaging. I particularly welcome the fact that the Government have not proceeded with a proposal to exclude victims who suffered the crime at work, as that would have been quite unjust. A suggestion was made in the consultation paper that the employer should take on that burden and pay compensation through insurance. That would have undermined the entire scheme, so I am glad that it is not being proceeded with. I hope that the Minister can assure us that there is no intention at any point to bring that idea back.
I have two specific points about the detail of the scheme. Paragraph 35(1)(d)(iii) deals with care costs, but there seems to be a change from the 2001 scheme in that regard. 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 one’s care costs. Why has that change been made? Is it justifiable to place the extra cost on the individual victim?
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, so someone cannot get whatever earnings they have lost; they are limited to one and a half times the average. However, the definition of “average earnings” appears to have changed from the one used in the 2001 scheme. In 2001, “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? 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 that average, which meant “mean”, to this average, which means “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. What is the change expected to do?
Besides that, we have covered the ground fairly comprehensively between the two Houses, and we on these Benches are broadly content with the scheme.
Lord Bach: My Lords, I am grateful to both Front-Bench spokesmen for what they have had to say and
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The noble Lord asked a number of questions. The first one was about teeth. I reject utterly his suggestion that somehow this has had something to do with a decline in the way in which dental practice occurs in this country. In our view there has been a considerable improvement, and I do not say that just because sitting beside me is the former Minister in charge of dentistry throughout the country. The fact is that awards for injuries to teeth are being increased to reflect the fact that the necessary corrective dental treatment is sometimes not available—that is the reality of the situation in the NHS—and the victim has to use the compensation award to meet the costs of treatment. We would have been criticised if we had not agreed to that. Although paragraph 35 of the scheme allows for the cost of private health treatment, including dental work, that provision does not take effect until the first 28 weeks of loss. The amendment helps victims who are not incapacitated for 28 weeks but still need to meet some of their dental costs.
As for the noble Lord’s remarks and his question about orders, the issue is extraordinarily hypothetical. I can tell him that my honourable friend Bridget Prentice, whom he referred to, has had some helpful discussions with veterans’ associations. No doubt we can look forward with delight to a good debate on our return after Recess; in fact, it may be what keeps us going during those long weeks away. With regard to the impact of the situation on this statutory instrument, it does not affect the scheme changes. If the date of the coming into force of the tribunal SI is delayed, we will amend the coming into force of the scheme by negative resolution.
The noble Lord also asked about the scheme’s growth over a number of years. It will be best if I write to him with a table of the increases paid each year. I opened this short debate by saying that £235 million had been paid out in the last year, which was a considerable increase on the previous year. What matters to innocent victims of crime is that their applications, if they come within the scheme’s ambit, should be paid as quickly as possible. I am happy to say that our record on that has improved markedly since 2006.
I am also grateful to the noble Baroness, Lady Falkner, for her comments, although I am not sure that I am so grateful for her extremely detailed questions. However, as she knows, I did have some notice of her questions. Let me deal first with care costs. These provisions often have something in common with previous benefits legislation. The amendment on care costs, which the noble Baroness picked up, follows the wording of Section 72 of the Social Security Contributions and Benefits Act 1992—it has taken us a bit of time to catch up with that wording. The intention is to make existing practice clear. Only core personal care costs are covered; these include dignity-based help that people need if they have been incapacitated, but not social care costs or peripheral costs such as arrangements for having housework or gardening done. We tend to see this amendment as a clarification rather than a change in emphasis.
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The noble Baroness also asked about earnings. The change of the loss of earnings calculation from one type of Office for National Statistics figure, which is no longer to be produced, to another has the effect of changing the arrangements from mean to median. We think that the practical effects—I hope that the noble Baroness will be content with this—are negligible, as most victims do not earn one and a half times the median gross weekly earnings. Individuals may be affected, but we are faced with the practical problem of not having the figures that the ONS used to produce to keep things in line with how they previously were.
Baroness Falkner of Margravine: My Lords, I thank the Minister for that. Would he be able to provide figures in writing on how many people this might affect?
Lord Bach: My Lords, I will take that away and see whether figures can be provided. No doubt they will be hypothetical at this stage, but we will do that. However, we do not think that this will make a huge difference.
I return briefly to the noble Lord, Lord Henley. I now have figures on the value of all payments—interim and final—over the last number of years. I will, of course, send those to him and to the noble Baroness, Lady Falkner. The figures have gone up from £20 million in 1996-97 to £207 million in 2007-08. The difference between that and the £235 million is due to the fact that some are still being paid under the old tariff system. I have done my best to answer the questions. I thank noble Lords again for supporting this scheme.
On Question, Motion agreed to.
Pre-legislative Scrutiny
7.13 pm
Lord Goodlad asked Her Majesty’s Government what is their response to the report of the Constitution Committee on Pre-Legislative Scrutiny in the 2006—07 Session.
The noble Lord said: My Lords, I am grateful to the Government for providing time for the House to ask for its response to your Lordships’ Select Committee on the Constitution’s report on pre-legislative scrutiny in the 2006-07 Session and to the Minister for being in his place to provide that response during an exceptionally busy time in the parliamentary year.
I had suspected that he might be a crypto-Stakhanovite; that suspicion is deepening a little. I shall not rehearse at length the case for pre-legislative scrutiny. Suffice it to say that it enhances Parliament’s capacity to influence legislation at a formative stage and gives an opportunity to individuals and interested parties to contribute to the deliberations of committees. From the Government’s point of view, it should lead to better legislation and save precious time during the later legislative stages of Bills.
In your Lordships’ committee’s 2004 report, it welcomed the use of pre-legislative scrutiny but wished to see it improved and extended. This enthusiasm is
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“Business managers are always anxious to see bills go into pre-legislative scrutiny because it makes them on the whole better bills and it improves their chances of going through”.
The noble Lord, Lord Rooker, recently introduced the Climate Change Bill by saying:
“I must take this opportunity to say how helpful the pre-legislative scrutiny has been in developing the Bill. It was incredibly helpful to civil servants and parliamentary draftsmen in Whitehall”.—[Official Report, 27/11/08; col. 1124.]
The noble Lord also said that the Bill had benefited greatly from the Joint Committee’s careful examination.
During the Second Reading of the Human Fertilisation and Embryology Bill, the noble Baroness, Lady Crosby, noted that the Bill, as introduced, was a,
- “remarkable example of how the legislature should be brought into the drafting and scrutiny of Bills to a much greater extent than is generally true”.—[Official Report, 19/11/07; col. 685.]
So we have the three distinguished scrutineers, and there are many d’Artagnans ready to join them, not least the noble Lord, Lord Norton, who is in his place and is a member of your Lordships’ Constitution Committee.
In the years since the publication of the committee’s 2004 report, the amount of pre-legislative scrutiny markedly declined. In response to that decline, my predecessor, the late Lord Holme of Cheltenham, wrote to the noble Baroness, Lady Amos, then Leader of the House, in January 2007, to ask whether she would agree to write a letter at the end of each Session enumerating the Bills published, wholly or partially in draft, and giving an explanation of the figures and any relevant trends. The noble Baroness rejected that request on the grounds that she was not convinced that it would add any real benefit. The committee, accordingly, announced that it would produce and publish statistics on the volume of draft Bills at the end of each Session, together with comment.
This is the first such report, and sorry reading it makes. The figures showing the decline are in the report before the House. They show that the ratio of draft Bills to government Bills fell from one in three in 2003-04 to one in nine in 2006-07. In the long 2005-06 Session, it was one in 15. The number of draft Bills dropped by two-thirds during that period, contrary to the Government’s 2005 commitment at least to maintain the proportion of Bills published in draft.
In response to the strictures of the House of Commons Liaison Committee in its 2005-06 annual report, the Government stated that they were aware that the number of draft Bills published in recent years had not reached the same total as those published in one or two earlier years, but that they hoped that the number of draft Bills published each year would be above the number achieved in the 2005-06 Session. Yet, they introduced just four draft Bills in the 2006-07 Session, the same number as in 2005-06.
Your Lordships’ committee, therefore, resolved to call on the Government to increase the number of draft Bills published per Session to at least the 2003-04 level, to ensure that all draft Bills were published in good time, allowing 12 weeks for scrutiny at the very minimum and, if possible, considerably more, and,
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The Minister may also wish to revisit the decision of the noble Baroness, Lady Amos, not to write to the committee on this matter at the end of every Session. I know that noble Lords look forward to the Minister’s response to the report, as to all his contributions, with eager anticipation.
7.20 pm
Lord Maclennan of Rogart: My Lords, we are greatly indebted to the noble Lord, Lord Goodlad, and his committee for their work in drawing close attention to the limitations of pre-legislative scrutiny in Parliament, and not merely for their recommendations but for eliciting factual information which has not always been forthcoming voluntarily from the Government. It has to be said that that rather restrictive attitude is somewhat surprising in view of the support that Ministers have generally given on a number of occasions—most notably that of the Lord Chancellor, Jack Straw, to which the noble Lord, Lord Goodlad, referred.
The importance of pre-legislative scrutiny scarcely needs to be emphasised. However, I think it is beginning to become a significant question whether our procedures are adequate to draw forth an in-depth examination of legislation that is not emergency. This House would do well to consider whether a system of pre-legislative scrutiny should be the norm not the exception. In a number of other developed democracies, committees exist purely for that purpose; they are not necessarily a chamber of parliament. In New Zealand there is a pre-legislative committee chaired by a former Prime Minister. In that case there is a predominance of lawyers examining the legislation, and I am quite sure that that would not necessarily commend itself to this Parliament. None the less, that committee’s work is valued by the New Zealand legislature. There are in other democracies other examples of deliberate examination of legislative proposals, not necessarily as part of the amending process but as an attempt to view the fitness for purpose—to use that rather unattractive contemporary expression—of what is being proposed and to allow, before positions become entrenched, the opportunity for those interested in the subject matter to ventilate their views and to give the benefit of their advice.
One indication given by the Leader of the House in her response to the House of Lords Constitution Committee report which we are considering filled me with dismay. She said that,
- “it will not be possible to give a general undertaking to publish most bills in draft or regularly to achieve the figures reached in 2003-04”.
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