§ 7.55 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 1st February be approved.
§ The noble Lord said: My Lords, this order will introduce a number of amendments to the criminal injuries compensation scheme, taking account of some recent changes in civil compensation law in Northern Ireland and of changes, actual or planned, in the Great Britain scheme administered by the Criminal Injuries Compensation Board. We have also taken the opportunity to remedy some of the practical difficulties which have been experienced in the operation of the Criminal Injuries (Compensation) (Northern Ireland) Order 1977 from which most of the provisions of this order derive without change. Your Lordships will agree with me if I refer only to the principal changes since 1977 made by the order.
§ Article 2 extends the definition of "relative" to include, among others, a common law partner. This change reflects what is already the position in civil compensation actions.
§ Article 3 introduces a bereavement award on the same conditions as are provided for in an action under the Fatal Accidents (Northern Ireland) Order 1977, which was amended by the Administration of Justice Act 1982. It also introduces an additional award which may be paid where as a consequence of rape a child is born and is kept by the victim. This is similar to the arrangements being made for the rest of the United Kingdom.
§ Article 5 is a key article in the order. Paragraph (2) enables compensation to be paid, as is already the case under the Great Britain scheme, to the innocent victims of domestic violence, but subject to certain conditions. This is a most difficult area which hitherto has been excluded from the compensation arrangements because of the problems which attach to the investigation of the circumstances of such incidents including the identification of degrees of provocation and the elimination of any possibility of collusion. The conditions which are contained in this provision are essential to safeguard the public interest.
§ Article 5(5) requires that an application for compensation must be lodged within three years from the date on which the criminal injury was 1046 sustained. By virtue of Article 5(6) this time limit does not apply in the case of injury sustained by a minor who may if reasonable cause for the delay is shown lodge a claim within three years of attaining the age of majority.
§ Article 5(12) restricts the payment of compensation in respect of impairment of a person's mental condition to those cases where the applicant was present when the act which caused the criminal injury was committed. It further provides that such impairment must amount to a serious and disabling mental disorder. In Northern Ireland there is something of a tradition of innovative litigation and in no area of law has it been more successfully pursued than in what is commonly referred to as nervous shock. The £1,000 threshold on such injuries which was introduced in the 1977 order successfully curbed the proliferation of nervous shock claims which had been previously experienced.
§ But with the passage of time the position has been eroded and claims for compensation for impairment of mental condition are once again commonplace, often in conjunction with a claim for physical injury. Unfortunately some further restriction is necessary if the system is not to be overwhelmed.
§ An increase in the threshold was considered but rejected as it might exclude very deserving cases particularly among the more elderly or disadvantaged parts of the community. The changes which are introduced are intended to eliminate those cases which are but remotely connected to the criminal act or which have not been shown to have had a marked effect on the applicant.
§ Article 5(15) also brings one of the Northern Ireland compensation provisions into line with what has been the arrangement in the rest of the United Kingdom since 1979. It excludes from compensation accidental injuries sustained during the arrest or attempted arrest of an offender or the prevention or attempted prevention of an offence unless the applicant was at the time taking an exceptional risk. This is another area where the boundaries have over the course of years been extended to require the payment of compensation in circumstances which could scarcely have been contemplated when the legislation was originally drafted. The amendment aims to redress the balance and will affect only a small number of claims annually, principally made by police officers.
§ Article 6(1) contains another important provision which brings the Northern Ireland scheme into greater parity with the rest of the United Kingdom. It requires the Secretary of State in determining what, if any, compensation is payable to have regard to the character and way of life of the victim or applicant. This will not involve the making of moral judgments but will be decided only on the basis of the record of convictions by the victim or applicant for criminal offences. To ensure that there is equality of treatment the Secretary of State will operate within the guidelines used by the Criminal Injuries Compensation Board.
§ Article 6(7), reflecting Section 5 of the Administration of Justice Act 1982, allows for any saving which results from maintenance at public expense in a hospital or similar institution to be taken 1047 into account in assessing compensation. However, to avoid having to account for every short spell in hospital, this order provides by virtue of Article 6(8) for any saving in the first eight weeks to be disregarded.
§ In Article 10(1) the Secretary of State's power to make discretionary payments to widows is extended to include widowers.
§ Finally in Article 16 there are two changes of substance. First, the period within which an appeal may be lodged is extended from six weeks to 10 weeks. Secondly, the introduction of fresh evidence on the hearing of an appeal will not be admissible, except with the consent of the Secretary of State, unless notice of the evidence is served on the Secretary of State at least seven days before the date of hearing.
§ As I indicated at the outset, this order deals with a very important subject in considerable detail which is mostly unchanged from the 1977 order. The changes which I have outlined briefly are designed to extend the scope of the scheme and to adjust its direction. I commend the order to your Lordships and I beg to move.
§ Moved, That the draft order laid before the House on 1st February be approved.—(Lord Lyell.)
§ Lord Prys-Davies
My Lords, I should like to begin by welcoming the order, which, as the noble Lord explained, gives more generous consideration to the victims of violent offences. As the crime rate has grown, there has been a growing public concern about the manner in which the innocent victims of crime are treated by the law. Therefore there has been a growing demand in Northern Ireland, as in the rest of the United Kingdom, that the scope of the current criminal injuries compensation scheme should be expanded.
On this occasion I am particularly grateful to the Minister for explaining the main provisions of the order and the changes because I found it not all that easy to understand. That must be a weakness, because a compensation scheme should be presented in a manner which can be easily understood by a layman. Does the department intend to publish a popular version of the scheme or to publish guidelines? If not will it consider the desirability of doing so? I believe that that would be helpful for the layman.
It would also be helpful if the Minister could confirm whether the criminal injuries compensation scheme in Northern Ireland will be different in any material respect from the scheme proposed in Schedules 6 and 7 of the Criminal Justice Bill which has recently been before your Lordships' House. Again it would be helpful if he could tell the House whether the scheme complies in general with the Council of Europe's report on compensation for victims of violent crimes. That report was published in 1984.
I note that the Great Britain scheme set out in the Criminal Justice Bill requires the injury to be "caused by" the violent offence. Those key words are to be found in Section 107. On the other hand, the 1048 Northern Ireland scheme requires the injury to be "directly attributable" to the violent offence. Is there any good reason why the two schemes—one operative in Northern Ireland and the other in the rest of the United Kingdom—should not employ the same terminology in defining the relationship between the injury and the offence?
Much could be said about the details of the scheme but I propose to confine my comments and questions to Articles 3, 5(9), 6, 5(12) and to one omission from Article 12. Article 3 sets out the matters in respect of which compensation is payable. Can the Minister confirm whether that includes loss or damage to clothing of the victim? I appreciate that that would not be a large item but it would be helpful if he could confirm that the article is intended to include damage to clothing.
We have some doubts about Article 5(9), which provides that no compensation shall be paid to a person who has been at any time a member of an unlawful association. There is no public sympathy for victims who are members of such an association, but is there a practical argument for excluding from compensation a person who ceased to be a member of such an organisation many years ago? He may well have ceased to be a member 20 or 30 years ago, and I believe that there could be a great deal of public sympathy for such a person, who would be outside the ambit of the scheme because of his conduct so long ago.
We also have reservations about Article 6, which directs that the Secretary of State can have regard to the character and way of life of the applicant. I appreciate that this is a vexed question, but "character and way of life" is not term of art. One wonders whether the introduction of that criterion may contribute significantly to uncertainty over the scope of the order. Can the Minister explain to the House the theoretical justification for the provision? Is it merely because it is thought that there will be no public sympathy for applicants who possess such unfortunate characteristics?
We have reservations about Article 5(12), which deals with compensation for mental stress. I noted carefully what was said by the Minister about this paragraph but the reservation remains notwithstanding his explanation. As I understand it, compensation will not be paid for the trauma of being an innocent eye witness to a brutal act of terrorism unless the mental injury amounts to,a serious and disabling mental disorder".The claim will not be entertained unless the compensation would have been not less than £1,000. What precisely is meant by the term:serious and disabling mental disorder"?Must the disorder continue for a given period of time before it becomes "serious and disabling"? Again, should not the limit of £1,000 be reduced to £400, which I believe applies generally? Otherwise, the threshold of £1,000 produces a considerable compensation gap. One would have thought—and I think the noble Lord, Lord Lyell, suggested this—that there would have been pressure in Northern Ireland to broaden the scope of the scheme and not to restrict it in this particular respect so that 1049 compensation would be payable to an innnocent eye-witness of an act of terrorism. Again, one would wish to know what is the theoretical justification for imposing these restrictive conditions on this particular claim.
The application for compensation and the amount of compensation are to be determined by the Secretary of State with a right of appeal to the county court. However, according to the order, the Secretary of State does not have to give reasons for not making an award. Would it not have been advisable and more helpful, certainly to a claimant, if the Secretary of State were to give reasons for refusing an award? If the applicant has been refused an award because of the Secretary of State's assessment of his character and lifestyle, should this not be made known to the applicant so that he knows precisely the case that he has to answer on appeal? Perhaps the Minister can tell the House what kind of reasons, apart from the one that I have just mentioned, would justify the Secretary of State in not making an award.
Those are the only questions I wish to address to the Minister. But it would be helpful if he could tell the House how well the current scheme is being administered; how many claims are being received and processed; and how long it takes on average to process a claim. Is there a backlog of claims? And what is the cost of administering the present scheme? We trust that the new scheme will bring greater support to innocent victims of crimes of violence and that it will bring within its ambit some hitherto borderline cases.
§ 8.15 p.m.
§ Lord Lyell
My Lords, we are very grateful to the noble Lord, Lord Prys-Davies, for the care with which he has gone through the order before us this evening. He asked me a number of very relevant points and I shall do my best to cover his curiosity this evening. However, there is one point on which I may have to write to him; namely, the compliance of the order before us this evening with the European Convention on Compensation. I should like to give that matter a little more detailed, careful thought than I am able to give from the notes which I have. The notes are quite comprehensive; but I hope that he will forgive me this evening because a letter on the subject may extend to two pages.
The noble Lord asked me a number of questions of an opening nature. First, I am sure that the noble Lord is not alone in finding the order somewhat complicated to a non-lawyer; but a leaflet of an explanatory nature is available and it will be updated to take account of the changes in the draft order and I believe that this leaflet is referring to the 1977 order to which I have been referring.
The noble Lord also asked about the compensation provisions in Northern Ireland and how they compared with the provisions in Great Britain. Provisions in the draft order before us this evening would bring the rules for paying compensation in Northern Ireland broadly in line with those operating in Great Britain. If I say "broadly in line" that will give the noble Lord some indication. However, there will be some significant procedural differences between the two schemes 1050 which arise from the development of these particular schemes. The main difference is that in Northern Ireland it is the Secretary of State who determines the claim but the applicant has wide grounds for appeal and wide rights of appeal to the court if he is dissatisfied in any way with my right honourable friend's decision.
These traditional arrangements which will continue in Northern Ireland have stood the test of time, particularly in the circumstances which are prevalent in Northern Ireland. We believe that they command widespread public confidence and that they should remain, and indeed they provide a very valuable and valid safeguard to members of the public.
The noble Lord also asked about payment for clothing or physical aids. The basic argument against the inclusion of these particular items in Article 3 is that it would be anomalous to pay for damage to items of property in a scheme designed—and I have to stress this—to compensate for personal injury. Secondly, we believe it would create an unfair distinction between victims of an attack based on whether or not they had suffered actual injury during the incident. Thirdly, there would be a problem—and I believe the noble Lord will agree with me on this—in verifying and assessing the value of the items of the clothing and so on at the time of the damage, which might take account of wear and tear and other factors.
The noble Lord also asked me about membership of an unlawful association and the character of a claimant. A lifelong exclusion for membership of an unlawful association would appear to be a draconian measure, but when the original measure was introduced in 1977, the view of the Government was that anyone whose intent appeared to be the destruction of society and the infliction of suffering on others through involvement in terrorism had forfeited any right to compensation under a scheme which is, I stress again, intended to assist innocent victims of violence as a mark of public sympathy.
However, we recognised then (and still do) that there may be cases where the application of this principle would be unduly harsh, and I believe those are the ones to which the noble Lord is pointing. That is why my noble friend the Secretary of State has the authority to make discretionary payments wherever he considers it is in the public interest so to do. When one mentions the public interest, I am not producing a needless smokescreen. I am sure that the noble Lord, Lord Prys-Davies, will accept that there may be grounds where it would be imprudent and wrong for my right honourable friend to give his decision or to indicate what were the grounds. But I know that my right honourable friend would wish me to say that he will exercise this discretion so far as he is able, above all in the public interest and in line with what we have proposed.
The noble Lord pressed me a little further on the justification for the character and way of life provision in Article 6. We believe the introduction of this provision is justified and is based on the argument that there is no appropriate way under any measure in your Lordships' House to make awards out of public funds to those who have perpetrated 1051 serious crimes on their fellow citizens; for example, drug trafficking or habitual thuggery. Once again, I stress that compensation is considered to be an expression of public sympathy for the innocent victims of violence and that is the main driving force behind the order this evening.
We know that Article 6 applies even where there is no connection between the victim's way of life and the incident out of which the criminal injury arose. Its application will be determined by reference to previous criminal convictions and only serious or persistent offenders will be affected by the measures in Article 6 which give the noble Lord some concern.
I return briefly to Article 5. The noble Lord raised the question of the lower limit for what we like to call nervous shock cases. There is a problem with nervous shock cases. The victim's mental reaction to an incident is difficult to assess in an objective way. It is frequently the subject of conflicting opinion by psychiatrists.
This difficulty is even more pronounced in claims where the degree of mental impairment—I believe this is a somewhat technical term but I am sure that the noble Lord will be at one with me in this—is relatively slight. The opinion of the psychiatrist has to rely heavily on the applicant's account of his condition. In these circumstances it is extremely difficult, if not impossible, to separate the genuine claims from the false ones with any degree of certainty. It leaves the scheme open to abuse.
The proliferation of what we call nervous shock claims in the early 1970s led to the introduction in 1977 of the £1,000 limit which effectively restricted payment of compensation to cases of serious mental disorder. This is a measure which has survived from 1977 and we believe that it provides a reasonable limit even in the conditions in Northern Ireland.
The noble Lord asked me about nervous shock and the phrase "directly attributable". The interpretation by the courts of this expression has become much more liberal and generous than it was originally intended to be. It has reached such a pitch that it no longer conveys the need for a close and immediate link between the offence and the injury. We have found that an increasing number of claims are now being received which previously would not have qualified for compensation. The trend is very pronounced in nervous shock claims where we find it very difficult to prove or disprove the link between the injury and the offence.
The new provision, which requires that the applicant must have been present at the scene of the offence to be eligible for compensation, is intended to strengthen the meaning of the expression "directly attributable". A notice of determination which is issued by the Secretary of State will give reasons, and it always does give them, but it is not a statutory requirement.
I hope that that has covered the points raised by the noble Lord. As I promised, I shall certainly write to him on the European Convention on Compensation. That reply may be a little longer than the one I can give tonight. I am very grateful to the noble Lord for the care with which he has studied this 1052 order. It is complicated but it is important. We have examined it and I hope I have explained to your Lordships that we believe it is reasonable and that it meets the needs of the time.
§ On Question, Motion agreed to.