Human Rights: UK Application
Lord Dubs Excerpts(8 years, 7 months ago)
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Lord Faulks
The question of uniformity is difficult. Although the European Court of Human Rights maintains certain core standards, it nevertheless acknowledges a margin of appreciation for all members of the Council of Europe. We may well feel that some countries respect these better than others, but unless there is a violation of a convention right, that is a matter for the individual country.
Lord Dubs (Lab)
My Lords, it is many years since the Good Friday agreement. Surely the British Government have an obligation as regards a Bill of Rights for Northern Ireland. Have not we dragged our heels for far too long? I know that there are difficulties among the parties, but surely the British Government should take the initiative.
Lord Faulks
Once again, the question is not exclusively for the British Government. While the British Government are anxious to see the protection of human rights here, in Northern Ireland and in Ireland as a whole, it is also a matter for others.
Ministerial Code
Lord Dubs Excerpts(8 years, 7 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Ministerial Code is normally updated and reissued after a general election. The updated code makes it clear that Ministers must abide by the law. The obligations on Ministers under the law, including international law, remain unchanged.
Lord Dubs (Lab)
My Lords, it is somewhat puzzling for the Government to make quite a significant change in the code and for the Minister to say that it makes no difference. Some of us wonder why the change has been made at all—if it had not, the Minister would not have had to answer this Question and others on this. As an annexe to the Ministerial Code, there are seven principles of public life, one of which is openness. If Ministers have to show openness, why can the Government not show openness on this?
Lord Faulks
The Government are showing openness. The Ministerial Code is available for all to see. It is normal for there to be a variation of the Ministerial Code, just as there is with the Civil Service Code from time to time. For example, the noble Lord may be aware that the Civil Service Code changed from 1999 to 2006. In 1999 it included,
“the duty to comply with the law, including international law and treaty obligations, and to uphold the administration of justice … together with the duty to familiarise themselves with the contents of this Code”.
That became much shorter in 2009. The updated code says:
“You must … comply with the law and uphold the administration of justice”.
Queen’s Speech
Lord Dubs Excerpts(9 years ago)
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Lord Dubs (Lab)
My Lords, it seems only a few days ago that at least some of us were busy knocking on doors, delivering leaflets and generally taking part in the election campaign. The contrast between that and today’s debate is quite noticeable. All I would say as a result of the election campaign is that there is one bit of legislation that I would dearly like, and that is that no letterbox should be six inches from the ground. Those of us who had to bend down to push through leaflets and got our knuckles torn off by the savage letterboxes that one often finds wish that these things were done differently, and I feel very sorry for the many postmen and postwomen who have to do this daily and not just as part of an election campaign.
Before I get to the heart of what I want to say, I hope that I may be permitted to refer to a matter which is obliquely relevant to what we are about to discuss today. Five years ago the noble Lord, Lord Dobbs, joined the House. That was a welcome addition, even if it meant that there was an additional vote on the Conservative side. However, I was rather slow in realising that there were other aspects of significance to this, and the alarm bells started to ring rather slowly.
One day, soon after the noble Lord arrived in the House, I got a bill from the restaurant here. It was a pretty good meal but one which I had not eaten. Indeed, his bank manager would have been happier about the size of the bill than mine would have been. Certainly, given the success of the various editions of House of Cards, on which I congratulate him, I think that he is better able to stand those bills than I am.
But then other things began to happen. I got a phone message to call No. 10 urgently. This occasionally happened under Labour, so I called and rather foolishly gave myself away rather than listen to what was on offer. I hope that the time it took that message to then get to the noble Lord did not in any way jeopardise his career or perhaps lose him a ministerial post. Certainly, that made me think again about what was going on.
Then letters came my way, a room which I had not reserved was booked in my name, and I had letters from Members of this House congratulating me on the way I had handled the EU referendum Bill. I felt that I just could not take credit for that. I think that Labour Party policy is now changing but I did not like the Bill at the time and, certainly, to be given credit for it by several Members of this House was more than I felt I could keep quiet about.
In pondering this, I then came across a little booklet about confusable Peers. It is not for general circulation among Members of this House but is a booklet which the staff, quite properly, use to help them. I do not wish what I have said in any way to be seen as a criticism of the staff of this House. When I was in the Commons, I once was confused with Frank Dobson. Those noble Lords who know him will know that he and I do not look particularly alike. When that was mentioned in the House, we got letters of apology from senior officials. I do not want any apology because this is not about that; I just want to clarify a misunderstanding.
The booklet I got hold of is not about confusing Peers or confused Peers, which of course would be a much thicker volume, but about confusable Peers. It shows pairs, trios or quartets of Peers who can be confused with each other and the noble Lord, Lord Dobbs, and I are included. This interesting little booklet enables staff to differentiate us.
Lord Dobbs (Con)
I find the confusion remarkable. After all, my noble near-kinsman is a craggy-faced, Czech-born socialist and, quite clearly, I am not. Perhaps I may come to his rescue and settle his qualms. I have taken advice from the Garter Principal King of Arms who says that he can think of only one way of us resolving this confusion; namely, that one of us should become an Earl. I humbly submit myself to my fate.
Lord Foulkes of Cumnock (Lab)
My noble friend’s problems are nothing compared with mine. I keep getting invited to meetings of Conservative lawyers for reasons I cannot understand, but they will probably become clear when we come to the reply to this debate.
Lord Ashdown of Norton-sub-Hamdon (LD)
I wonder whether the noble Lord finds it as confusing as my case: I keep being asked for very large sums of money on the grounds that I am Lord Ashcroft.
Lord Dubs
I hope that that little interlude has helped many of us to decide where we are and who we are. I would be grateful to the House if it would allow me to intrude on the time a little.
Turning to the substance of the debate, I wish that the Government had found it possible to give time to an assisted dying Bill. I say that because, although it would not normally be done in a Queen’s Speech, it certainly seems that this Bill commands widespread public support in the country and it has passed through some of its stages in this House. It therefore would be sensible if the Government would agree to give time for such a Bill to proceed, and to accept the wishes of Members of both this House and the other place, in order to see what the outcome would be.
Many Members have already referred to the Government’s proposals on the Bill of Rights. I remember going with the Joint Committee on Human Rights to a meeting at the Strasbourg court about prisoner voting. The judges said that they were concerned that, if Britain did not adhere to a decision of the European court, it would open the way for countries with terrible records on human rights to say, “If the United Kingdom doesn’t adhere to these decisions, why should we?”. In a way, that seemed to be a much bigger concern on the part of the judges we met in Strasbourg than the specific issue of prisoner voting. I am rather sorry that we seem to have got caught in this. When the decision was made by the court, several European countries immediately allowed prisoners to have the vote. Of course, it does not mean all prisoners, but some of them.
I was very interested to hear the noble and learned Lord, Lord Mackay of Clashfern, speak a few moments ago. Perhaps he was giving the Government a lifeline. I really want to consider what he said in more detail—I am not a lawyer—to see whether it was a lifeline or a sensible way out of the dilemma. Another problem with the human rights issue is the knock-on effect in Scotland, Wales and, above all, Northern Ireland, where it is clearly integral to some of the agreements that have taken place. It would be a pity if that delicate balance were to be upset. As I understand it, the matter is devolved in Scotland and Wales and therefore we would have to override a devolved proposal.
As to the votes for life Bill, which has not been referred to, British people who are living abroad at the moment can vote only for 15 years after they have left this country. The Government’s intention is to take away that time limit. I regret this. When people have thrown their lot in with another country for many years, they are not well qualified to vote in elections in this country. The decision as to where one lives in the long term is surely a sign of one’s commitment to a particular country. I exempt from that people working in the public sector for British embassies and so on, people working abroad for British companies, and people working within the EU. However, why should we throw the right to vote to people who have decided that they do not want to live here any more or pay taxes in this country? It makes no sense.
The gracious Speech did not mention House of Lords reform but at some point we will have to move forward on that. The right answer, which has certainly been suggested on this side of the House, is that there should be a constitutional convention to look at this matter and others to do with devolution to see what needs to be done. I would like to make some progress on that. I know that there is not widespread sympathy in this House for an elected Lords but I am talking about issues which are much wider than elections, including the relationship of this House to the Commons and of Westminster to the devolved assemblies. These matters could all do with being looked at in more detail.
As to voting systems, I have always believed that the link between a Member of Parliament and his or her constituency is particularly important. That is why I thought that AV was as far as one might go. However, I am concerned—this might be another subject for a constitutional convention—about the situation in Scotland, where half the population voted for the SNP and the SNP gained virtually every seat. It is a matter not only of the number of MPs in the Commons but of the relationship between England and Scotland. If Scotland is perceived to be entirely SNP territory because of the way in which the electoral system operates, that is not good for the United Kingdom.
Let me refer briefly to the Northern Ireland Bill and the Stormont House agreement. I broadly welcome the Bill. It is important to look at the past, see what can be done and decide how one can make restitution. The Ballymurphy and Finucane cases have caused particular concern and I wonder whether they will be covered by the new arrangements. It is difficult to open an inquiry into every single tragedy that happened in Northern Ireland, but these two cases cause a great deal of concern and I wonder whether the scope of the proposed Bill will be wide enough to cover them.
I am concerned about some important matters which are not within the scope of today’s subjects. I worry about the Bill on trade unions. To make it almost impossible for trade unions to call a strike goes further than in any other democratic country and we should be very careful. I am also worried about the Government’s commitment, through legislation, that there should be no increase in income tax, VAT or national insurance. It ties the Government’s hands enormously and is not a wise move. If the Government do not want to increase any taxes they just do not increase them. Surely they do not need a Bill to keep to that commitment. As to the HS2 Bill, I picked up in the papers that the new fast train would not go to Scotland. I hope that is not true because we want to increase our links to Scotland, not cut them.
Prisons
Lord Dubs Excerpts(9 years, 3 months ago)
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Lord Faulks
The noble and learned Lord’s report on Strangeways, some 25 years ago, identified a number of things that were wrong with our prison system. I am sure that the noble Lord would agree, as indeed would the party opposite, that there have been significant changes and improvements in our prison system since. For example, there is no slopping out, there are much better conditions in cells, overcrowding is at its lowest level since 2007, prisoners are doing more purposeful activity and participate more in education, and the number of people absconding has been reduced. There is no room for complacency—there will be always be challenges in the Prison Service—but I am afraid that we simply do not accept that there has been no improvement in 25 years.
Lord Dubs (Lab)
My Lords, is the Minister seriously saying that people who are critical of private prisons are not to be allowed to visit? Is that what the Government’s policy amounts to?
Lord Faulks
It certainly does not. The Government welcome constructive criticism of all sorts. We want constructive and objective criticism by the monitoring board, the inspectorate, the press and academics—all of whom are regularly given access to our prisoners. But objectivity and fair criticism, as I am sure the noble Lord will agree, are vital.
Assisted Dying Bill [HL]
Lord Dubs Excerpts(9 years, 11 months ago)
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Lord Dubs (Lab)
My Lords, I support the Bill, because I do not wish to deny other people something that I might want myself some day in future. Some years ago, I went to see a friend of mine who had motor neurone disease. His whole family was there; he could no longer communicate, except on a keyboard, and he had assembled the family because they together wanted to ask me to support a change in the law. He died not long afterwards, but it was a heartfelt wish on his part. How could I say no to such a plea?
Recently, I was introduced to a woman who had taken her husband to Zurich. She said that the whole thing was a dreadful experience, because he was not ready to go but he was terrified lest his illness progressed to the point when he would be unable to make the journey. He wanted to die at home, surrounded by his family, instead of having to make the journey to Switzerland. That is surely another reason why the law should be changed.
On both sides of the argument, we have had very moving letters, and I find some of them very persuasive indeed. Some came from people whom I knew years ago. One letter said:
“My mother was in great pain at the end which the drugs did not remove. She was begging to die”.
Another letter said:
“Everyone should be able to choose when to end their life when the suffering becomes unbearable”.
She talks about someone close to her dying in agony. Yet another letter said:
“My personal interest is my concern at the way my father died. He had suffered for some time from a terminal lung condition and towards the end of his life his suffering became intolerable. He wanted to die but under the present law his doctors were unable to help him. After months of unnecessary suffering he died”.
I do not think that we can say to those people that we are not prepared to do anything for them. Of course, public opinion is overwhelmingly on our side; 70% to 80% of the public consistently want a change in the law.
I have enormous respect for Members of this House who take a different view and I am sorry that we find ourselves on a different side of the debate today. I am a convert to this cause. Years ago, I would not have supported the Bill either but, as I learnt more about the issues, I decided that I had no option but to change my mind. I am conscious that quite a few Members of this House have in recent years changed their mind as well; they have certainly said so to me.
I would not support this Bill unless I was satisfied that there were adequate safeguards. Today, anybody can go to Zurich if they can afford it and there are no safeguards at all; there might be pressure on them, and so on. My noble and learned friend has already referred to Oregon. There is a happy balance—“happy” is not the right word, but there is a balance—between palliative care and those who have opted for assisted dying, because they can go into palliative care knowing that at any point they can make the decision to end their lives. Because they are in control of this, many choose not to do so. Surely that is the outcome that we all wish to see.
Assisted Suicide
Lord Dubs Excerpts(10 years, 3 months ago)
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Lord Dubs (Lab)
My Lords, I am grateful to my noble friend Lady Jay for initiating this debate. When somebody is terminally ill, and probably in considerable pain, the last thing we want to do is to take away their peace of mind or the certainty of how they are going to face their remaining days. They are entitled to peace of mind, but I believe that the guidelines, helpful though they are, do not give a dying person that peace of mind and that certainty.
I am still haunted by a discussion that I had with a friend of mine shortly before he died of motor neurone disease, when he tapped out on the keyboard what he wanted. His main plea to me was to vote for a change in the law. We have heard today about slippery slopes, but I do not believe that is a good argument. All too often in this House we hear the expression “slippery slope” used as an argument against change. Surely, if we as a country have confidence in the integrity of our legal system, then if we were to change the law—as I hope we shall—we can do it in such a way that it does not represent a slippery slope but a considered change that Parliament has approved.
We have heard this evening that the Crown Prosecution Service considers every case individually. If I were to help somebody who was terminally ill and wanted such help, would I want the humiliation of having my case considered? Why should I be a case at all? Why should I not be entitled to do something, provided the safeguards are there, that is surely the right of the dying person to want from me?
Public opinion is totally on the side of change. In opinion polls the majority of people consistently say that they want a change in the law. Of course we must have safeguards, and I believe that the Bill of the noble and learned Lord, Lord Falconer, will provide those safeguards. I would not support any change in the law unless I was satisfied that we had adequate safeguards. But in voting for change, I will say this: I cannot vote to deny others something I want for myself, and that is why I shall support the Bill of the noble and learned Lord, Lord Falconer.
Freedom of Information Act 2000
Lord Dubs Excerpts(11 years, 4 months ago)
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Lord McNally
My Lords, it is true that we are looking at other aspects of the post-legislative scrutiny through secondary legislation. However, I can assure the noble Lord that my commitment, and the Government’s commitment, to transparency and freedom of information, which I see as twin tracks of government policy, remains as steadfast as it has always been. Ideas and information about other aspects of the post-legislative scrutiny fully justified the exercise and I compliment my right honourable friend Sir Alan Beith and his committee for doing an excellent job. It has done much to embed freedom of information in our political culture.
Lord McNally
It is something that was considered by Sir Alan’s committee and recommended as a good idea. It has its attractions, but it also has its downsides. On balance, the Government decided to retain anonymity for freedom of information requests because they felt that not doing so would inhibit people coming forward with such requests.
Prisoners: Voting Rights
Lord Dubs Excerpts(11 years, 7 months ago)
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Lord McNally
My Lords, the list of questions raised by the noble Baroness illustrates why this has been a very difficult issue. The issue of prisoners with mental illnesses has been looked at separately, but parallel, to this. However, the level and seriousness of illness has been a concern and that is why there are a range of options. I hope that when the Joint Committee is set up it will look at some of these issues and take evidence from a wide range of people with experience and expertise. I pay tribute to the noble Baroness’s personal expertise and experience in this area. Some serious examination is needed now based on good analysis and well informed opinion from people with experience. That then needs to be synthesised by the Select Committee into a well informed recommendation to Parliament. It is a sensible process and the indications are that all sides of the House will pay their part constructively.
Lord Dubs
My Lords, when I was on the human rights committee we visited the European Court of Human Rights in Strasbourg. It was concerned that Britain, which had previously implemented all decisions of the European court, would give encouragement to the notorious abusers of human rights around the world by not implementing this one. Will the Minister comment on that? Will he further comment on a letter dated 30 August 2011 that was sent from the European court to the British Government? The final paragraph of the letter states:
“The Chamber would therefore regard as reasonable an extension of six months after the date of the Grand Chamber judgment in Scoppola (no 3) for the introduction of a Bill to Parliament”.
Not a draft Bill; not a committee for the introduction of a Bill to Parliament. Surely we have missed the boat already.
Lord McNally
No, I do not think we have missed the boat already. In neither House have we pretended that this is an easy issue to deal with. If there was a consensus on what to do, we would have dealt with it quickly and early. However, we have conflicting views and we are taking this forward.
I agree with the noble Lord on one thing. I heard Mr David Davis in the other place say that what we do on this would be a precedent, and he is quite right. If the United Kingdom were to decide on a “pick-and-mix” attitude to the rulings of the court and the application of human rights, others would gleefully grab that example when we try to take them to task. I did not agree with the noble Baroness when she was rather dismissive of the progress we made in Brighton in reforming the court. I do not think that anybody has denied that the court needs reform and we made great progress there that is ongoing.
The most significant thing for me was the day after the declaration was signed when the Attorney-General hosted a tour de table where each of the responsible Ministers from the Council of Europe gave an explanation and a justification of how they were implementing the convention. Here was a Russian Minister—I know Russia is not perfect—explaining and justifying its stewardship of the ECHR. I am old enough to remember meetings with the old Soviet Union when any attempt to raise human rights was taken to be an interference in its internal affairs and could not be discussed. I consider it tremendous progress by the convention and by the Council of Europe.
Justice: Indeterminate Sentences
Lord Dubs Excerpts(11 years, 7 months ago)
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Lord McNally
My Lords, one of the things that we have been discussing with both NOMS and the Parole Board is moving away from a system of box-ticking specific narrow training programmes to a more flexible judgment about whether a particular prisoner is suitable for release. Giving both NOMS and the Parole Board greater flexibility in treating, assessing and managing these prisoners will enable the Parole Board to make a balanced judgment, at the right time, about whether these prisoners should be released.
Lord Dubs
My Lords, does the Minister agree that when these sentences were first brought in, nobody expected that they would apply to more than a very small number of exceptional cases? Since then, they have been used on a wide scale. Does that not cast doubt on the propriety of keeping these people in jail beyond the sentences they would otherwise have had?
Lord McNally
Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Dubs Excerpts(12 years, 5 months ago)
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Lord McNally
I have been trying to keep that quiet. The paper I mentioned was one of nine papers that I took in 1962 for my economics degree. The other day I found the statistics paper, which evidently I had passed. However, not only did I not know the answers to the questions, I could not understand the questions.
Lord Thomas of Gresford
I apologise for wearying your Lordships once more. The amendment would ban the practice of third-party capture life insurance companies. Third-party capture is something with which many people, including many insured people, will not be familiar, but I have heard about it. Frankly, it is a nefarious practice.
The amendment would ban an insurance company—we are talking about banning in this amendment, not regulation—from directly contacting third parties who have been involved in accidents. That is currently commonplace behaviour following road traffic accidents. An accident happens, two drivers exchange with their details, driver A submits full details to his or her insurer and that insurer contacts driver B and offers an early settlement, usually at a much lower rate than would be achieved through due legal process. Insurers frequently make offers to accident victims that are far lower than the claim is worth, denying a person who has suffered an injury caused by someone else the redress that they deserve. They frequently make settlement offers without proper medical examination to ascertain the full extent of the injury, again denying the accident victim real evidence-based representation.
In this way, insurers seek to close off a claim without offering accident victims the opportunity to seek independent legal advice. There is obviously a conflict of interest. Insurers are acting both for the defendant, their policyholder, and the accident victim. Given that the insurers’ primary objective is to minimise the level of payments, they have little interest in securing a fair deal for accident victims.
There is another, equally unpleasant practice carried out by insurance companies where they contact a third party who has been injured in an accident with one of their policyholders and suggests that he or she makes a personal injury claim through their legal services arm. Other insurers simply refer the case details on, at a price—we will be dealing with referral fees shortly—to an independent personal injury lawyer. That is a major revenue stream for insurance companies, but it overrides common sense and is a substantial conflict of interest for insurers.
Since I tabled the amendment, I have been approached by the Association of British Insurers. It has kindly sent me its code of practice. The ABI code of practice for third-party assistance occupies some 11 pages, unlike the two-page code I was referring to in the previous amendment, and presents advice for insurers on how to contact unrepresented claimants, what they are to say to them about the injuries that they have received, how they are to deal with the damage to their vehicles and how to hire other vehicles. A section headed “Managing the Relationship” says:
“This section sets out how the insurer will manage the relationship with the unrepresented claimant where they have agreed on a provision of services, and covers where a claimant goes from unrepresented to represented”.
It sets out the policy, how to arrange medical treatment and so on. I suppose that in one way this could be said to be good practice. If the insurer is to be allowed to interfere with the other side in this way and to make offers of settlement, it is good practice to advise him to get a proper medical report and so on, as the ABI code says. However, there is absolutely nothing to enforce it. An insurer—and there are many insurance companies—may have a copy of the ABI code of practice but there is nothing to require him to adhere to what it says. Therefore, not only can the insurer ignore the provisions of his own code of practice but he can directly approach the other side. That is what my amendment seeks to prevent. I beg to move.
Lord Dubs
My Lords, I should like to speak to Amendment 164ZA in my name and give my support to Amendment 164, which has just been moved by the noble Lord, Lord Thomas of Gresford.
The Bill contains a series of proposals that attempt to dent access to justice for people who have suffered harm. It reduces their damages quite dramatically by taking away the recoverability of success fees and “after the event” insurance premiums. The referral fee ban may go some way to curbing the abuses of some claims management companies, but it will also sweep up many organisations, including important victims’ charities and membership organisations, that do a lot of good hard work in ensuring access to justice, and it will do nothing to curb some of the abuses that have inhibited access to justice.
The noble Lord, Lord Thomas, referred to third-party capture. What is it and why is it so controversial? Perhaps I may quote from the Financial Services Authority’s guidelines on third-party capture:
“Third-party capture (or third-party assistance) is when an insurer deals directly with a person who has a potential claim against their policyholder, in order to investigate and settle the claim. Typically, an insurer offers a compensation payment to settle the claim directly to a third party, rather than settling through a legal representative for that party. This is mainly used for third-party motor claims. But sometimes it’s used in other types of insurance, such as employers’ liability.
Concerns have been raised by industry bodies and consumer groups that this practice could mean third parties do not receive fair and reasonable treatment and compensation.
The handling of all insurance claims by insurers—including third-party claims—is regulated under the Financial Services and Markets Act 2000. This means that an insurer’s conduct towards third parties must comply with our Principles for Businesses and, where relevant, the claims handling rules in chapter eight of our new Insurance Conduct of Business Sourcebook ... Complying with our Principles for Businesses includes acting with integrity, due skill, care and diligence and observing proper standards of market conduct”.
The trouble is that that is not how it works in practice, as the noble Lord, Lord Thomas of Gresford, has clearly shown.
The system is used by insurers, in their drive to maintain and increase profits, to collect premiums but reduce the amounts they pay out. In short, the insurers want to be their own judge and jury. The system should protect legitimate claimants who may have suffered great harm and be in great mental anguish and who are therefore susceptible to an approach that undermines their rights but ends the process quickly. They should receive what the law says they are entitled to, not what the insurance company says it is prepared to pay, and there is a big difference between the two. In the old days, it was not unusual for the same solicitor to represent both purchaser and vendor in a conveyancing transaction. Of course, there were clear conflicts of interest and major problems as a result. Thankfully, that practice no longer occurs.
Third-party capture has the same risks to consumers attached to it. The insurer, who has a responsibility for paying out on a claim, also decides how much to pay, more often than not on the basis of no, or inadequate, medical evidence and without the claimant having the benefit of legal advice. There could not be a clearer conflict of interest between a big insurance company playing the numbers and an unrepresented, unadvised claimant, but the great irony is that insurers end up actively encouraging claims with the direct approach of offering to settle quickly without the purported inconvenience of a medical examination.
A further irony is that the idea of putting forward a whiplash claim can be put in the mind of a claimant when they had not originally thought of claiming. Of course, the newspapers are full of such behaviour. The insurers are, in some respects, playing the numbers. They think that if they can buy off 10 whiplash cases for, say, £1,000 or so—even if some of them are, dare I say, fraudulent—it will cost them less than paying out the correct compensation to properly advised claimants on, say, four or five of them. That benefits insurers significantly. It can be no surprise that that has led to an increase in low-value whiplash claims and the undersettlement of more serious claims.
The insurance industry and the personal injury industry have been playing games for too long at each other’s expense. The result has been that genuine victims of harm lose out—and lose out significantly. Third-party capture is a damaging practice and I urge the Minister to accept either this amendment or the other one.
Lord Neill of Bladen
I support this amendment. The practice that it outlaws seems to be absolutely disgraceful, with an insurance company being paid by its own side—by the defendant—and then approaching the plaintiff to try to do a cheap deal with him for the benefit of the defendant. It seems to me that the conflict of interest is so gross that it ought not to be permitted at all. I am a little surprised by the words in the amendment, which mention knowing that the plaintiff is represented, because I am not quite sure how the amendment would cover a situation where the plaintiff had no representation. When thinking about how one would refine the language, I think one might consider taking out that qualification, because, with a general ban on this practice, your Lordships would simply agree with the amendment.