Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Keen of Elie]

If every time we legislated we decided to guarantee everything from A to Z, we would end up with very long Bills. The position is this: there is the ability to proceed by way of the paper process. Nothing prohibits it, there is no inhibition on that process, and there is no intention to introduce such an inhibition.

Turning to Amendments 10 and 11—

[Lord Mackay of Clashfern]

Before my noble and learned friend leaves Amendment 3, I understood him to say he would accept it, so that it would go into the Bill—although without, I hope, the choice of the combination.

[Lord Keen of Elie]

No, I do not accept the amendment. What I say is that there are existing means by which we can assure people that they can proceed by way of a digital portal or by way of a written claim, which will be scanned and taken into the online procedure process once it is up and running.

--- Later in debate ---

[The Earl of Listowel]

My Lords, before that happens, I express my apologies for not being able to take part at Second Reading. I thank the Minister for asking his office to contact me and I am sorry that I delayed replying until Friday. I just want to comment on the family test. This was introduced in 2014 to be applied to Bills and involved a number of questions such as, “What kind of impact might the policy have on family formation?” and “What kind of impact might it have on stability in the family?” Although the test is not mandatory, this seems an appropriate Bill to have had it applied to, and I simply express the wish that in the future it might be applied to Bills similar to this one.

[Lord Mackay of Clashfern]

My Lords, I have some difficulty with Amendment 1 and the answer that my noble and learned friend has given. As I understand it, the amendment deals with rules. It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that. He will say that he is sorry to whoever comes along with a bit of paper and explain that they are not able to do that because the rules dictate that it has to be done by electronic means, so they will have to get themselves a computer.

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

Suicide Act 1961: Prosecutions

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Thursday 23rd May 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not in a position to comment on all surveys because that may embrace ones of which we are not aware. The Government have always taken the view that this is a matter of individual conscience and for Parliament to decide, rather than one of government policy.

[Lord Mackay of Clashfern (Con)]

My Lords, noble Lords will remember that I chaired a committee of the House on this issue many years ago. Is it possible to take account of the suffering that may be experienced by vulnerable people, surrounded in their weakness by relatives whose interests may not be completely in the best interests of the vulnerable person? That is a serious risk to be taken into account. On the other hand, the Director of Public Prosecutions has issued very clear guidelines on these matters, in accordance with a requirement from what was then the Supreme Court, in his jurisdiction.

[Lord Keen of Elie]

The noble and learned Lord is entirely right. The Director of Public Prosecutions has issued very clear guidelines, which address not only the evidential test but the public interest test that arises in such a complex and difficult area. That is why we see the need for a careful and balanced approach to what is, at the end of the day, an issue of conscience.

Brexit: Legal Position of Withdrawal Agreement

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Monday 3rd December 2018 Lords Chamber

[Lord Keen of Elie]

With respect to the noble Baroness, the then First Minister’s record on when he did and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.

[Lord Mackay of Clashfern (Con)]

My Lords, it has been the legal position for many years that when a legal adviser advises a client, that advice is confidential. It is not for me to criticise what went on earlier in the other place, but it seems to me that it had forgotten that the Attorney-General has an absolute duty to advise the House of Commons. It could have asked him to do so and answer any questions of law that it could think of putting to him. That is the correct way to deal with such a matter. Reference has been made to what happened in the past, which I believe was very much in accordance with that.

In my view, it is impossible as a matter of law for the legal adviser to say that he will publish legal advice which has been given to someone else in accordance with an obligation of confidentiality. So far as the Government and Parliament are concerned, that is no disadvantage, because they have the advantage that the Attorney-General is the adviser of the House of Commons—as he is the adviser of this House also. He is bound, in connection with that advice, to answer any questions that may be put to him on the relevant law. I cannot see any better system than that for reconciling the two fundamental problems about the position of a legal adviser.

The Attorney-General is responsible for keeping that confidentiality unless the client thinks the advice can be disclosed without any problem, but that depends on the nature of the arrangement. So far as I am concerned, by far the best arrangement is that the Attorney-General personally comes to the House of Commons and gives his advice, answering any questions that are required. That is what happened, as far as I understand it, today. There are enough problems with this Brexit business, which we are going to discuss over three short days in due course, without trying to complicate them with material about the conventions of the UK that, as far as I know, have lasted a long time and been extremely satisfactory.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, this is an important question. It is just possible that Clause 8 could be used by the courts in a situation arising under this particular amendment to extend the provisions of Clause 8 by analogy, where that seemed suitable. As the noble Lord, Lord Pannick, mentioned, fitting this to everything is quite difficult. On the other hand, for a court faced with a single problem, this way of solving it might be possible. Anyway, I am entirely in support of what the noble Lord, Lord Pannick, said about Ministers determining this sort of matter; I do not believe that that can be right. However, I do not think the court would fail, if faced with this problem, in deciding something about it.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the noble Lord’s amendment endeavours to provide a global answer to the question of whether retained direct EU legislation should have the status of primary or subordinate legislation—if and to the extent that is relevant. I am grateful to him for the engagement he has had with the Government throughout the passage of this Bill, especially in recent days. Let me say to the House that the Government understand that there is a desire that these new forms of law should be assigned a particular status. We are sympathetic to that view, which stems from a desire for clarity in the law. Of course, clarity is indeed highly desirable. The Government have gone to great lengths to try to make provision in the Bill for how retained direct EU law should be treated. The Bill addresses treatment of retained EU law by the Human Rights Act, the Interpretation Act and rules of evidence, among other things. That is an important part of this Bill. Our provisions on the principle of supremacy deal with the situation where pre-exit domestic law conflicts with retained direct EU law; our amendments on Report deal with amendability; and other provisions with validity challenges where the aim of the Bill is continuity.

On this specific issue of challenges to retained direct EU law, paragraph 1(1) of Schedule 1 states that:

“There is no right in domestic law on or after exit day to challenge … on the basis that, immediately before exit day, an EU instrument was invalid”.


As retained direct EU law under the Bill will owe its incorporation into domestic law to primary legislation, it will not be possible to challenge its validity using domestic public law principles. However, as is currently the case, any post-exit Act by a public authority under direct EU law will be susceptible to judicial review, and the Bill does not restrict the use of other routes of challenges, such as breach of statutory duty or challenges under the Human Rights Act. But the crux of our approach and our concerns with the noble Lord’s amendment is that there is no such thing in domestic law as the “status of primary legislation” or the “status of subordinate legislation”. There are many different types of both primary and subordinate legislation. For each of those types of law, there are many different rules about how they are to be treated for different purposes. Whatever we took as our model for how we wished to deal with retained EU law and how it should be treated, we would need to consider each of those different purposes and ask whether that model truly worked in each context.

My submission today is that while the pursuit of a simple rule is laudable, in practice the clarity it would purport to give would be illusory. It would raise more questions than it answered and, ultimately, it would be bad for legal certainty. I will, if I may, seek to illustrate what I mean—the noble Lord himself touched upon this. If we take the status of, for example, primary legislation, we are aware of at least five different types of primary legislation: Acts of this Parliament, Acts of the Scottish Parliament, Acts of the Welsh Assembly, Acts of the Northern Ireland Assembly and, indeed, Northern Ireland Orders in Council. Each is treated differently for different purposes; that is to say, it has a different “status”. Furthermore, to the extent that provision is made that provides that retained direct EU legislation is to be treated in the same way as an Act of, for example, the Scottish Parliament, as a matter of course the Government would want to engage with the devolved Administrations before making such a provision.

The so-called status of a particular type of legislation is not encapsulated in a single line or by reference to any simple rule. To take just one example, when this Parliament created the concept of an Act of the Scottish Parliament, it set out in the Scotland Act a number of rules, including how such Acts are made and in what circumstances and with what consequences they can be challenged. Nowhere did it try to define those rules by simply saying that Acts of the Scottish Parliament should have the status of any other existing form of legislation. What was right then is, I submit, right now. Once again, we are creating a new category of law. It needs its own rules, rather than being forced into an existing and ill-fitting set of rules made for another type of legislation.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Committee: 2nd sitting (Hansard): House of Lords
Tuesday 15th May 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to my noble friend Lord Hodgson for setting out the background to this matter. His Amendment 55 would require what he referred to as new rules of court to be made that highlight features of periodical payment orders which may make them a more appropriate way for a person with a long-term injury to receive an award for damages for future care costs. I understand that Amendment 55 and the other amendments in this group are essentially probing amendments.

“Rules of court” in Amendment 55 means the Civil Procedure Rules. The purpose of the Civil Procedure Rules—and, indeed, all rules of court—is to govern the practice and procedure of the court and the parties in court proceedings. This may be a technical issue but that does not detract from the importance of ensuring that claimants who have suffered long-term serious injuries are well informed as to the implications of their choice between a lump sum payment of damages and a PPO. I am conscious of the point made by the noble and learned Lord, Lord Mackay of Clashfern, about the care that the Executive must always exercise in circumstances where it may be perceived that they are giving directions to the judiciary. I will explain why the Government therefore take a more modest approach to this issue but one which they feel will be effective.

Of course, some Civil Procedure Rules have been made in relation to the exercise by the court of its powers under Section 2(1) of the Damages Act 1996 to order that all or part of an award of damages in respect of personal injury is to take the form of a periodical payment order. These rules already require the court to consider all the circumstances of the case, as well as the preferences of the claimant and defendant and the reasons for them. I appreciate that there are instances in which PPOs may not be available; for example, a mutual insurer such as the Medical Defence Union would not be considered sufficiently well reserved to meet future liabilities. I appreciate also that there have been reservations among insurers about the use of PPOs because of the way in which they are required to reserve for them and the capital requirements related to that.

PPOs are certainly in principle considered a better form of taking compensation for future loss than a lump sum because they provide strong protection for claimants who may be concerned about the return on a lump sum. This Government certainly support their use. At the same time, we must keep in mind that the person behind a claim has a choice and is entitled to make one in such circumstances. We consider it important that claimants making a choice in these circumstances should be properly informed, irrespective of whether their particular case reaches such a stage that the court has to consider whether to order a PPO. Of course, not every case will reach the court; many will be settled before that and, at an earlier stage, claimants have to be properly informed as to which option they should adopt.

I note the point made by the noble and learned Lord, Lord Judge, with which I entirely agree. It is perhaps moot to say that no estimate of life expectancy is ever precisely accurate because they are just that—estimates—and one takes that out of the equation where you have a PPO.

The Government remain fully committed to ensuring that appropriate advice is available to claimants in all cases and stand by the commitments they made to action in their response to the Justice Select Committee. To pick up on the points made by the noble and learned Lord, Lord Hope of Craighead, the point made in paragraph 50 of the response to the JSC was a concern to ensure that guidance was provided to individual claimants. It is our intention to put in place appropriate guidance and to ensure that it is available. We aim to do that by the end of 2018. In addition, we are investigating whether current advice received by claimants on the respective benefits of lump sums and PPOs is effective, and whether there are other ways in which the use of PPOs could be increased within the present system. At present, we intend to complete this work by the summer of 2019.

I hope that goes some way to meeting the concerns expressed by the noble Earl, Lord Kinnoull, on these matters. He raised a further question on indexing and I think the noble Lord, Lord Monks, touched on this. The reason that the ASHE 6115 index is taken is that it is the specific care costs index. It may be that wage costs have not increased at the same rate as the wider RPI, which may explain the discrepancy the noble Earl pointed out. However, the ASHE 6115 index is a specific care costs index, which is why that has been employed in the past.

Amendment 92 would require the Lord Chancellor to conduct a review of the impact of setting a new discount rate on the extent to which PPOs are made by the courts, but within six months of the provisions in Part 2 of the Bill coming into force, and then to publish a report of the results within 18 months of commencement. As the noble Lord, Lord Beecham, hinted, that may be far too tight a timescale to produce an effective report. We certainly do not consider that a requirement to carry out a review of this nature at the time proposed would be particularly informative. That is because the first review of the rate under the Bill would probably not have been completed by the time at which completing the review under this amendment would be required. Effectively, that would mean that the review would have to focus on any impact that had resulted from the setting of the rate as of March 2017 under the present law, which was a rate of minus 0.75%. I suppose that such a review may, however, be of limited use given that the legal framework for setting the rate would have changed but I suspect that it would tell us only something about the past, not the future.

I also observe that the settlement of major cases can take some years to agree, whether or not they arrive at the door of the court, so it might be some time before there is sufficient evidence to draw meaningful conclusions about changes in claimant behaviour. We do not yet have the statistical information about the effect of the March 2017 change in the discount rate on the use of PPOs. We therefore do not know whether the lowering of the rate has diminished the take-up of PPOs, although there is certainly some anecdotal evidence to that effect. It is logical to assume that this would occur, given the size of the change that took place in March 2017.

The evidence from the previous four years does, however, suggest that the use of PPOs is concentrated in the most serious and long-term cases, with the propensity to use them increasing with the size of awards up to about £5 million. They are not really employed in cases where the award of damages is lower than £1 million. That is largely because the use of PPOs is concentrated on provision for future care costs—long-term care costs, generally in cases of catastrophic injury. That is why there is a large percentage of cases in which PPOs are not considered appropriate. The National Health Service pays out PPOs in about 70% of awards over £1 million, while the equivalent figure for insurers is only about 36%, and there may be further work to be done. That is why we are going to look at the question of further guidance in order to encourage their use. Certainly, the take-up is far from negligible in serious cases.

On the comment of the noble Lord, Lord Beecham, this is not just about funding clinical negligence claims by the NHS. It goes far deeper than that; it is about ensuring fairness between claimants and defendants in the difficult process of assessing damages, particularly damages awarded for future care. I do not accept the noble Lord’s general point that we are simply trying to move the cost of future care from victims to somewhere else. That is not what we are about; this is concerned with ensuring fairness between claimants and defendants.

I have spoken about the way in which the amendments would require some sort of review. Amendment 92A would also require such a review to assess whether the fact that a PPO may be uprated by reference to an inflation index other than the retail prices index is having an impact on the relative merits of PPOs versus lump sums in the context of a revised discount rate. That would go beyond a consideration of the impact of the discount rate to the overall level of damages award, and how individual elements may be indexed for inflation. At present, the index used for PPOs is a very specific care cost index rather than the RPI.

We will, as I have indicated, be taking forward a range of initiatives to encourage the use of PPOs and to ensure that claimants are properly advised when choosing the form of their award. We hope to have the first part of that process completed by the end of 2018 and the wider investigation completed by the summer of 2019. We believe that those practical steps will encourage the use of PPOs where appropriate—we will, of course, monitor that—and create a situation in which a review requirement, such as that envisaged by the amendments, will not be necessary. Indeed, it would be more appropriate to move in this direction rather than find ourselves in the somewhat invidious position of the Executive sending out directions to the judiciary about how it should approach the award and determination of damages in such serious cases.

With that explanation of the Government’s position, I hope the Committee will be reassured that we are committed to effective action to encourage the use of PPOs. On that basis, I invite the noble Lord to withdraw the amendment.

[Lord Mackay of Clashfern]

Before my noble and learned friend sits down, I understood the noble and learned Lord, Lord Woolf, to have suggested that a PPO could be reviewed as the instalments were going ahead. That would be something of an innovation but it might be worth considering. I do not know whether my noble and learned friend has that in mind.

[Lord Keen of Elie]

We do not have that in mind. One of the concerns about such a proposal is the impact it would have on the insurers and their inclination to embrace PPOs. At present they are concerned about their reserving liability and their capital requirement on the basis of risk when it comes to a PPO. If we were to add to that equation the possibility of the PPO being revived at some indeterminate point in the future, I believe it would have a counteractive effect on the employment of PPOs by insurers. I have noted what the noble and learned Lord, Lord Woolf, said; I will take it away and consider it further, but my initial reaction is that it could act as a disincentive for the operation of PPOs.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I want to say just one thing about the nature of the Lord Chancellor’s judgment in this case. The noble Lord, Lord Cromwell, said that the Lord Chancellor is acting on behalf of the Government, but that is not the nature of the decision: it is the Lord Chancellor’s decision as representing the Lord Chancellor himself. He has the responsibility of a personal decision in this matter, in the way this Bill is drafted. Certainly, when I had responsibility for these matters, it never occurred to me that I should consult the Cabinet about it.

[Lord Keen of Elie]

My Lords, I begin by acknowledging the point made by my noble and learned friend Lord Mackay of Clashfern. The Bill makes perfectly clear that this is a decision of the Lord Chancellor as Lord Chancellor, and it is in that context that it has to be seen and understood.

Amendment 61 would replace the proposed three-year maximum review cycle for the second and subsequent reviews of the rate with a system under which the need for the rate to be reviewed would be determined by the expert panel by reference to changes in returns on investment. Of course, there are then consequential and supplementary amendments. The effect would be to add a new and distinct responsibility to the role of the panel. It would in effect, as I believe my noble friend Lord Hodgson acknowledged, require a standing panel to be created. If more than a year had passed since the rate was reviewed, the expert panel would be required to assess the need for a review and then to advise the Lord Chancellor to review the rate if it considered that the nature of return on investment had changed enough to justify a review. If the panel decided that this condition had not been satisfied, it would have to report its reasons for this view to the Lord Chancellor.

The concept of a review based on changes in investment returns was canvassed as an alternative to a fixed review period in the Government’s 2017 consultation on how the rate should be set, and it was supported, let me be clear. However, basing the review requirement on changes in investment returns would, we believe, create more uncertainty and be less predictable than a regular fixed-date review. The introduction of a requirement for the panel to consider the need for a full review annually could further fuel such uncertainty.

I appreciate the concerns raised by the noble Lord and others at Second Reading about the potential for a fixed review period to prompt undesirable litigation behaviour and the possibility of what is sometimes termed the gaming of the system in anticipation of a change to the rate. However, this problem would not be avoided by the system which the amendment proposes. Litigants would still know when the panel would be required to consider whether the rate required reviewing. Indeed, such occasions would be more frequent under the amendment than under the three-year cycle proposed in the Bill. One can imagine a stop-start mentality emerging leading up to the time when the panel was expected to report.

A further consequence of the amendment would be that the expert panel would have, in practice, to exist independently of the review of the rate, rather than being convened by the Lord Chancellor for each review, as the Bill currently provides. In effect, a standing panel would be required, which would have to exercise judgment as to the timing of reviews, rather than confining itself to the technical matter of advising the Lord Chancellor on the factors that might be considered in the setting of the rate, which is the purpose of the expert panel. The amendment would therefore make a very significant change to the proposals in the Bill regarding when the rate should be changed. The Government’s proposals for a fixed-period maximum cycle for the review of the rate have, as I say, been developed through consultation and been the subject of pre-legislative scrutiny, and we consider that they provide a simple and certain method by which reviews can largely be predicted.

Amendment 74 would require the Lord Chancellor to adopt any recommendation from the expert panel as to whether the rate should be changed and, if so, what the rate should be. Clearly, such a change would diminish significantly the responsibility and accountability of the Lord Chancellor for any review outcome—indeed, it would essentially remove it. Amendment 74 would also remove the requirements on the Lord Chancellor, the panel and the Treasury set out in paragraph 2(6) and (7) of new Schedule A1 to comply with or to take into account the duties of the Lord Chancellor in relation to the setting of the rate that are set out in paragraph 3 of new Schedule A1. What we would have is the elevation of the panel from an advisory role to essentially an executive role. That would be a major change and clearly greatly alter and increase the role of the panel.

The creation of the expert panel to advise the Lord Chancellor is, of course, one of the most important changes introduced by Clause 8. The panel is central to the Government’s proposals for the way in which the rate is set, introducing new expertise and transparency. The panel will play a very important role in providing assistance to the Lord Chancellor in setting the rate, but it would not in our view be appropriate for the panel’s recommendations to bind the Lord Chancellor in deciding whether the rate should change and what it should be. The setting of the discount rate requires the weighing of different potential outcomes for individuals in relation to a range of possible rates. An element of value judgment will ultimately be required. It is important, therefore, that the decision-maker should be politically and publicly accountable for decisions on the rate. That is why the Lord Chancellor is, in our view, the appropriate person to make that choice. Indeed, this was recognised by the Justice Select Committee, which stated in its report that:

“Setting the discount rate has repercussions on the taxpayer through Government expenditure and also consumers through its impact on insurance premiums and inflation; therefore we think it is right that the decision to set the discount rate lies with the Lord Chancellor”.


We agree with that assessment.

In addition to being influenced by the pre-legislative scrutiny carried out by the Justice Committee, the proposals we have put forward have been developed through the public consultation process. In response to the question of by whom the rate should be set, the largest single group of support was for the rate to be set by the Lord Chancellor following advice from an expert panel. I note the support for that which has been given, in particular, by my noble and learned friend Lord Mackay of Clashfern, expressing his experience as Lord Chancellor and underlining the distinct role of the Lord Chancellor in this context.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Committee: 1st sitting (Hansard): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I thoroughly agree with the proposition that is highly desirable for the definition used as the basis for later provisions in this part of the Bill to be on the face of the Bill. The difficulty I have had so far is in identifying what we want to do. It is the area of exaggerated claims, or something of that sort, that underlies the Government’s proposals. I agree that it must be, ultimately, a medical definition, because a medical report saying that you have this injury is an essential requirement for you to come under this part of the Bill.

The difficulty, however, is that the doctors have to know where these exaggerations take place. I have been instructed by people who suggest that if you go for the back, and the rest, you are extending the thing beyond the real position. I have, therefore, some sympathy with the amendment restricting that, which I think is to be moved or spoken to later. I do not, however, profess to know exactly what the problem is, in the sense of the area of medical expertise that is being used by the claimant industry to exaggerate claims. That is their idea: to exaggerate these claims and ask for more than they are worth. As I said at Second Reading, I have some experience long past of the difficulty of actually quantifying the correct amount for these injuries, particularly if they are serious—and they can be quite serious, I think. This is my problem and I would be glad of help when the Minister comes to speak.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged for all the contributions that have been made so far this morning. I observe that it appears to be generally recognised that the Bill is addressing a very real issue about which policy decisions have to be made and implemented. I quite understand the question raised about where the definition of whiplash injury should appear. The definition in the Bill seeks to limit injuries to those soft tissue injuries that affect the neck, back or shoulder and arise from road traffic accidents. The vires in the Bill are tightly drawn to enable regulations to be made by the Lord Chancellor that would apply only to a discrete number and type of injury.

It is interesting to see the diversity of amendments that have come forward this morning. That may underline the particular challenge we face in arriving at a suitable definition, be it in the Bill or in regulation. We have sought to address an issue that involves reconciling a legal understanding of this matter with a medical definition—one which covers both injury and the symptoms of injury. That involves us engaging with not only medical expertise but a degree of legal expertise. In addition, while I am not going to go through the detail of every amendment, because I understand what lies behind them, I will note this much. The noble Earl, Lord Kinnoull, set out three points for consideration, and in doing so underlined the very real problem that we need to address here. It was emphasised by the suggestion that if you go to a particular claims management site you are encouraged to believe that even if you have no symptoms you may still have a claim.

I was reminded of an incident some years ago where I was acting for an American pharmaceutical company. The US attorneys showed me a photograph of a genuine roadside sign that had been erected in the state of Mississippi. It said, “If you’ve taken drug X and suffered a fatal heart attack, telephone this number”. The lengths to which we lawyers will go know no bounds, and our belief in the Almighty is always there. There is a very real industry out there. I do not use the term “racket”, but others have—and with some justification.

Looking to the current position, the noble Lord, Lord Sharkey, correctly observed that the regulations that we have produced in draft to elaborate the definition of whiplash injury have only just appeared. I quite understand the need for noble Lords to consider those regulations in more detail. In turn, I will consider in more detail whether we should incorporate a more precise definition in the Bill. But I stress that, even if we were to take that step, it would be necessary for us to bear in mind the ability of government to proceed by way of regulations to support any definition in the Bill. We are well aware that flexibility will be required with regard to any final definition so that we can meet the way in which claims development occurs—the way in which this sort of market develops—in order to put limitations on claims.

At the end of the day, the detailed definition of whiplash injury will need to reconcile the current legal understanding with an accurate medical definition covering both injury and symptoms. Our aim is to achieve that objective, but to what extent we achieve it by incorporating the definition in the Bill is not a matter on which I would take a final position. I quite understand the suggestion that we should consider further the extent to which the definition can appear on the face of the Bill, and also allow noble Lords the opportunity to consider the scope of the draft regulation that has only recently been made available. In the light of that, and understanding that these are essentially probing amendments, I invite noble Lords not to press them at this time.

Crown Prosecution Service: Disclosure Procedures

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Monday 29th January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I certainly agree with the indication that it would be disproportionate for a victim or complainer to have to disclose the entirety of their social media communications. It would be intrusive and inappropriate, and would impact upon the willingness of complainers to come forward in particular circumstances, so there has to be a balance. It would also raise very real data protection issues, so we have to take account of that. As regards a protocol, we are reviewing protocols in the context of disclosure, and I noted what the noble Lord said about a keyword search.

[Lord Mackay of Clashfern (Con)]

My Lords, is it feasible for the police to ask the complainer whether they have commented on the relationship in question in any media? I do not mean that they should give any detail, but at least it would alert the police as to whether it was worth looking at. Secondly, it is over 32 years since I had responsibility for these matters in Scotland, but I wonder whether there is any suggestion that this problem exists there.

[Lord Keen of Elie]

I am obliged to my noble and learned friend for his observations. On the police inquiries, as I understand it there is no reason why the police should not make appropriate inquiries of a complainer with respect to her social media and other communications that might be relevant to a particular complaint. In addition, the defence have to submit a schedule outlining their own case, in which they will have the opportunity to identify from the police schedule of material that has been recovered that which should be disclosed for the purposes of trial. On whether a similar issue has arisen in Scotland, disclosure is an issue in all jurisdictions; it is a question of how it is handled. Here we are concerned with the handling issue, not a resource issue.