Civil Liability Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Judge (CB)]

Perhaps I may add a few words. Of course the definition of whiplash has to be made by doctors—that is how the world works—but we are engaged in legislation. This word must have a legal meaning and it must be enshrined either in a statute or in regulations. The Bill approaches the problem by putting the legislative cart before the legislative horse. If we are being asked to enact legislation in which we do not know precisely what the word means, we are being asked to do something that we should not be asked to do.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, perhaps I may add to what the noble Baroness, Lady Berridge, has just said. I agree with her and stress that this is not just a case of racketeering lawyers. One problem that we need to grapple with at this stage of the Bill is that the cold-calling racket and the encouragement of claims comes from claims management companies as well, often from abroad. They can also come from those who offer free hire cars to those who will pursue claims, and they can add a personal injury claim. The same applies to people who repair cars. There is all that potential for racketeering to jack up these claims, and we accept that there is a very serious problem.

I come back to the point about the definition. I agree with all those speakers who have said that the definition has to be in the Bill. The noble and learned Lord, Lord Judge, very concisely just explained why it has to go in the Bill and why it is insufficient for it simply to be in draft regulations at this stage.

Perhaps I may say a word or two more about the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra. I served on it for three years when my noble friend Lady Thomas of Winchester chaired it. The general practice then was for the Government to accept the recommendations of that committee. We took the responsibility of considering the delegated powers in every Bill that came through this House extremely seriously and in an almost entirely non-partisan manner. We were guided and assisted by clerks who were astute to ensure that their advice was based on precedent and on principles, and the principles were published.

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[Lord Keen of Elie]

With great respect, the relevant text can be judged, because the requirement is that a person should take reasonable steps to secure those services where they are required. If they are not available then that is an answer to the point.

May I move on to Amendments 27A and 49A, on the course of employment? I have to confess that, on this matter, I am inclined to side with the noble Lord, Lord Bassam. It appears to me, with due respect, that there is perhaps a misunderstanding here. If we look at Clause 1(3), we see that it is concerned with a situation in which a person suffers whiplash injury “because of driver negligence”. Whether a person is in the course of their employment or not, if they suffer a whiplash injury because of driver negligence, the third-party driver’s negligence will be responsible for the injury and, therefore, the insurer of the third-party driver will respond. If, on the other hand, the injury is the consequence of the driver himself, then he will have no claim, because you cannot claim in respect of your own negligence. In neither event would there be a legitimate basis for claim against the employer. It is for that reason that we do not consider it necessary to exclude a group to that extent.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the Minister, but is that the point? The point of these amendments, as I understood them, was to exempt those who drive in the course of their employment from the rigour of the new provisions of this Bill when they are claimants, so that the claimant in the course of his employment has a legitimate claim. We may assume it is a legitimate claim because, as the noble Baroness, Lady Berridge, said, it would have to be backed up by the employer’s evidence saying, “This claimant, driving my lorry on a perfectly legitimate delivery, was injured”. It is the claimant who counts, not the defendant.

Civil Liability Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

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

[The Earl of Kinnoull (CB)]

My Lords, I congratulate the noble Lords, Lord Sharkey and Lord Marks, for framing a good debate in this important area, and I thank the noble Lord, Lord Sharkey, for his very clear opening remarks. There seem to be three issues here: first, who should set the tariff; secondly, where it should be set out; and, thirdly, how it should be amended.

I regard the tariff as being very much a political matter. The problem that we are trying to cope with is a widespread low-level fraud that is afflicting our country. It is easy money offered by the claims industry for people following what are probably genuine motor accidents. I read out earlier a quite shocking quote from one of the leading people in the claims industry:

“Even if you don’t experience any symptoms straightaway, don’t rule out the possibility that you’ve suffered this type of injury”.


I feel that as it is a political and social problem it must have a political solution, and it cannot really have a judicial solution.

I am grateful to the noble and learned Lord, Lord Brown, who has lent me his copy of the Judicial College guidelines. The introduction states:

“Assessing the appropriate level of any award remains the prerogative of the courts, which are not constrained by any range identified in this book, since the figures within any such range are persuasive, not obligatory, and merely represent what other judges have been awarding for similar injuries”.


Therefore, the whole basis on which the Judicial College has been gathering figures and making judgments is not the sort of basis on which in any event one would want to build a tariff construction. It is the wrong starting material, although it is an interesting book. Accordingly, I feel that the Lord Chancellor must be the person who takes a decision about what will be contained in the tariff.

In respect of my other two questions, I return to the 22nd Report of the Delegated Powers and Regulatory Reform Committee, which considered this issue at paragraph 13 and stated:

“In our view it would be an inappropriate delegation of power for damages for whiplash injury to be set in a tariff made by Ministerial regulations rather than on the face of the Bill. The tariff should be set out on the face of the Bill, albeit amendable by affirmative statutory instrument”.


I feel that answers both my questions. I urge the Minister to consider having a tariff on the face of the Bill and to ensure that it is amendable with suitable parliamentary oversight.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the amendments are, as has been said, in my name and that of my noble friend Lord Sharkey. I shall first add to the point made about the Delegated Powers and Regulatory Reform Committee by quoting what it said about placing the tariff in the Bill. It said that the second central question—the first being the question that I quoted earlier about what is meant by whiplash injury—is:

“By how much are awards of damages to be reduced?”


The committee said that the Government’s answer was that:

“The reduction in damages will be whatever the Lord Chancellor says it will be, in regulations to be made by him or her at some future date”.


The committee came to the conclusion, as the noble Earl pointed out, that that is an inappropriate delegation of power. I again make the point that it is appropriate for the Government to accept that recommendation. That has always been the way that that committee’s recommendations have been dealt with. Of course, amendment in the future can be made by statutory instrument.

I turn to the important point that was made in different ways by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Lord, Lord Faulks, and the noble Earl, Lord Kinnoull, which is that the cost paid by society for these reforms in this particular case—that is, the reduction in damages—is a reduction in awards for genuine claimants. It is genuine claimants who are made to suffer. I cannot see the justification for that in any of the evidence that the Government have produced. We accept entirely that there is a problem with fraud. We are fully behind attempts to tackle fraud by eliminating, or at least reducing, fraudulent claims. But to remove the right to fair damages for claimants in these particular types of cases does not seem to be an appropriate response to this problem in a civilised society.

We address this central problem by saying that the Judicial College Guidelines are an appropriate way of coming to a conclusion on appropriate damages. They are a fair and workable way in which to achieve comparability. They avoid the problem that fraud may be positively encouraged by a cliff-edge system that encourages exaggeration. Damages under this proposal double if the claimant can persuade the medic who is preparing his report that an injury will have a duration of three months-plus, rather than just short of three months—doubled from £225 to £450. In that context, I make two points. The first is that it is a little odd that the response—

[Lord Hodgson of Astley Abbotts (Con)]

Does the noble Lord accept the argument that the quantum of damages is essentially a political decision that should be taken and justified in Parliament, not taken by judges in courts? How do aggrieved people achieve change there? We know how they achieve change in a political situation: they can lobby their Member of Parliament and get change. Is the noble Lord saying that this must be left to the judges and that we have no way of obtaining redress for decisions that an individual might feel are unfair or inaccurate?

[Lord Marks of Henley-on-Thames]

Absolutely not. The Judicial College can respond, and be required to respond, to political guidance if Parliament chooses to legislate on the level of damages. I do not say that that is what is wrong. My concern is about the fairness and comparability of picking out whiplash injuries in an attack on fraud and reducing the compensation to genuine claimants accordingly. My point about the £225 and £450 figures—

[Lord Faulks]

Does the noble Lord accept that if you reduce the amount of damages, it provides something of a disincentive to those who are fraudulent?

[Lord Marks of Henley-on-Thames]

Of course I accept that. It is a question of whether the cost in unfairness is worth paying. It is a dilemma that the noble Lord himself correctly outlined in his speech. We are simply saying that we ought to try every other avenue before trying this drastic avenue of introducing an unfair system for genuine claimants. I will see if I can get beyond the next couple of sentences.

My point about the £225 and £450 figures is that they represent a cliff edge. They compare to £1,800, which is the expected award set out in the Government’s impact statement for such injuries of less than three months’ duration to date. The Government’s response to the outcry that these damages are so low has not been to meet the outcry at all but to reduce them from £235 to £225 and from £470 to £450.

One of our problems with the present proposals is that there is no evidence base for a recent increase in the number of fraudulent claims. We entirely accept the case that the noble and learned Lord, Lord Keen, made both at Second Reading and today that there is a wide prevalence of fraudulent claims that we have to tackle. However, there is not a wide base of evidence for an increase in such claims, nor is there sufficient evidence of how many claims are fraudulent or genuine. There is certainly no evidence that only the fraudulent claims would be deterred and that the genuine claims would continue. That worries me seriously, because the noble and learned Lord suggested earlier today that a genuine claimant might continue whereas a fraudulent one might be deterred. We simply do not accept that. It is just as likely—and I say this also without an evidence base—that genuine claimants would be deterred because the amount at stake had become so low, even though they had a fair claim.

We entirely agree with the Government that the proposal for compulsory medical reports discriminates between genuine and fraudulent claimants. I repeat my declaration at Second Reading that I have just concluded some litigation about compulsory medical reports and the operation of the pre-action protocol. However, there is no corresponding evidence of discrimination in the case of these drastic cuts in damages, which we say are unjust, unfair and fail to give fair compensation to genuine claimants. They discriminate unfairly between injuries sustained in road traffic accidents by drivers and passengers in motor vehicles and those sustained in such accidents by cyclists and pedestrians. Who would receive the traditional level of damages? Passengers and motorists would not, even in genuine cases. They discriminate unfairly between accidents which are covered by the Bill and accidents at work or accidents caused by, for instance, a council’s negligence. Those can also be a source of fraudulent claims.

If the Government are determined to have a tariff, we are worried about the cliff edge. I see no fundamental reason in principle against a tariff; it is a question of weighing the advantages of certainty outlined by the noble and learned Lord against the fact that you have a cliff edge where those cases that are very close to the three-month level produce very large discrepancies in damages. If we are to have a tariff, let it at least be one that does not penalise genuine claimants by allowing them an award that is far too low. That is the basis for our alternative Amendments 13 and 96. We do not put them forward as a preferred option, but they are more acceptable than the Government’s proposals.

[Lord Beecham (Lab)]

My Lords, I concur with the views expressed and proposals made by the noble Lords, Lord Sharkey and Lord Marks. They are absolutely on the right track, although I do not agree with the provision for the Judicial College guidelines to be taken into account. It will be seen that in the next group, we have an alternative proposal suggesting that the Civil Justice Council should be involved in making the decisions.

In this group, however, there is an amendment in my name and that of my noble friend Lord McKenzie which would restore a degree of discretion for the court to uplift the amount of damages payable where it deems it just to do so in all the circumstances of the case. That would revive the role of the judiciary in assessing damages, at least to some extent, where it felt that the scale proffered under the legislation was inadequate—as noble Lords have already made clear, that seems likely in many cases.

I broadly support the amendments of the noble Lord, Lord Sharkey and Lord Marks, and will revert to one aspect to which I referred in the next group.

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[Lord Keen of Elie]

I acknowledge the noble Baroness’s expertise in these areas as a non-executive director of Thompsons Solicitors, and her knowledge of the claims culture that has built up. With respect, in carrying out our work, we looked at the behaviour of the insurance industry in this context. Of course, the insurance industry can operate as an intermediary because, where the claims arise, it passes on the costs to the consumer by way of increased premiums. There have been instances in the past where insurance companies have passed on details of their own insurees’ claims to third parties and that has been exploited. I was quite open earlier in saying that we acknowledge the contribution of a number of different parties to what has developed into an unacceptable claims culture. That is what we are seeking to address in this Bill.

Can I continue just a little further in that context? The first group of amendments from the noble Lords, Lord Sharkey and Lord Marks, proposed that compensation for pain and suffering should be determined by reference to the Judicial College guidelines. Indeed, the second set of amendments proposed to place the tariff amounts into the Bill rather than in regulations made by the Lord Chancellor. All those figures would be significantly higher than those proposed by the Government—indeed, more in line with the amount currently paid out by claim.

I understand that noble Lords feel that the proposed tariff amounts are too low, but we continue to be concerned about the high number and the high cost of these claims in general, and the impact of that on the consumer. Therefore, we have to take a policy view as to how we can disincentivise not just fraudulent claims but what I would call unmeritorious claims—very minor and exaggerated claims. Our view is that it is right to set the tariff through regulations, which will help to control those costs and ensure greater certainty to both claimants and defendants when they come to deal with these claims, remembering that the vast majority of these claims never reach court anyway. They are dealt with before they ever arrive at the door of a court. In addition, we consider that a tariff will provide the flexibility required to change the tariff amounts, in reaction not just to inflation but to changes in the market, if I can gently call them that. We know that we are dealing with a marketplace; it is extremely inventive and can rise again phoenix-like from any statutory provision that we bring forward.

Therefore, we are going to have a tariff of predictable damages, albeit for those who suffer injury with a duration of up to 24 months. That is a relatively minor personal injury, but not one to be dismissed—and we do not seek to dismiss them. The relevant tariff will then be applied. It will be far simpler for someone to take their claim forward and, of course, we then have in place the requirement for an independent medical expert report, albeit in circumstances of dealing with subjective complaints of injury, as the noble Lord, Lord Sharkey, acknowledged. They can be very difficult to determine. If someone comes forward with symptoms, on the basis of a subjective assessment, a report can be made, but it can be very difficult to determine whether those subjective complaints are well based. Indeed, as the noble Earl, Lord Kinnoull, observed, there are claims management companies that would encourage someone to come forward even if he had not suffered any symptoms so far, in the belief that something might emerge in due course. That is why we have taken that approach, albeit we have allowed for the judiciary to have input so that it can, in appropriate or exceptional circumstances, increase the tariff award by up to 20%.

[Lord Marks of Henley-on-Thames]

I just wanted to make this point, but because of the noble and learned Lord’s plea I have perhaps left it a little late, as he has left the question of the figures. He made it clear that a political judgment was made in reaching these figures. The noble Lord, Lord Faulks, asked for clarification that the Judicial College guidelines, on which we rely, were merely an extrapolation from judges’ awards. However, as I expect the noble and learned Lord will accept, there is an element of circularity here because the judges reach their decision as to what is appropriate invariably after having the Judicial College guidelines cited to them, so they feed on themselves and are therefore a fairly carefully worked-out set of figures into which there could be political input.

[Lord Keen of Elie]

With respect, as the noble Lord outlined, they are self-perpetuating figures. Therefore, although we have regard to those guidelines when coming to a view as to where the tariff should be set, that was only one element in deciding the appropriate levels for the tariff itself.

I shall turn for a moment to the amendment proposed by the noble Lord, Lord Beecham, which would provide the court with complete discretion with regard to any percentage increase of exceptional circumstances. We do not consider that that is an appropriate way forward. It would simply lead to an increase in litigation and in the claims culture, so that is why we feel that there should be an appropriate limit on how any exceptional circumstances can be dealt with by the court.

In that context, I should point out that the tariff system is not entirely a novelty. Other European jurisdictions faced with the same claims culture and the same racket, as some people have called it, have introduced tariffs as well, or tables of predictive damages. That includes Italy, Spain and France. In due course both Houses will have the opportunity to debate the details of any regulations that are introduced to put forward the appropriate figures for the tariff, which at present we consider should be in the regulations, if only for the purposes of flexibility.

Again, I want to emphasise that this is essentially a matter of policy to deal with a very particular problem. It is a political decision; it is not one that we consider is for the judges; it is one that is ultimately for the Lord Chancellor to deal with in his capacity as a Minister. It is in these circumstances that I invite the noble Lord to withdraw the amendment.

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[Lord McKenzie of Luton]

My Lords, this is a very straightforward amendment. We know that legal costs are unrecoverable in the small claims court, and the increase in the small claims limit creates real problems. The amendment would at least provide for the courts to allow an award of costs in respect of the provision of a medical report. That is important, because whiplash claims cannot be processed until a medical report is available, and the amendment would facilitate that in circumstances where it would otherwise be difficult for claimants to obtain one.

[Lord Marks of Henley-on-Thames]

My Lords, I have three amendments in this group: Amendments 27, 47 and 52. Amendment 27 seeks a review of the small claims limit. We say that the provisions of the Bill cannot be satisfactorily considered unless at the same time the Government are prepared to discuss what will happen with the small claims limit.

The proposal is that the small claims limit will rise to £10,000 and to £5,000 in these cases, and that will effectively exclude all the whiplash claims on this tariff, with the claimants being unable to recover costs, apart from the very limited fixed costs. If that goes ahead, there will be no legal representation in respect of nearly all whiplash claims. Of course, that will not be limited to fraudulent claims; it will penalise genuine claimants as well.

The reason why there will be no legal representation is that, essentially, the vast majority of these claims are dealt with on conditional fee agreements whereby no fee is paid unless there is recovery. If there can be no costs recovery, even the fixed costs allowable under the protocol, there will be no legal representation. It looks very much, therefore, as if the purpose of the damages sections of this legislation is to wipe out these claims indiscriminately—fraudulent or genuine. There are two swipes. We dealt with the last swipe—cutting the damages to a level whereby, in many cases, it is simply not worth claiming—and changes in the small claims limit would effectively remove the chance of getting a lawyer to work on a conditional fee agreement. We believe that there should be a review of the small claims limit, and we said in our Amendment 27 that the provision may not be brought into force until the Civil Procedure Rule Committee has reviewed the limit of the small claims track for personal injury whiplash claims and published its decision.

Amendment 47 comes back to the question of recoverability of medical reports. It ought to be perfectly obvious that a successful claimant can recover the cost of securing a compulsory medical report or what is termed in the Bill,

“other appropriate evidence of an injury”,

even in the absence of a rule that the claimant can recover other fixed costs. When I raised this point at Second Reading, the Minister said that there would be such recovery. I quoted the impact statement showing that all successful claimants would have to pay the £216 for the medical report. The Minister said no, that was not right and the savings calculated that formed the basis of what I alleged were calculated on the basis of claims avoided, not of all claims. The Government were assuming that a successful claimant would recover the £216—which is £180 plus VAT—in respect of medical reports. At the moment, I can see no provision for that. The Civil Procedure Rules relating to small-claims track cases restrict awards of costs, but by exception they permit, at the discretion of the court, an award of limited costs for experts; but that does not make such costs payable as a matter of course, only as a matter of concession. We seek to have this matter made clear and Amendment 47 is a simple and secure way of ensuring that.

Amendment 52 is a further probing amendment: probing in the sense that, at Second Reading, the Minister expressed considerable sympathy with the idea of having a new protocol for small claims. The existing pre-action protocol for low-value personal injury claims in road traffic accidents came into force in 2010, and it has been kept up to date since. It introduced a simple low-cost way of pursuing claims, generally through lawyers acting on conditional fee agreements—often “CFA lite”, as they are called—whereby lawyers effectively guarantee that there will be no liability on their clients at all to pay fees, because under the existing protocol they will recover the fixed costs from the defendant’s insurers, which they are able to do. The protocol has its faults, not least—some would argue—that the protocol has of itself increased the number of whiplash claims, including the number of fraudulent claims. That is partly because it is very computer-based. It works on the basis of the portal: generally speaking, everyone has to use the portal; the claims are notified and the insurers respond through the portal. There is very little personal checking of what is in fact happening to such claims.

It is also suggested that, arguably, the number of claims settled by insurers without proper investigation has increased. That is for the simple commercial reason that insurers prefer to pay small claims and fixed costs rather than contest cases outside the protocol. That is a danger in relation to all of these proposals. The Government have not sufficiently considered that insurers will find it easier to settle smaller claims under the tariff than to settle larger claims under the Judicial College Guidelines, as they do now, a point made by the noble Baroness, Lady Berridge.

However, for all its faults, the protocol has increased access to justice for genuine claimants. The concern that this amendment is designed to address is that because the protocol does not apply below the small claims limit and the small claims limit is going to rise, there has to be a parallel protocol for unrepresented claimants that is easy to navigate. Our amendment describes that as having,

“the objective of ensuring that the procedures for claimants pursuing such claims are simple and readily understandable for claimants who are not in receipt of legal advice and representation”.

That is the purpose to which the amendment is directed.

[Baroness Berridge]

My Lords, I have added my name to Amendments 27, 47 and 52, to which the noble Lord, Lord Marks, has referred, which relate to some of the most fundamental points in the reforms. They involve the procedure which will exist for genuine claimants through the small claims track and/or the portal.

I am saddened but grateful to my noble and learned friend the Minister to learn that it is not an unintended consequence of the Bill that genuine claimants will be caught. It is an intended consequence of the Bill, so there is a high onus to ensure that access to justice is ensured for genuine claimants.

The noble Lord, Lord Marks, referred to no legal representation but, having worked in what was then called small claims arbitration I know that defendants are usually legally represented. In Scotland personal injury claims, which are generally more complex, are outside its equivalent of the small claims procedure because of the asymmetry of the relationship in the small claims track between the claimant and the defendant. Having represented defendants in those circumstances more times than I care to remember, I know that although district judges go out of their way to try to ensure that there is fair procedure, they cannot step outside the boundary of their judicial role. Invariably, therefore, as the legal representative of the defendant, you know that you are at an advantage.

It is important to remember that, on the figures I have been given, 40% of people who buy fully comprehensive insurance do not also buy legal expenses insurance. Therefore, in order to recover their personal injury losses, their uninsured losses, and their often considerable excess losses—which can be about £500—genuine claimants pursuing personal injury losses, more often than not, will be litigants in person using the small claims track or the portal.

On the claims portal which has been mentioned, I know that a working group at the Ministry of Justice is looking at the new portal which will ensure that litigants in person have access to a streamlined procedure.

At the moment, however, you are within the claims portal only if liability is admitted. Some 75% of insurers have apparently signed up to pass on premiums so, like claims management companies and lawyers, we have good, exemplary and not-so-good companies. Unfortunately, with unrepresented claimants, there is now an incentive for certain insurers to deny liability because once they do so, the case comes out of the portal. It is then for a defendant insurance company to deal with a claimant—precisely the asymmetry of the Scottish situation. We have talked a lot about cold calling. Imagine being in that situation as a claimant trying to recover personal injury losses and an excess. You are busy, you are working and nobody is there to advocate between you and the defendant insurance company. That is a worry in relation to how the current portal operates.

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[Baroness Berridge]

I rise briefly to speak to the amendments I have in this group, which refer to a report by the FCA as well as a report being laid before Parliament.

It is important in this context to look back at Second Reading and the Government’s confession that the insurance industry had not done all it could to get on top of the issue of fraud. In some respects, on Second Reading one could have been forgiven for thinking that the problem of fraud was so great for the insurance companies that they were teetering on the brink of bankruptcy as it was such an urgent issue. Nothing could be further from the truth. A report from Direct Line Group, which is the largest insurance group that we have, shows profits for financial year 2017 of £610.9 million—a leap of 51.4% on 2016. Dividends were up 40.2%. In its interim report in 2017, one of the reasons it gave for that was fewer than expected bodily injury claims. We might argue for a long time about CRU figures, but Direct Line attributes its increase in profits to a decline in personal injury claims.

It is disappointing to those of us who are saddened and troubled by the effect on genuine claimants that there is no proper mechanism in the Bill to ensure that the £1 billion of savings from claimant payments will actually go to the motorists. The Government are saying that that is the Bill’s overall intention. In light of the scale of the fraud that the insurance industry would like us to believe, it is disappointing that it has not invested more of its resources into controlling this fraud because it is a societal issue that affects culture, as opposed to the profits that I have just outlined.

There is a particular legal problem, though, on which I hope the Minister can help us. Many insurance companies are no longer mutuals; they are listed on the stock exchange, with all its reporting requirements and requirements for directors to take into account their shareholders in the payment of dividends. How is that circle going to be squared? You have directors with an obligation to shareholders. They make cost-benefit savings, but they are under pressure either to pay down debt, as some have with some of their profits, or to pay out dividends rather than decrease the premiums they are charging to motorists.

There is a further issue with insurance companies, which is that they have enjoyed bumper savings from the implementation of the Jackson fixed-cost reductions and the LASPO changes that were introduced in April 2013. I am grateful to a fee earner from the Vale of Catmose—and to Thompsons Solicitors—who pointed out to me that insurers have saved at least £8 billion in claims costs between 2010 and 2016; the figure to date is around £11 billion. In spite of this, premiums have continued to increase relentlessly. She said the average premium has gone up from around £385 in the second quarter of 2013 to £493 in the last quarter of last year, according to the ABI’s own premium tracker—an increase of 28% since the LASPO changes.

There have been inordinate savings before that insurers have not passed on as reduced premiums. It may be as a result of being legal entities, as I have described, that they are under pressure from their shareholders to pay out bumper dividends instead of reducing premiums. There needs to be something more effective in the Bill to ensure that, after the Government introduce these changes, insurance companies will be held strictly to account and will pass on the savings they will undoubtedly make.

There is a laissez-faire attitude that, as half the market uses price-comparison websites, these savings will be passed on, but it does not always come to pass. It is ironic that, after the Second Reading of this Bill, we received the message that the Commons had passed the Domestic Gas and Electricity (Tariff Cap) Bill for meters. That clearly shows that, in some circumstances, the market does not provide the savings to consumers that we envisage. The Government need to ensure that savings are passed on and there is a strict mechanism in the Bill to that effect.

[Lord Marks of Henley-on-Thames]

My Lords, I first speak to Amendment 53 in this group, which deals with passing savings to insurers on to the public. Our amendment seeks an annual review by the Lord Chancellor of the extent to which insurers are passing on those savings to their policyholders. It is common ground that the purpose of this part of the Bill is to reduce fraudulent claims and to reduce the cost of all claims. This has become particularly apparent here, for claims both fraudulent and genuine. Savings are to be passed on to insurers that will pass those savings to their policyholders. The Government rely on the letter written to the Lord Chancellor in March, in which the insurers said that they would,

“publicly commit to passing on to customers cost benefits arising from Government action to tackle the extent of exaggerated low value personal injury claims”.

At Second Reading, my noble friend Lord Sharkey pointed out that it did not define precisely what “cost benefits” were, nor did it commit to passing on all savings or even all cost benefits made.

We want to see that all savings are in fact passed on. Our amendment is intended to ensure that the Government do better than simply relying on that letter. Far be it from me generally to accuse the Government of naivety but, generally speaking, a letter of intent in that form would not convince many in commerce that the intent was in fact going to be carried out. I believe that a review by the Lord Chancellor and an obligation to report to Parliament would increase greatly our chances of having that stated intent carried out. The reason that we press for the involvement of the Lord Chancellor is that this is a political decision and political action and it seems to me that a political response is required. The purpose of this group of amendments—and ours is consonant with that purpose—is to encourage the insurance industry to stick to its promise, and indeed to do better, to make sure that all savings are passed on; and, because of the report to Parliament, to enable the Government and Parliament to consider reviewing the legislation and/or penalising the insurance industry by imposing some kind of levy, tax or other measures if it fails to keep up to the mark on this.

I will also speak to Amendment 54 in this group, which is directed at cold calling. If the real mischief at which this part of the Bill is directed is fraudulent and exaggerated claims, then cold calling is undoubtedly the chief instrument by which that mischief is done. Sometimes, in discussing this, we have not looked at the fact that these fraudulent and exaggerated claims in fact come at three levels. At its worst, perhaps, it involves faked or staged accidents. These calls that say, “We understand that you have had an accident that was not your fault”, when no such accident has ever happened, are an invitation to the practice that is most invidious, and which we know happens, of accidents being deliberately staged, sometimes by people who develop a real accident involving innocent motorists crashing with them in order to mount claims. The second is fake injuries, where there is a real accident but the injury is faked altogether and a claim is made. The third is exaggerated injuries. The practice of cold calling makes all three types of dishonesty worse and we really have to get on top of it.

The first part of our amendment would mandate the Lord Chancellor to carry out an annual assessment of the effect of cold calling on the prevalence of fraudulent whiplash claims. The second part would compel the Lord Chancellor, if he were satisfied that it would significantly reduce such claims, to ban cold calling and to ban the commercial use of any data obtained by cold calling. That second part is directed at the fact that it is very difficult to legislate against cold calling from abroad but that, if you legislate against the commercial use of data, you do catch UK corporations or individuals who are using such data to pursue these fraudulent claims. The amendment is not specific to claims management companies. I mentioned earlier the interest that car hire companies and car repair companies have in pursuing these claims. They can offer to pursue personal injury whiplash claims as an add-on to sell their other services.

This is a probing amendment in a sense in that the Financial Guidance and Claims Bill, as mentioned by the noble Lord, Lord McKenzie, covered claims managers and defined claims management services quite widely. However, we are not convinced that that would achieve our object of banning the use of cold calling for other purposes or by other outside companies or that it would cover the use of cold calling in its widest sense.

Employment Tribunal Hearings

Lord Marks of Henley-on-Thames Excerpts

Thursday 26th April 2018 Lords Chamber

[Lord Keen of Elie]

On the last point, the Supreme Court determined that it was lawful to charge fees for the tribunal; it was the level of fees that was considered disproportionate. The time taken for tribunal cases was in the region of 26 to 28 weeks per case for resolution. That has increased to about 33 weeks because there was a significant increase in applications to the tribunals after the decision in July 2017. We have put in place a process for recruiting a further 54 tribunal judges for employment tribunals, which should increase capacity by about 44%. In addition, we are now taking steps to increase the number of fee-paid judges in the tribunal system; indeed, fee-paid judge sittings have increased by 180% since July 2017. We are also conscious of the need to employ additional staff in employment tribunals; that is being undertaken at the present time. I apologise for the length of my answer, but I felt I should give the noble Lord’s question a full response.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in the impact assessment supporting the 2013 fees order, the Government said that they were unable to predict how many employment tribunal claims would be deterred by the introduction of the fees but that they should deter unmeritorious claims. We now know that there was a 75% drop in claims following their introduction, with absolutely no effect on their success rate, and that this massive backlog has built up following their abolition. Will the noble and learned Lord accept that this is clear evidence that high tribunal and court fees deter meritorious claims and so reduce access to justice? Will he assure the House that any future impact assessments on this topic will have regard to such evidence?

Probation: Voluntary Sector

Lord Marks of Henley-on-Thames Excerpts

Tuesday 24th April 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, if I may, I will quote from the chief inspector’s report of 17 April:

“We found that the quality of services was variable, but reasonable overall”.


We intend that the service should be more than reasonable, and we are considering her recommendations.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the report demonstrates that probation services have been going badly wrong, with a failure to involve the voluntary sector on anything like the scale envisaged. Allowing the community rehabilitation companies to design and implement their own delivery models was a mistake and has led to uneven and inadequate delivery. Do the Government now plan to tie CRCs to more rigorous contracts by variation, or on renewal? Might this not also enable CRCs to provide much more in the way of needed services to the National Probation Service?

[Lord Keen of Elie]

My Lords, the community rehabilitation companies faced unexpected difficulties when it was found that the financial float of those companies was less than had been planned for. We have already discussed the terms of the contracts with the CRCs and they are the subject of further consideration. We are certainly determined that there should be a diverse provision so far as probation is concerned, and one that does involve third sector organisations.

Civil Liability Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

2nd reading (Hansard): House of Lords
Tuesday 24th April 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have had an extremely strong debate with important contributions from all noble Lords who have spoken, which has delivered much to consider in Committee.

I will begin with whiplash claims. There has plainly been an explosion of such claims over recent years, many of them exaggerated, unnecessary or fraudulent, even if the last few years have not continued that upward trend. My noble friend Lord McNally and the noble Lord, Lord Hayward, made the point that not only false whiplash claims but other claims have mushroomed. There can be no doubt that the ban on solicitors paying referral fees has helped to restrict the trend but there is considerable evidence of the ban being circumvented, particularly with the help of claims management companies.

Cold calling generates a great many claims—the noble Lord, Lord Faulks, is not the only Member of this House with repeated experience of this—but the very fact that this practice is so widespread suggests that not everyone responds with a rejection. I understand that it is difficult to control cold calling by claims management companies operating from abroad but there is no excuse for our not doing everything we can to stop this direct incitement to fraud. We agree with the Government that we must try to stamp out unmeritorious, exaggerated and fraudulent claims.

If I may be permitted to add to the accumulation of anecdotal evidence, my wife had a similar experience to that of Lady McNally when she hit the back of a car that was in front of her, ever so gently—so she tells me, anyway. Out stepped five strong young men, on their way to a paintballing and laser-gaming session. They were polite, charming and concerned as to whether my wife was all right, and they all assured her that they were fine. So off they went to their paintballing and laser gaming; a week later, my wife received a claim for some £13,000 in respect of their five alleged whiplash injuries. She told our insurers that she did not believe any of them were genuinely injured and that they had all told her they were unhurt. We have not found out whether the insurers paid out but, since we have heard nothing further, I suspect that they did. This illustrates a major problem, which is that it is often easier for insurers to give in and pay small claims than to investigate and fight them—a point made by the noble Lord, Lord Monks, and others. It is a point that will not be assisted by reducing the amount payable in such claims.

However, while we must do everything we can to stamp out false claims, in so doing we must take care not to prevent those with genuine claims recovering fair compensation. I reiterate the point made by a number of noble Lords: it is unfortunate that this legislation is being dealt with separately from the Government’s proposals to increase the small claims limit, with which this legislation is closely connected and which will have a number of significantly unjust outcomes.

First, increasing the small claims limit for personal injury claims to £5,000 would prevent cost recovery for claims below that sum. It would thus deny very large numbers of genuine claimants legal advice and representation because the only way they can afford lawyers in these cases is by relying on conditional fee agreements and the recovery of costs from insurers—a point well made by the noble Lord, Lord Monks, and the noble Baroness, Lady Berridge. This will affect not just road traffic accidents. My noble friend Lord Sharkey mentioned the plight of other vulnerable road users, including cyclists and pedestrians, who will find it difficult to bring claims without legal help. Many other claims will be affected as well.

The increase in the small claims limit will increase the number of litigants in person and reduce access to justice in general, hitting, as always, the most vulnerable citizens the hardest. Furthermore, the increase will take the vast majority of whiplash claims outside the pre-action protocol for low-value personal injury claims in road traffic accidents and the portal associated with it, which, for all its faults, has provided a route to settling many of these claims quickly and economically. If the small claims limit is to be increased, then I suggest the scope of the portal and the protocol should be broadened, or at least we should have a new parallel protocol to assist claimants in person in these cases. I draw some support from the speech of the noble and learned Lord, Lord Thomas, in that regard, but I regard £5,000 as simply too high for the small claims limit and would endorse the £3,000 figure proposed by the Bar Council and the Personal Injuries Bar Association.

Turning to the detail of the Bill, I share with my noble friend Lord Sharkey and the noble and learned Lord, Lord Hope, the view of the Delegated Powers and Regulatory Reform Committee, expressed in trenchant terms, that it is inappropriate that whiplash is undefined on the face of the Bill and that the initial tariff for damages is left to be determined by regulations. We hope that the Government will follow the usual line and conventional course of accepting the committee’s recommendations before the start of Committee on 10 May and put down amendments defining whiplash injury and spelling out the initial tariff in the Bill. As to the figures suggested for the tariff in the impact assessment on the whiplash proposals, included in the information pack helpfully provided by the Government, table 6 on page 26 says it all. The Government have in mind to reduce the damages for pain, suffering and loss of amenity for injuries of less than three months’ duration from £1,800 to £235, and for injuries of three to six months’ duration from £2,250 to £470 and so on. These are drastic reductions indeed. It is pretty clear that the intention is to make such claims not worth bringing. We are all for getting rid of fraudulent and unmeritorious claims; we are not for denying honest claimants reasonable compensation for genuine injuries.

We can see the reasoning behind the proposal that claims should not be settled without medical reports, and I should add to my registered interest as a practising barrister—I am not sure this is a declarable interest—in that I have recently represented an insurer in a case involving such settlements. We can see why making medical reports compulsory is likely to deter false and inflated claims. I do, however, stress the need for reporting doctors to question claimants’ accounts of whiplash injuries closely in order to weed out inflated or false claims. One of the difficulties with whiplash injuries is that generally, all the doctor has to go on is the account of the patient. Another, is that the estimation of duration is usually carried out in advance and is notoriously both difficult and variable.

However, to avoid unfairness to genuine claims, the cost of medical reports—which I understand from MedCo to be some £180 plus VAT—must be recoverable. I have asked the noble and learned Lord to find out about that, but have since noted that in paragraph 5.121 on page 33 of the impact statement, an expectation is noted that:

“Insurers will have savings for 120,000 medical reports they would no longer be responsible for of around £22 million per annum, and associated medical report VAT of about £4 million per annum”.


Doing the maths, 120,000 multiplied by £180 is £21.6 million. So it is pretty clear that whoever compiled the impact assessment expected claimants with injuries likely to have a duration of less than three months to pay £216 including VAT for a medical report in the hope of recovering £235, leaving the princely sum of £19 to represent compensation for the injury. The tariff proposed in the impact assessment is far too low, and in this I am afraid I disagree with the noble Lord, Lord Hunt of Wirral.

Furthermore, I can see no reason why the tariff should be set by the Lord Chancellor. If there is to be a tariff—though I agree with the noble Baroness, Lady Berridge, that flexible guidelines may be better, and I agree with the observations of the noble and learned Lord, Lord Thomas—is not the sensible proposal that any tariff should be established by the Judicial College? Why should damages for whiplash injuries not be comparable to damages for other injuries? The Government have made no convincing case on that.

My last point on whiplash is that all the savings from these reforms should be passed on to policyholders. I am not convinced by the Government’s touching faith in the insurance industry, nor even by the regulatory stick mentioned by the noble Earl, Lord Kinnoull. I would like to see a healthier scepticism on the part of the Government and, if need be, a clear statement that if savings are not passed on to policyholders then the industry may be subjected to a tax penalty on a windfall saving.

I turn, more briefly, to Part 2, on the discount rate. We support the move from a very low-risk to a low-risk investment assumption, principally for the reason given by the Minister that in practice the investment of damages is not generally undertaken on a very low-risk basis. In particular, we fully accept the need, on which the noble Lord, Lord Ribeiro, expounded, to reduce the cost to the NHS of catastrophic injury clinical negligence claims. I urge the Government to accept the suggestion made by my noble friend Lord Sharkey and the noble Lord, Lord Faulks, that we try to move faster in implementing the first change of rate, as the present negative rate is so plainly wrong, as the noble Earl has persuasively argued. Defining the level of risk is difficult, though, and I join the noble and learned Lord, Lord Mackay of Clashfern, in seeking more guidance from the Government on their approach; there is too little at present.

We are also unclear as to why it has to be the Lord Chancellor who determines the discount rate. The Government have said this is a political decision, but are they really right about that? Why should the expert panel not report to a judge or judges or to the Judicial College, taking on an expanded role? The speech of the noble and learned Lord, Lord Mackay, illustrated the difficulties facing a Lord Chancellor in this task.

I am also unpersuaded that a fixed period of three years for the time between reviews is appropriate, but I do not accept the point made by the noble Lord, Lord Faulks, and others that a fixed five-year period should be a substitute. Interest rates change fast in some periods and very slowly in others. Would it not be better for the expert panel to meet annually or every two years to consider whether the discount rate needed changing in the light of circumstances? If the panel’s view were that no change were needed, the rate would be left unchanged. If the panel thought the rate did or might need to change, it could conduct a full review and produce a report, which, as I say, I suggest could be to the Judicial College.

On the composition of the panel, I accept that an independent panel of experts is intended rather than one representative of either claimants or insurers. However, I suggest that to meet the point made by the noble Lord, Lord Cromwell, the legislation should include a requirement that the panel consider the interests of claimants and insurers even-handedly. I also accept that it should include a medical expert.

Lastly, I turn to periodical payments in cases where there are long-term elements to awards, often for the long-term care of the catastrophically injured, of whose claims the noble and learned Lord, Lord Hope, spoke so movingly. Unfortunately, the take-up of periodical payments orders has been low. This may be partly because the discount rate has been very low so that lump sums have been unduly high. I suggest, or suspect, that many claimants and their families are also attracted by lump sums even where periodical payments would be more suitable. The problem with lump sum awards is that expectation of life is actuarially determined and, as the noble Lord, Lord Hodgson of Astley Abbots, pointed out, it can therefore never be exactly right. Some claimants die earlier than expected, leaving a windfall inheritance for their heirs. More seriously, others live longer than expected so that their damages run out well before they die and they are left without the lifelong support the court intended them to have.

Will the Government make proposals to encourage greater use of periodical payments orders? I note the support for them expressed by the noble Lords, Lord Hodgson, Lord Beecham, and others. They provide some answers to the point made by the noble Lord, Lord Cromwell, on the need to protect claimants from the effect of a raised discount rate. I am entirely unimpressed by the argument that defendants’ insurers, the Medical Defence Union or others prefer to pay out lump sum. These parties after all represent the tortfeasors and if they are required in this sophisticated economy of ours to reinsure so as to pay out what are in effect annuities in place of lump sums, I see no reason why they should not do so.

I also join the noble Lords, Lord Sharkey, Lord Ribeiro, Lord Faulks and the noble and learned Lord, Lord Mackay, in inviting the Government to revisit the basis on which medical treatment is costed under the 1948 Act. If a way could be found to do so, it would be a beneficial use of this House’s time.

I close by expressing my gratitude to the Minister and the noble Baroness, Lady Vere, for arranging a very helpful meeting of all Peers to discuss these reforms and to consider amendments. I look forward to working with the Government and others to improve this Bill.

Legal Aid

Lord Marks of Henley-on-Thames Excerpts

Thursday 19th April 2018 Lords Chamber

[Lord Keen of Elie]

We are conscious of the contribution that the criminal Bar makes. The noble and learned Baroness is alluding to developments with regard to recent changes to the advocates’ graduated fee scheme. That scheme was developed in conjunction with the profession, in particular the Bar Council. The changes are intended to create a simpler and more modern pay system which better reflects the reality of the work being done. As regards the question of an inquiry, a review by the Lord Chancellor is ongoing and we intend to report on it in the course of this year.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the impact assessment for LASPO anticipated annual savings of £450 million. In fact, annual savings have been running at about £950 million. Last month’s terms of reference for the LASPO review commit the Government to ensuring that legal aid is,

“available to those who need it”.

Given that this aim is clearly not currently being achieved, will the Government make these extra savings of £500 million available to fund any proposals made on the review for extra legal aid spending? Has that been made clear to officials conducting the review within the department?

Worboys Case and the Parole Board

Lord Marks of Henley-on-Thames Excerpts

Wednesday 28th March 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am most grateful to the Minister for that Statement about today’s High Court decision. I hope that he will agree that the ruling was possible only because of the Human Rights Act and the victims’ rights contained in it. But today’s decision clearly highlights the deep flaws in the initial Parole Board decision, which caused enormous anguish for victims—those whose cases had been dealt with but also those who have not yet had justice. There is also deep concern among women and the public more widely.

Of course, the head of the Parole Board has decided to stand down—although I am sure that all noble Lords will be concerned to preserve the independence of the board going forward. So what is needed is surely a change in the way that the Parole Board and perhaps the wider justice system function. As the Minister said, the current legal restrictions on the Parole Board mean that we still do not know exactly why the initial decision was taken. That led to rumours about where Worboys would be released and even whispers that he might be released without a tag. It is not good for victims or public confidence.

It cannot be right that victims had to resort to a crowdfunded judicial review—not a legally aided one—before any whiff of the reasons for the release of John Worboys became available. Judges in the judicial review said that there was too much secrecy about Parole Board decisions under Rule 25, which presents any reasons for decisions made by the board. The case underlines, once and for all, that we need urgent measures to achieve greater transparency in Parole Board decisions. I am sure noble Lords will agree that if the public are entitled to be informed about court judgments, it makes sense that they should also be informed about at least the rationale of Parole Board decisions. This is not about undermining the board’s independence. I am sure that all Members of your Lordships’ House can unite in defence of the independence of both the board and the judiciary. It is right that action is being taken. The Government have committed to taking action to improve transparency, but it seems that we need not just transparency but a clear mechanism to allow victims to challenge decisions when they feel aggrieved. Can the Minister commit to the review he discussed being concluded by this summer? It is inevitable in government, with so many pressures, that such reviews sometimes slip. Can we have some assurance that that will not happen in this case?

A lawyer for Worboys’s victims has said that the Ministry of Justice was responsible for preparing the dossier of evidence on which the Parole Board made its decision to release. Can the Minister explain why information about the “rape kit” used by John Worboys was not included in this dossier? Can he also explain why the sentencing remarks of the judge in the Worboys criminal trial were not included in that dossier? Why did the dossier contain nothing about the new information that had come to light during the proceedings brought by victims against the Metropolitan Police? It must be possible that the failures in the Worboys case go much wider than the rules governing the Parole Board or the board’s function.

It is clear from today’s ruling that judicial review is a key tool for every citizen to be able to challenge unjust or unlawful decisions by the state or other public bodies. Deep cuts to legal aid have undermined the ability of too many people in our country to pursue judicial review. I repeat: I do not think it is right that victims should have to resort to crowdfunding to access justice. Justice cannot be dependent on the depth of your pockets. Will the Government commit to using their review of legal aid to look in particular at how we might better support the basic right to judicial review of administrative action?

It seems that there have been widespread failings in this case from the very outset. In 2009, John Worboys was convicted of 19 offences against 12 women, but the police have also linked Worboys to about 100 other cases. Many of the victims have raised concerns about the police handling of the case. Others have raised concerns about the CPS decision not to prosecute in other cases. We have discussed at length the complaints about the Parole Board, particularly its failure to properly notify victims of proceedings. It is clear that we need a thorough examination of the end-to-end handling of this case, from the first attack reported to a police officer right through to the Parole Board hearings that were under review in today’s decision. Those of us on this side of the House have asked the Government to consider such an end-to-end review before. I hope, in the light of today’s decision, that the Minister might commit at least to considering that request.

Finally, for most people most of the time the justice system is out of sight and out of mind until a case such as this comes to public view. Yet, the justice department has in recent times faced 40% cuts—the deepest of any department. Is it not time to reconsider the effect of those cuts and whether they are sustainable? If I might be so bold or cheeky, I ask the Minister to consider lobbying the Lord Chancellor to get extra investment into a justice system that is at least strained, if not quite broken.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble Baroness in welcoming the Statement from the Secretary of State and the noble and learned Lord’s repetition of it in this Chamber. The High Court’s decision is a signal victory for the victims. I join the noble and learned Lord in congratulating them on bringing this case.

The High Court’s decision and the Statement mark a real endorsement of three important principles. First, the interests of victims should be given significant weight in the Parole Board’s decision-making at every stage. Secondly, the Parole Board should operate with far greater transparency and its secrecy hitherto has acted against the interests of justice. Thirdly, a much wider range of evidence, including evidence of past offending, which was so very relevant to the Worboys case, should be fully considered by the board.

I welcome the many steps announced by the Secretary of State in the Statement. I also endorse the points made by the noble Baroness about how important judicial review is and the importance of resisting any attacks on it, direct or indirect, through its funding by Governments in future. However, I have a number of questions for the noble and learned Lord. I appreciate that the answers will necessarily to some extent be preliminary at this stage, but I make two points about that. First, the answers will be relevant to the reconsideration to be given by the Parole Board pursuant to the decision of the High Court in the Worboys case. Secondly, as the noble and learned Lord stated, this work has been going on for two and half months already.

My first question is: what thought has yet been given as to how evidence of past offending will be heard, tested and then weighed up by the Parole Board? In that context, how is it proposed that the voices of victims will be heard?

Secondly, one of the problems has been that the victims were notified of the decision after it had been taken and made public. That cannot be right. I appreciate the commitment in the Statement to giving a summary of reasons, but can we be assured that victims of past crimes by offenders who are about to be released will be notified in advance of a decision to release?

Thirdly, how is it intended that the role of the Secretary of State’s representative at Parole Board hearings, which was mentioned in the Statement, will be enhanced?

Fourthly, on training, the Statement commits to further specialist training of Parole Board members. How is it that the training of Parole Board members has been allowed in the past to be of a standard that the Government now accept was deficient?

Finally, how, in general terms as well as, as far as possible, in the particularity, is it proposed, given the abolition of Rule 25, that greater transparency for Parole Board proceedings will be implemented?

European Union (Withdrawal) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Sherlock]

It is standard legal terminology, and I thank my noble friend for his question. It would mean having regard to the human rights model. I said at the start that these were probing amendments. One of the reasons why I tabled it in that form is that I knew that if I tried to do anything more specific I would end up getting a classic government answer about the European court. To be honest, I am not really interested in having a fight about that. All I want to do is to understand what the Government’s approach to this is and how they will deal with whatever kind of judicial oversight is needed to enable reciprocity. So I will be open to whatever they come back and say; I will look at it in Hansard and judge it afterwards, rather than getting into it now. This is Committee and that is what I was trying to do.

My final questions are: will the Minister assure us that the 1996 Hague child protection convention will have continued application? Secondly, the UK will have to ratify the 2007 Hague convention on maintenance independently once we have left the EU. Because we have to give three months’ notice on that, if we do not take action before Brexit there will be a minimum three-month gap in its applicability after we leave. So what steps are the Government taking to ensure that it continues to apply seamlessly?

I know that I have asked an awful lot of questions, but at heart there is a core question: do Ministers want to try to stay with the current reciprocal provisions, which are tried and tested? If the answer is yes, are they taking the necessary steps? If it is no, where are we heading and what are we going to do in the interim until we get there? These are important provisions for the effective conduct of cross-border family cases. There are a lot of international divorces each year. These issues cannot be ignored. Children will suffer if they are not returned promptly after being abducted, or if their main carers do not get the maintenance they are entitled to. Families can lose time and money fighting court cases in two countries, with no certainty as to what happens at the end. We need to know where we are heading. To that end, I look forward to the Minister’s reply.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.

The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.

There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.

Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.

The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.

The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,

“the worst of all outcomes”,

as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.

A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?

Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.

The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.

European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.

This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.

[Baroness Butler-Sloss (CB)]

As a family judge, I regularly tried international family cases, so I entirely agree with the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, and very much support Amendment 29. I am dismayed, I have to say, by the inadequacy of the current wording of the Bill, which does not refer specifically to family law and does not deal with the main issue of reciprocity and the importance of the European court in Luxembourg. I will reiterate two figures because they are important for noble Lords to know. One is that there are 140,000 EU divorces between the UK and other member states. That is not a small number. There are 1,800 EU child abduction cases—an area of the law that I spent a disproportionate amount of my time trying under the Hague convention before the EU law came in and enormously improved the Hague convention.

--- Later in debate ---

[Lord Keen of Elie]

With respect, neither I nor the Prime Minister misunderstood any of that. With great respect, I want to correct the noble Baroness on one point: that ecosystem is simply not required for mutual recognition and enforcement of judgments by two separate jurisdictions. That happens between the countries of the Lugano convention and countries in the EU in any event. I am talking about starting from the same point, with common rules regarding judicial recognition and enforcement, and moving from there to the negotiation of a new partnership. We do not foresee the sort of difficulty that the noble Baroness alludes to in that context.

At this stage, I want to come back to the point I was seeking to make. First, it is not necessary for the UK to subject itself unilaterally to the CJEU’s jurisdiction to secure a reciprocal agreement. Many other countries do that. Secondly, in any event, the Government have been clear throughout debate on the Bill that it is in no way designed to legislate for any future agreement between the UK and the EU. That is not the purpose of the Bill. We cannot unilaterally legislate for our future relationship with the EU simply by including in our domestic legislation certain provisions about recognition of family law, maintenance and other agreements—a point that the noble Baroness, Lady Sherlock, readily acknowledged at the outset of her opening remarks some considerable time ago.

I understand that the intention behind Amendment 120 is to make sure that there can be continued application of international agreements, such as the Hague 2007 maintenance convention, which the UK currently operates by virtue of its membership of the EU. Of course, we are intent on doing that; as I noted earlier, we understand that there is a potential three-month gap there, which we need to address. I hope I can reassure the noble Baroness that we are clearly intent on securing an agreement, albeit not as an EU member and not subject to the direct jurisdiction of the CJEU, which ensures that we can maintain the highest standards of family law and mutual recognition, whether it be jurisdiction, choice of law or enforcement. I invite the noble Baroness to withdraw her amendment.

[Lord Marks of Henley-on-Thames]

I entirely understand the response the noble and learned Lord gave to the effect that you can, of course, have a treaty to ensure reciprocity, but he does not appear to recognise the role of the CJEU in the difficult cases where there is an argument about what reciprocity means and the obligations on states that are parties to that treaty. I do not know that there has been any explanation from the Government of how we deal with the difficult cases without accepting the jurisdiction of the CJEU. Would he like to elaborate?

[Lord Keen of Elie]

I am happy to repeat the observation I made earlier: these difficult cases are resolved, for example, between Norway, Iceland, Switzerland and the other members of the Lugano convention embraced within the EU. In that context, each of the courts—the Lugano court and the CJEU—respects each other’s judgments, but they are not bound by them. That happens all the time. Ultimately, it would be for the domestic courts of each jurisdiction to determine what they were and were not prepared to enforce in the context of these agreements. That does not present any insurmountable difficulty, any more than it does in the context of the reciprocal recognition and enforcement of orders made pursuant to the current Hague conventions.

Again, I am obliged to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Kennedy of The Shaws, for the report. I repeat my offer of further meetings to the noble and learned Baroness, Lady Butler-Sloss.

Prisons

Lord Marks of Henley-on-Thames Excerpts

Thursday 22nd February 2018 Lords Chamber

[Lord Keen of Elie]

My noble friend is quite right to highlight such a serious issue. There is a very large proportion of prisoners with mental health issues within the system. We are working with the Department of Health and NHS England to develop a new health and justice protocol that should ensure timely access to mental health and substance misuse services. In addition, we have been providing grant funding of £500,000 a year to the Samaritans for the last two years in order that they can support their Listener Scheme for those who require it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I believe that this House collectively shares a vision for our prisons to be not only secure, but clean, well maintained, humane, uncrowded, well staffed, safe places of education, training and purposeful activity, effective in addressing mental health and addiction issues and committed to rehabilitation and turning lives around—in short: civilising and civilised. Do the Government share this vision? If so, will they greatly increase investment now to realise it, incidentally reducing the estimated £13 billion annual cost of reoffending?

[Lord Keen of Elie]

My Lords, we, of course, have a vision of a prison system that is decent and safe for all those who have to be secured within it. We are proceeding with a programme of capital expenditure to replace Victorian and older prisons with prison accommodation more suited to present requirements. We have increased the number of prison officers within the prison estate in the last few years to the point where, up to December 2017, there were 19,925 prison officers, an increase of about 1,500 from the previous year. Of course we have aspirations for the prison system but we have to be realistic about those.

Non-Disclosure Provisions

Lord Marks of Henley-on-Thames Excerpts

Monday 22nd January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes any non-disclosure provisions between any employer and employee unenforceable unless the employee has had independent legal advice. The position of the legal profession, to that extent, is monitored. ACAS has a statutory code and practical guidance on settlement agreements which make it clear that no settlement agreement can include clauses that attempt to prevent or restrict an individual from making a protected disclosure. That applies to the public sector as well as elsewhere.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Baroness raises an important point, because it is wrong that confidentiality, or gagging, clauses in settlements should be used to conceal wrongdoing. But confidentiality clauses do play an important part in encouraging ADR—particularly mediation or arbitration—and in encouraging parties to settle cases rather than fight them in public, all of which we are keen to promote. Will the Government consider further how we might restrict the improper use of such clauses, particularly in employment and sexual cases, without undermining their legitimate use?