Civil Liability Bill [HL]

Viscount Ullswater Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, with this group of amendments we come to the procedure for timing the future reviews of the rate. They are in large measure parallel to some amendments I tabled in Committee but during that debate a number of important points were made by noble Lords, which I have reflected in changes in the drafting.

Our policy objective should be to establish a system that has three guiding principles. First, there should be a change in the rate only when the underlying investment climate—that is, the generally prevailing rate of return—has changed sufficiently significantly. We do not want frequent jerks on the tiller. Secondly, the timing of the change should be as unpredictable and quick as possible to minimise the chance of any people gaming the system. Thirdly and finally, we need to avoid the consequences of political inertia. The decisions to change the rate will always be controversial. As we heard from the noble Earl, Lord Kinnoull, the costs of these changes, one way or the other, can be very great indeed. Therefore, there will always be pressure on the Lord Chancellor to postpone any changes until the very end of any fixed-term period.

The way the Bill is currently drafted in large measure fails this test. First, having time-based reviews—for the reasons I have just explained, these are essentially time-based—fails to link to the fundamental reason for undertaking such a review; that is, the changing of the underlying rate of return on investments. Secondly, a system that requires the establishment of a new expert panel on each occasion—a decision that will undoubtedly leak—inevitably increases the chances of the system being gamed. Thirdly and finally, a system which places on the MoJ and the Lord Chancellor the whole responsibility of deciding both whether a review should take place and then whether the result of any review should be implemented is likely to lead to a preponderance of reviews taking place at the end of any fixed-term period.

The amendments I have tabled are designed to address the system and remedy these weaknesses. First, the decision on whether or not to implement a change remains with the Lord Chancellor because, as noble Lords have pointed out, this is at root a political decision. Secondly, the Lord Chancellor is relieved of the duty of monitoring changes in the available rates of return. This is undertaken by the expert panel, which will now become a permanent body. The expert panel, the proceedings of which will be confidential, will decide when to recommend to the Lord Chancellor that the rate should be changed and, if so, by how much. In this connection, to avoid frequent small changes, I have inserted “significantly” after “sufficiently” in the penultimate line of Amendment 53. All the above can be undertaken confidentially, away from the public glare, inevitably leading to a reduction in the amount of gaming. Indeed, if the Lord Chancellor chose not to accept the expert panel’s advice—which he or she would be perfectly entitled to do—no one need ever know it had taken place.

Finally, the other change from my Committee amendment is to remove the expert panel’s requirement to report to the Lord Chancellor at the end of every 12 months in which a review has not taken place, explaining why no review has taken place. My original intention was to improve transparency and clarity but it is clear from the remarks of noble Lords in Committee that it was a procedure that confused rather than enlightened and therefore I have struck it out. In the meantime, I beg to move.

[The Deputy Speaker (Viscount Ullswater) (Con)]

I must advise your Lordships that if this amendment is agreed to, I cannot call Amendment 54 because of pre-emption.

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

My Lords, we support the thrust of the amendments tabled by the noble Lord, Lord Hodgson, and his introduction of Amendment 53. My noble friend Lord Sharkey and I, together with the noble Earl, Lord Kinnoull, and the noble Lord, Lord Faulks, have tabled a number of amendments to the proposals for later reviews of the discount rate; that is, all reviews after the first, which we discussed in the previous group. These amendments on the later reviews are considered in this and the following group—the last group—and I shall speak to both groups of amendments now.

Broadly, we support the following propositions. First, we do not regard it as sensible to have a fixed three-year period, or even a fixed five-year period, between reviews of the discount rate. Interest rates and rates of return change unpredictably and at very different speeds over time. Years may go by, as they have recently, with very little change then a period of rapid change may follow. Fixed periods between reviews do not respond to that pattern of change and slavish adherence to fixed periods would lead both to reviews required by statute taking place unnecessarily during periods of stability and, more seriously, to there being periods—possibly long periods—following rapid changes in rates when the discount rate failed to represent an accurate assessment of predicted long-term returns.

Civil Liability Bill [HL]

Viscount Ullswater Excerpts

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

[The Deputy Chairman of Committees (Viscount Ullswater) (Con)]

I must advise noble Lords that if Amendment 58 is agreed to, I cannot call Amendments 59 and 60 because of pre-emption.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I rise to move Amendment 61 and speak to Amendments 65, 69, 86, 90 and 91, which are consequential.

These are probing amendments, designed to tease out the Government’s thinking on the methodology for carrying out reviews of the discount rate. As I understand it, the Government intend that each review of the rate must commence within three years of the last review, irrespective of whether there have been changes in the underlying investment climate that would affect the varying rates of return on the sums awarded. I would suggest that time is not the right metric by which to settle a requirement for carrying out reviews. I agree with my noble friend Lord Faulks, who has an amendment in this group, that three years is too short in any case. I would respectfully suggest that a five-year period suffers the same strategic defects. Fixed or maximum periods will inevitably lead to an increase in attempts to game the system. My noble and learned friend the Minister will, I am sure, point out that three years is a maximum and reviews can take place more frequently.

In the world of practical politics, things will not work out like that. Changing the discount rate is a significant and potentially controversial decision. We only have to look at the immediate history, with the discount rate remaining unchanged for over 15 years during one of the biggest financial booms and busts that the world has ever seen. I believe that Lord Chancellors will be reluctant to implement the changes until forced to do so, so there will be a bunching of claims as the fixed period nears its end—whether it is three or five years—as defendants and claimants reflect on whether the upcoming review is likely to be to their advantage.

Perversely, a fixed-term system requires a review where there is no obvious reason to undertake one. If the Bill is planned to achieve fairness, a key objective must surely be to ensure that rate changes are made to reflect changes in the underlying available rates of return on investments as quickly and efficiently as possible. This group of amendments suggests a different approach, making the expert panel established under paragraph 5 of proposed Schedule A1 a permanent feature. At present, it is not: it is dissolved after each review under paragraph 5(3), which is deleted by my Amendment 90.

Amendment 61 imposes a new advisory duty on the panel to,

“advise the Lord Chancellor to undertake a review of the rate of return when it considers that the nature of return on investment has changed sufficiently to justify such a review”.

The decision to initiate the review remains with the Lord Chancellor, but he or she is given the comfort of a third party advising that a review is advisable. To ensure that paralysis does not overtake the panel, the second part of Amendment 61 requires that,

“where a review under this paragraph has not taken place for a period of 12 months, the expert panel must report to the Lord Chancellor as to why it considers that no review is necessary”.

How the expert panel would make that judgment is up to it. Bearing in mind that in the new world, investment should be assumed to be in lower-risk categories, there are multiple indices: gilts—not index-linked gilts, I hasten to add—or prime corporate bonds, which together can provide indication of changes in the likely available rates of return. All the other amendments in my name in the group are consequential.

To conclude, these probing amendments seek to move the undertaking of reviews of the discount rate from an arbitrary, time-based system to one that reflects events in the relevant real world—namely, changes in the available rate of return on investments. I beg to move.

[The Deputy Chairman of Committees]

I must advise your Lordships that if the amendment is agreed to, I cannot call Amendment 62 for reasons of pre-emption.

[Lord Hunt of Wirral]

My Lords, I rise to support Amendment 91, tabled by the noble Lord, Lord Hodgson, which is in this group. The offending part of paragraph 8 is the legislative equivalent of putting the genie back in the bottle or un-casting the die.

Let us be clear: the option of the Lord Chancellor setting no rate does not mean leaving the current rate alone, or even setting a rate of 0%. I want to outline the sequence of events that will occur: having set the rate at least twice, the Lord Chancellor will decide that it is no longer appropriate for the Lord Chancellor to set the rate at all, that he should repeal all previous rates and that the whole matter should be thrown back to the courts. The effect would be to create a maelstrom in which no one can settle a case, because no one knows what the rate would be.

These sub-paragraphs, which Amendment 91 would remove, would in effect allow the Lord Chancellor to repeal the entire discount rate review mechanism, via secondary legislation, simply by deciding that he or she has had enough. I am surprised that the Delegated Powers Committee did not raise an objection, but the meaning of the sub-paragraphs is pretty opaque. It simply cannot stand up.

European Union (Withdrawal) Bill

Viscount Ullswater Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Baroness Goldie]

My Lords, I beg to move that the House be now resumed.

[The Deputy Chairman of Committees (Viscount Ullswater) (Con)]

The Question is that the House be now resumed. As many as are of that opinion will say Content.

[Noble Lords]

Content.

[The Deputy Chairman of Committees]

To the contrary, Not Content.

[Lord Foulkes of Cumnock]

Not Content. As we are all here, we might as well get on with it.

[The Deputy Chairman of Committees]

I think I will put the Question again. The Question is that the House be resumed. As many as are of that opinion will say Content.

[Noble Lords]

Content.

[The Deputy Chairman of Committees]

To the contrary, Not Content.

[Lord Foulkes of Cumnock]

Not Content.

[The Deputy Chairman of Committees]

I think the Contents have it.

[Lord Taylor of Holbeach]

My Lords, perhaps I may explain. An Urgent Question has to be repeated at about 6 pm. Rather than have that at a ridiculously late hour, we will adjourn the House until 6 pm. That will provide an opportunity for noble Lords to get refreshment and then we will be able to deal with the next group in toto and without interruption. I think that is the right way to go about it. I have discussed it around the Chamber, as the noble Lord will know.

Digital Economy Bill

Viscount Ullswater Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Byford (Con)]

My Lords, I rise to move the amendment tabled by my noble friend Lord Willetts, who apologises that he could not be here tonight. I have the two other amendments in the same group. Clause 68 makes mandatory the provision of data by Crown bodies to the ONS for defined statistical research purposes. An alternative approach might be for an organisation such as the Information Commissioner’s Office to provide arbitration on contentious requests.

Clear insight into whether the Bill directs Crown bodies to share data from statistics is needed in Clause 68. At the Bill’s Committee stage in the House of Commons, where there was a long discussion on this, Chris Skidmore, Minister for the Constitution in the Cabinet Office, said it would be possible for a Crown body to refuse an ONS request for data and,

“where necessary, have their refusal put before Parliament”.—[Official Report, Commons, Digital Economy Public Bill Committee, 27/10/16; col. 379.]

The Royal Statistical Society’s primary objection to this is that it provides no subsequent mechanism for the ONS to secure access to the data. It is also unclear to it what the process means in practice, which part of the legislature will deal with that correspondence, what it is expected to do with it and what sanctions it can apply for non-disclosure. The RSS has been asking why this is in place and whether it is justified, especially as other countries, such as Canada, operate with less burdensome arrangements. I should say that I am very grateful to the Royal Statistical Society for its briefing, otherwise I would be really lost. The RSS says:

“Including the Minister’s contribution, we have heard two arguments thus far … The Minister explained the different treatments for Crown bodies and other public authorities as being due to conventions: ‘That way of working, set out in sections 45B and 45C, ensures consistency between how a Crown body interacts with another on the one hand, and how a Crown body interacts with a non-Crown body on the other’ … We have also been privy to a different, earlier argument that due to the indivisibility of the Crown, one Crown body cannot give directions to another”.


If we thought earlier discussions were difficult, I think it is getting even more so.

The briefing continues by saying that,

“we have sought and obtained legal advice, which suggests that Parliament could technically direct departments to do what it deems fit. The government’s position, although it is not unprecedented, appears politically or culturally based. It may be that the government has heard objections from some departments to a mandatory approach. We are aware that there could be reluctance on the part of some departments to share data generally, and with ONS and researchers in particular. However, problems of risk aversion to data sharing ought to be addressed without obstructing the proposed right for ONS to access data for statistical purposes, which has been more widely supported and called for, for example, by the Public Administration Select Committee (2013) and the Science and Technology Select Committee (2016), and in other reports described in the House of Commons Library’s analysis”.

There is much more material here but I shall not push the matter further. I hope I have given my noble friend enough to respond to.

My Amendments 208 and 209, which are linked to this, are much simpler and more direct as far as I am concerned, because I am not technically astute on the other topic. Large, well-known charities employ many people using many skills and who are occupied full-time in their jobs. Little charities rely on unpaid volunteers who may not have a wide range of skills and who use their free time to work purely for the charity. I have two examples in mind. The first is Freddie’s Wish, which commemorates a little boy who died in a car crash. His mother set up the charity to help local bereaved families and to raise money for the children’s hospital and the air ambulance. In two years it has raised over £50,000 and trained more than 100 volunteers in paediatric first aid.

The second example is Evelyn’s Gift, which has been a registered charity for less than a year although its founder and volunteers have been working for nearly four years. It is in memory of a seven year-old girl who died of respiratory illness. Its aims are to arrange CPR training and to continue her practice of doing little acts of kindness. The list of acts done in her name and in the name of people and the organisations that support them is inspiring. The charity employs no one and all the work is carried out by unpaid volunteers.

Organisations such as these have no resources to supply the Statistics Board with information. An unpaid voluntary worker would have to give time to filling in forms instead of doing the work he or she has signed up for and dearly wishes to do. It could be difficult to persuade anyone to donate even more time in this pursuit. A small charity with irregular income but making an important local contribution could well be destroyed by a fine levied under new Section 45F(3).

Most people nowadays have heard of charitable shoe boxes. These are sent, filled with practical gifts—hand-knitted hats, scarves and gloves, pens and paper, recycled soft toys, tennis balls and so on—to underprivileged children in Africa and eastern Europe, and, indeed, in our own country. Those who fill them spend their own money and devote much time to making up these boxes. The work is carried out throughout the year and each box going abroad to Africa costs at least £2.50 to transport in November and December. Villages, primary schools, care homes and religious groups donate goods, money, time and effort to reclaiming, recycling and packing huge quantities of otherwise unwanted items. They also raise funds for basic toiletries, small packs of sweets and things such as pens and paper, without which some children cannot go to school. I know of one village that last year sent 1,326 boxes to the central depot.

Who is to fill in the forms for the Statistics Board, and is that really necessary for these very small charities? The boxes come from all over the country. They must not contain liquids, chocolate or sweets dated for expiry before the end of March of the following year. Beyond this, there is no record of contents, value or hours worked. With such charities, my concern is that the figures available to the Statistics Board will be solely to do with the transport of the finished items. That would surely distort the results of any study by the board. I suggest that we should therefore exempt such charities from the Bill. I beg to move.

[The Deputy Speaker (Viscount Ullswater) (Con)]

I must advise your Lordships that, if this amendment is agreed to, I will not be able to call Amendments 200 to 202 because of pre-emption.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I rise briefly to support this amendment. There seems to be something quite perverse in obstructing the access of the Statistics Board to datasets that are in the hands of other public bodies. That is a very simplified account, but it is a curious place in which to have an obstacle. I hope that the Minister can consider this clause very seriously.