Procedure for Appointing Judges

Chris Philp Excerpts

Tuesday 8th October 2019 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a great pleasure to serve under your chairmanship, Mr Sharma, in my first appearance as Minister in a Westminster Hall debate. I add my congratulations and thanks to those that other Members have offered to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who secured this timely debate.

I will begin by directly addressing the hon. Gentleman’s question about the independence of the process we have adopted to appoint members of the judiciary. I and the Government as a whole fully support the position articulated by the Lord Chancellor, that judicial appointments should be wholly independent and separate from any interference by politicians of any kind, including any form of parliamentary oversight. Speakers in the debate, including, of course, the Chair of the Select Committee on Justice, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), have powerfully and eloquently made the case for that approach. If judges are to act impartially as interpreters of the law that Parliament enacts, they cannot be subject to any form of political interference, including at the moment of their appointment. I join the Lord Chancellor and other Members who have spoken in stating clearly that the American system of Supreme Court confirmation hearings, and even elections for some judicial positions, would be wholly inappropriate in this country. It would undermine the principle of judicial impartiality that has prevailed in all four corners of the United Kingdom for so long. I hope that straight away I can give Members reassurance on the critical question in the debate.

The Lord Chancellor has been extremely clear in his comments, both those he made by the modern means of communication, Twitter, in the immediate aftermath of the various judgments that we have discussed, and those he made on the opening of the English and Welsh legal year last Tuesday. I attended that event in Westminster Hall, a few feet from where we are, and in his opening remarks the Lord Chancellor made it clear to the entire assembled judiciary that he would stand in defence of their independence and impartiality. That message was heard loud and clear. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has acknowledged, a couple of hours ago in the main Chamber, in response to a question from the Chair of the Justice Committee, the Lord Chancellor reiterated his and the Government’s unequivocal support for the principle of judicial independence and the independence of the judicial appointments process.

That process was established and put on a statutory footing in the Constitutional Reform Act 2005. As has been said, prior to that the Lord Chancellor exercised the power on advice from civil servants, but since the Act was passed the Judicial Appointments Commission has made recommendations, which the Lord Chancellor and the Lord Chief Justice and Senior President of Tribunals approve. However, the Judicial Appointments Commission is essentially the body that makes the recommendations and whose voice is decisive. I join the Chair of the Justice Committee in thanking Lord Kakkar, the commission chairman, for his work and that of his fellow commissioners—both lay and lawyers.

On at least two occasions in recent years the work of the Judicial Appointments Commission has been examined. A House of Lords Committee scrutinised the process in 2012, and during the passage of the Crime and Courts Act 2013 a great deal of work was done, looking at the process by which the judiciary are appointed. Recommendations were made and they were enacted in the 2013 Act, which amended the Constitutional Reform Act 2005. They included transferring responsibility for the selection of deputy High Court judges to the JAC. JAC lay commissioners were also allowed greater involvement in more senior judicial appointments above the High Court, including chairmanship of the panel to select the Lord Chief Justice and the President of the Supreme Court. The latter is done in rotation with their counterparts in Scotland and Northern Ireland, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. and learned Member for Edinburgh South West (Joanna Cherry) will be pleased to hear. The process under which the JAC currently operates is a good and effective one. It received significant scrutiny in 2012 and 2013 and I can confirm that the Government have no intention of altering the process.

The shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), drew attention to the fact that England and Wales is an international jurisdiction of choice for many litigants whose cases do not directly relate to the United Kingdom. I know less about Scotland in that respect, and would be happy to hear about it. Such litigants choose to use our courts because of their reputation for impartiality, effectiveness and sound decision making. There could be no greater vote of confidence in our courts system than the fact that so many people from around the world choose it. I add my thanks to those that the hon. Lady expressed to all the judiciary, from the magistracy to the Supreme Court, for the work they do to uphold the rule of law and for being a beacon of impartiality and sound judgment around the world.

Some hon. Members raised the topic of the composition of the judiciary, including the retirement age. That is currently 70, but it was older in the past. The Chair of the Justice Committee drew attention to the fact that many capable members of the bench, at all levels, retire while still exercising their functions at a high level and with the benefit of many years’ experience. I saw that at my local Crown court in Croydon. The chairman of the bench there had retired at the age of 70 a year or so ago—in his prime, I would say. The Government and the Ministry of Justice have heard the message from several quarters this afternoon and have listened carefully. We are considering the comments carefully and I suspect that we will consult on the matter before too long.

[Robert Neill]

I welcome what the Minister says, which gives me the opportunity to pay a personal tribute to His Honour Judge Warwick McKinnon, an old professional and personal friend who retired as resident judge at Croydon. I am also glad that the Minister mentioned the magistracy. Constituents of mine who were fine, experienced bench chairs had to retire at 70 when they still had much to offer.

[Chris Philp]

I concur with both comments. I would also like to thank Judge McKinnon, who is a constituent of mine as well as a former chair of the bench. I agree that my comments on age apply as much to the magistracy as to the judiciary more generally—the court judges. As I said, I think my hon. Friend can look forward to a consultation on the topic before too long.

Several hon. Members raised the matter of the gender balance and ethnic composition of the bench, and I entirely understand why those points were raised. The proportion of newly appointed court judges from BME backgrounds is 11%, which compares to slightly over 15% of the population as a whole. Currently 7% of court judges and 11% of tribunal judges are, as the hon. Member for Bolton South East said, from BME backgrounds.

As for gender balance, as the hon. Lady said, 27% of High Court judges are female, and that figure rises to 32% across the courts more generally and 46% in tribunals. Also 56% of the magistracy are female and about 50% of court judges under 50 are female; that is an encouraging sign. Qualifying those remarks, I would say that we rightly expect more senior court judges to have decades of experience at the Bar, so appointments today reflect the Bar 30 or 40 years ago, when diversity was not what we would like, and there is a measure of unavoidable time lag. That does not mean that we should not take proactive and active steps—we should. We should encourage the JAC and work generally to improve diversity in the magistracy and the courts. The figures are moving in the right direction and improving, but I am sure we can do more. As a newly appointed Minister I will certainly consider what active steps can be taken in that area.

I am grateful for the opportunity to respond to this debate, to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for securing it, and to other hon. Members for attending. Those include the now very famous hon. and learned Member for Edinburgh South West—

[Joanna Cherry]

Infamous.

[Chris Philp]

Let me be generous and say famous! It gives me, the Lord Chancellor, and the Government as a whole great pleasure to reconfirm our commitment to independent, non-political appointments to the bench at all levels. That is the foundation on which the rule of law is built, and that should not change.

Ministry of Justice Spending

Chris Philp Excerpts

Thursday 3rd October 2019 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a great pleasure to conclude this debate. I start by thanking my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the Chairman of the Justice Committee, as well as the other Committee members here, for securing this afternoon’s very important debate. When I attended the opening of the legal year on Tuesday, it became clear to me just how many of the senior judiciary in this country the Committee Chairman knows. I will certainly endeavour to listen to him, and to other members of the Committee from both sides of the House, as I embark on my new role.

As my hon. Friend the Member for Cheltenham (Alex Chalk) and the hon. Member for Enfield, Southgate (Bambos Charalambous) indicated, justice is of fundamental, vital importance to the functioning of our society. Justice is the foundation of any civilised society. Without justice, there is no freedom, and without the rule of law, there can be no prosperity, so the state discharges few functions that are more important than ensuring that justice is done. I join Members on both sides of the House in paying tribute to judges, lawyers, the police, Crown Prosecution Service officials, court officials, prison officers, probation officials, and of course Ministry of Justice civil servants for their work in making sure that our justice system functions.

As this debate is on funding, I should like to comment on the overall funding figures. A number of Members have referred to a reduction in spending of 40% since 2010. It is important to mention that that figure is based on figures for the 2015 spending review. Since then, there has been additional resource spending on Ministry of Justice matters from a variety of sources, and when that spending is added back in, the real-terms reduction is 21%. That is still a reduction, but of a great deal less than 40%. To put that in context, the British crime survey, which produces the most reliable crime statistics—in fact, the only ones recognised by the Office for National Statistics—finds a 33% reduction in crime over the same period; that is significant, and we should bear it in mind.

That said, there are clearly issues with the way that various parts of our criminal justice system operate that need addressing—issues that Members on both sides of the House have powerfully and eloquently referred to. That is why it is welcome, as some Members have acknowledged, that in the spending review statement made just a few weeks ago in this House, it was announced that the Ministry of Justice’s resource budget will increase from £7.631 billion this financial year to £8.142 billion in the next financial year. That is an increase of £511 million, which is over half a billion pounds, 6.7% in cash terms, or 4.9% in real terms. I am glad that Members across the House welcome that increase. On the capital side, the capital DEL budget has increased from £417 million in the current year to £620 million next year—a 48% increase.

The Department is going through the allocations process to work out where the extra £511 million will go. I heard powerful representations about the probation service from the right hon. Member for Delyn (David Hanson) and the hon. Member for Enfield, Southgate (Bambos Charalambous), and I think pretty much every Member who spoke in the debate mentioned the prison system. My hon. Friend the Member for Bromley and Chislehurst spoke about the courts system, and many Members discussed the legal aid budget, including the hon. Member for Lewisham West and Penge (Ellie Reeves), who spoke powerfully. What has been said in this debate will be carefully looked at as the allocations are made. However, we should remember that the reason why these savings had to be made was the catastrophic state of the public finances 10 years ago, so as we look forward to next year, as the economy continues to prosper and as public finances come under control, I hope that the 2020 spending review can do a lot more for the Ministry of Justice and the various areas that it looks after.

I will now respond to some of the specific points raised in the debate. On prison places, I am delighted that two prisons are now under construction, with 3,360 new places. Construction started just last week at the new prison in Wellingborough, and the Secretary of State turned the first sod of earth with his very own hands. That £2.5 billion programme will, as Members have said, add 10,000 places by the middle of the 2020s.

Members also made reference to the need to maintain and improve conditions in prisons themselves, with the right hon. Member for Delyn and the hon. Member for Hammersmith (Andy Slaughter) both referred specifically to the conditions within prisons. The Government fully recognise that issue, and I can confirm today that, in addition to the spending review 2019 figures that the House heard a few weeks ago, an extra £156 million will be spent next year expressly on prison maintenance and conditions. That is a 75% increase across the capital and resource budgets on the amount planned in the spending review, so I am sure that everybody in the House who raised the important matter of prison maintenance will be pleased to hear that.

Several Members mentioned the number of serving prison officers, including the hon. Member for Easington (Grahame Morris) a few moments ago. Members will therefore be pleased to hear that, as of June this year, there were 22,321 serving prison officers, which is an increase of 4,366 since 2016. The shadow Justice Secretary said a moment ago that 2,500 extra officers were announced in 2016, so I am pleased that we have delivered almost double that.

The hon. Member for Hammersmith talked about an important trial that took place in 10 of the most challenging prisons to try to improve prison safety and address, for example, assaults on prison officers. The trial published its results in August this year, and assaults fell by 16% and positive drug tests by 50% across those 10 prisons. Those are important results, and I hope that the pilots can be expanded. I will certainly be passing that point on to the Minister of State for Prisons and Probation.

We heard a bit less about our courts than about prisons, but they are also extremely important, with my hon. Friend the Member for Bromley and Chislehurst drawing particular attention to them. The digitisation process is not, as he said, a panacea. It is part of the solution, not the whole solution, but it is welcome that uncontested divorce proceedings, probate proceedings, the issuance and response to civil money claims and minor pleas can now all be done online, saving both participants in the criminal justice system and the court system itself a great deal of time and money. The common platform designed to make criminal cases run more effectively and efficiently between the police, the CPS and the courts will start to be rolled out in the first half of next year. That will do more to make the courts run more efficiently.

My hon. Friend the Select Committee Chairman mentioned issues with sitting days and maintenance in the court system, which I recognise. As the Minister with responsibility for courts rather than prisons, I will of course make the case for sitting days and for the maintenance programme in the court system as we go through the allocation process in the coming two or three months to divide up that half a billion pounds of extra money.

On court closures, which the shadow Secretary of State raised a few moments ago, the courts that were closed—those that were consulted on in 2015—were running at about one-third utilisation, partly because of the one-third reduction in BCS crime since 2010. Clearly, having courts running at only one-third utilisation does not make a lot of sense, but before there are any further closures, there will be a consultation process and extremely careful thought, for the access to justice reasons that he and other Members mentioned.

Legal aid was mentioned by a number of Members, particularly my hon. Friends the Members for Cheltenham and for Bromley and Chislehurst, and the hon. Members for Lewisham West and Penge and for Hammersmith. I am pleased to remind the House that last year the rates for criminal barristers were increased by around 10%—that was a £23 million commitment—and, as Members said, the criminal legal aid review is under way. In fact, some parts of that review, because they are so urgent, will report early: the parts related to unused material, cracked trials, paper hearing cases, pre-charge advice and payments for sending cases to the Crown court will report next month. The rest of the review will report in the summer of next year, and I hope it will address some of the concerns hon. Members raised about the legal aid system.

The hon. Member for Lewisham West and Penge mentioned victims. They are very important—particularly victims of sexual assault. The victims and witnesses budget is £92 million, and I am sure she will join me in welcoming last week’s announcement of an extra £5 million specifically to help victims of sexual violence.

Let me conclude with sentencing, which the Lord Chancellor and I have responsibility for. I support the change in the automatic release point for standard determinate sentences from half to two thirds, because I think the public expect someone who is sentenced to serve the majority of their sentence. Releasing them at the halfway point undermines public confidence in the sentence that is handed down. The change aligns the release point with the discretionary release point for extended determinate sentences, at two thirds. That will, of course, apply only to the more serious cases; it will not apply to all cases where a standard determinate sentence is handed down.

[Grahame Morris]

Will the Minister give way?

[Chris Philp]

I would love to, but I only have a few seconds left. I would love to take an intervention from the hon. Gentleman on a future occasion.

On less significant offences, I recognise the extremely high reoffending rate—60%—that Members referred to. As the Minister responsible for sentencing, I will look very carefully at expanding trials in which treatment, in particular for drug addiction, alcohol addiction and mental ill health, is put at the heart of sentencing and rehabilitation. There is much more we can do to learn from those trials and from countries around the world where more effective treatment is the key to reducing reoffending rates. That is my personal commitment to the House this afternoon.

It has been a great pleasure to participate in the debate. I look forward to hearing the Select Committee Chairman conclude it.

Civil Liability Bill [Lords]

Chris Philp Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 23rd October 2018 Commons Chamber

[Gloria De Piero]

My hon. Friend is absolutely right. Even if we use RPI, the Government still do not get to their proposed £2,000 new small claims limit. Instead, using the flawed RPI from 1999 would take the £1,000 to roughly £1,700. That is what we on the Labour Benches suspect is going on here.

[Chris Philp (Croydon South) (Con)]

The hon. Lady is making an argument about whether RPI or CPI should be used, but is there not a bigger point here? For almost all claims generally, outside this area, the small claims track limit is £10,000. If we are to be consistent, is there not a case for making it £10,000, the same as everything else?

--- Later in debate ---

[Gloria De Piero]

My hon. Friend is absolutely right. It is not an easy thing to take a case against your boss. You need a lawyer to hold your hand, an expert to talk you through, and the Government’s proposals are going to make that so much more difficult. She makes an appropriate point.

New clause 2 would ensure that children and protected persons, for example those lacking mental capacity, are treated the same as other vulnerable groups by excluding them from the small claims limit increase for whiplash injuries. Having made a welcome concession on Second Reading, and clarified in Committee that they would exclude vulnerable road users from the impact of the Bill and secondary measures on the small claims court limit, the Government appear to have forgotten others. Horse riders, pedestrians, motorcyclists and cyclists are rightly to be excluded from the changes, but some of the most vulnerable in our society, who are currently recognised by the courts as requiring special status, will be left, with everybody else, facing a new small claims limit of £2,000 or £5,000. As it stands, any settlement awarded to those who lack capacity to conduct their own proceedings, such as children or someone suffering with a mental disability, must be rubber-stamped by a judge because of the claimant’s recognised vulnerabilities. That will continue to be the case after these changes are introduced.

The law requires children and other protected people to have a litigation friend to conduct proceedings on their behalf. In the small claims court, those who provide this required representation are not and will not be paid for their time. Yet by increasing the small claims limit, there will be a significant increase in the number of people coming through the small claims court with higher-value and more complex cases, where they need a lawyer more than ever. We are asking a litigation friend to take on potentially complicated matters for those most in need, on their own, in their own time, for no pay. Injured horse riders, cyclists and pedestrians and motorcyclists will not be subject to a tariff. The small claims limit for them will remain at £1,000, meaning that they will get a lawyer to act for them for free in any case over that value.

Can the Government not see that children and protected persons need this support, too? How on earth can the Government justify protecting one vulnerable group but not another? Why is the horse rider worthy of exemption, but not a child or a person without the capacity to conduct proceedings? Are we really willing to let some of the most vulnerable people in our justice system be left simply to hope for the good will of others to protect their interests because we in this House have failed to do so?

I know that the Minister is aware of this issue from discussion in Committee with my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous). The Minister suggested returning to this point and that he would be very interested to see an amendment tabled. So here is his chance: a ready-made amendment that makes a simple correction and is an opportunity for the Government to rectify what I presume is an oversight. It simply extends the exemption already provided to others. It removes children from the changes being made to the small claims limit or tariff, and ensures that protected groups are excluded from the increase, the same as horse riders, cyclists and pedestrians. It removes the double standard of some vulnerable road users being granted an exemption and others not. Ultimately, it does little more than extend the protections already afforded to some and allow the Government to show that they care for all.

[Chris Philp]

Thank you, Mr Speaker, for calling me so early in this debate. I rise to oppose the Opposition’s new clause 1, which seeks to prevent the Government or any other public body from increasing the small claims track limit in relation to these personal injury cases, particularly road traffic personal injury cases, above £1,500.

I strongly oppose the measure. I touched on one of the reasons for doing so in my intervention on the shadow Minister earlier. For the vast majority of general commercial claims and indeed personal claims, the small claims track limit is £10,000. The reason it is as high as £10,000 is that some level of materiality is applied to the claim in question. The view taken by Parliament in the past, rightly, is that matters below the £10,000 limit should be sufficiently simple for a small claims track procedure to be used without the involvement of often very expensive lawyers.

In response to my intervention, the shadow Minister, before she was distracted by another intervention, drew attention to the fact that these are personal injuries. I accept that point, of course. However, the fact of their being personal injuries is not germane, in my view, to the question, which is: is the matter sufficiently simple to be adjudicated via the small claims track rather than through lawyers? That is the question—not whether the matter is serious or not serious but whether the matter is sufficiently simple to be dealt with properly by the small claims track rather than through lawyers. That is why I think there is a strong a case, on the grounds of consistency, for a £10,000 rather than a £5,000 limit.

[Ruth George]

In road accident claims and particularly in employment liability cases at work, establishing who is to blame for an accident is far from simple. It is an extremely different sort of case from that of establishing whether a fridge was working or not when it was bought, or whether there is something wrong with a car. I really think the hon. Gentleman is not doing justice to the victims of personal injury accidents by the arguments that he seeks to make.

[Chris Philp]

Of course the £10,000 small claims track limit applies to a far wider range of issues than simply whether a fridge functions or not. The hon. Lady mentions as an example the question of culpability for a road traffic accident. Given that we are talking about much less serious types of injury if the limit is, say, £5,000, determining responsibility for that road traffic accident does not need to be an enormously complicated procedure. For those of us who have been involved in such road traffic accidents, the minor ones we are talking about here, determining responsibility is not a highly complicated matter. I accept that, in much more difficult cases where very serious injuries have been suffered, one must of course take a lot more legal care and attention. For very minor injuries, however, where by definition the accident is a minor one, I suggest that determining responsibility and culpability does not need to be an extremely complicated matter.

[Andy Slaughter]

With the greatest respect, I do not think that the hon. Gentleman knows what he is talking about. Given of the relatively low levels of compensation for injury, the effects of a £5,000 injury can be quite severe and debilitating over a period of time. The complexity of personal injury cases, which involve expert evidence and issues of causation, means that they are in a different category. Even the Government accept that, so he is batting on a rather poor wicket.

[Chris Philp]

The hon. Gentleman’s arguments are ones that the legal community often advance, whether in this arena or others, to justify very high levels of legal and judicial intervention, which is often very expensive. We need to maintain a sense of proportionality, lest legal costs and expenses get out of control.

[Robert Neill (Bromley and Chislehurst) (Con)]

Will my hon. Friend give way?

[Chris Philp]

I shall in just a moment. I have seen figures suggesting that 47% of the pay-outs made by insurance companies for these relatively minor road traffic injuries get consumed by legal fees. If such a high proportion of pay-outs is being consumed by expenses, it suggests to me that the entire system is out of proportion, and that some reform is therefore needed. I give way to the Chair of the Justice Committee.

[Robert Neill]

I am afraid that my hon. Friend is not making the best case on the Government side that I have ever heard. Does he accept that lawyers act in the interests of their clients and that when they do, they are bound by professional obligations? Is not a better point that we should assist people through the system by working up a very good and accessible online portal, which the Minister has sought to do, so that we find the means of balancing cost with people’s ability to seek access to justice? I gently say to my hon. Friend the Member for Croydon South (Chris Philp) that that is perhaps a stronger point that the Government have been able to advance. The Minister has taken care to delay the implementation of aspects of the Bill in order to get the online portal up and working, and I suggest that that might be a more fruitful area to consider.

[Chris Philp]

I am always delighted to take advice and guidance from such a distinguished, learned and experienced Member as my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). He adds further weight to the case by drawing attention to the benefits of the online portal, which I hope could be used to further simplify such matters and enable claimants to manage them, rather than having to rely on lawyers.

[Jo Stevens (Cardiff Central) (Lab)]

I refer the House to my entry in the Register of Members’ Financial Interests. Is the hon. Gentleman aware that in most personal injury claims, there are fixed costs for lawyers’ fees?

[Chris Philp]

In many cases there are, but in many cases those costs inflate. I referred to the fact that 47% of the value of pay-outs get consumed by legal fees. I hope that the fixed tariffs provision, which is not the subject of any amendment but is in the Bill, will further simplify matters.

One reason why we have a problem that needs solving in this area—new clause 1 would inhibit that solution—is qualified one-way costs shifting, which was introduced a few years ago. I understand why it was introduced—the shadow Minister referred to David and Goliath—but under a system of qualified one-way costs shifting, unless the respondent can prove quite a high level of intention, deceit or malfeasance, the claimant’s legal costs are borne by the respondent in any event, even if the claim is dismissed. That creates significant moral hazard, as it means that claimants can bring claims, even if those claims have relatively little merit, safe in the knowledge that they, or indeed their advisers, will never have to bear the cost of the claim. It is a one-way bet, which means that claimants may as well just have a go and see what happens. The number of cases in which a claimant is shown to be so egregiously fraudulent that they have to pay the cost is extremely small. This one-way bet—this free option—that the legal system now provides is one of the reasons why there has been such an explosion in claim numbers.

[Craig Tracey (North Warwickshire) (Con)]

I should declare that I chair the all-party group on insurance and financial services. I agree with my hon. Friend’s opposition to the new clauses. Does he have any thoughts on why personal injury claims have risen by 40% over the last decade, yet during the same period, cars have become safer and accidents have reduced by nearly a third?

--- Later in debate ---

[Chris Philp]

My hon. Friend is right—he makes exactly the point that I was about to come on to. Over about a decade in which accidents have reduced by 30% and cars have become safer, the number of claims has gone up by 40%. He asks why, and I think it goes back to qualified one-way costs shifting. There is a huge financial incentive for claimants to have a go—encouraged, of course, by claims management companies—in the hope that they can make a successful claim. Defendants, typically insurance companies, have rather irresponsibly taken the view that because defending one of these claims—probably successfully—will cost £10,000 or perhaps more, they should simply choose to settle, which may involve paying out £3,000 or £4,000, without bothering to defend the claim. Obviously word has spread both in the claims management community and among the wider public that people can simply make a claim and the insurance company will settle, because it is cheaper for them to settle a bad claim than to fight it. That has created the most extraordinary perverse incentives. Insurance companies have been seriously at fault, as they have set up this situation by paying out for claims with no merit, for understandable commercial reasons, but they have made a big mistake, and we now have to correct it through the Bill.

My hon. Friend asks why the number of claims has increased so dramatically. It is because claims management companies have been phoning around, encouraging the public to submit fraudulent claims, and I will elaborate on that in a moment.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

The hon. Gentleman makes my point for me in saying that insurance companies are paying up on a regular basis. They are not even defending these claims, yet the Bill is designed to protect them. What does he say about that?

[Chris Philp]

The companies are not defending the claims because qualified one-way costs shifting makes it more expensive for them to successfully defend a claim than simply to pay it out. The system simply is not working.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

Does the hon. Gentleman think that any genuine claimants will be hit by this measure and will not receive the compensation that they should get?

[Chris Philp]

The right hon. Gentleman raises a fair concern. Of course, we need to make sure that we do not overcompensate and find ourselves in a situation in which genuine claimants are prevented from claiming. The way in which we are legislating strikes that balance and genuine claimants can still make a claim. My hon. Friend the Member for Bromley and Chislehurst referred to the use of an easy-to-operate online portal as a way of ensuring that claims can be handled easily, even by laypeople. The concern that the right hon. Member for Kingston and Surbiton (Sir Edward Davey) raises is reasonable, but I think that the Government have addressed it in their handling of the matter. However, I am sure that the Minister will comment further on the right hon. Gentleman’s point.

[Eddie Hughes (Walsall North) (Con)]

This might be a peculiar counter-intuitive point, but it is often the case that whiplash claims are associated with bad headlines in the press. People think that the numbers of claims are dramatically exaggerated. Perhaps it might be helpful if we send a message from the Chamber about discouraging fraudulent claims, which would mean that people with a genuine claim would be more likely to have their cases dealt with more quickly.

[Chris Philp]

As always, my hon. Friend makes a very good point. As Members of Parliament, we should send out a clear message to our constituents and the wider public that making fraudulent claims is not a victimless crime. They affect the insurance premiums that all of us and all our constituents pay. Fraudulent claims are extremely bad for society as a whole. They encourage a sense that people can somehow get money without really deserving it, which is morally corrosive as well as financially damaging.

[Jo Stevens]

I am sure that no one in the Chamber thinks that we should encourage fraudulent claims—absolutely not—but may I bring the hon. Gentleman back to some facts? Between 2015 and 2017, the number of registered claims for whiplash fell by 15%, while the number of claims being reported through the police also fell, which might have something to do with the 37% reduction in the number of road traffic police officers in the last 10 years.

[Chris Philp]

Clearly the number of injury claims made via an insurance company is not related to the number of police officers on the street. The hon. Lady mentions the slight but welcome reduction in the number of whiplash injuries. Over the same period, the number of claims to insurance companies for back injuries has increased, so the total number of claims is down only very slightly over the last couple of years, and is still dramatically up over 10 years, which is clearly a more meaningful period. When the two are taken together, therefore, there has not been a significant reduction.

[Robert Neill]

Will my hon. Friend give way?

[Chris Philp]

How could I possibly resist my hon. Friend?

[Robert Neill]

The House will know about my declaration in the Register of Members’ Financial Interests. I am glad that my hon. Friend has mentioned claims management companies. Would he agree that some of the concerns about balancing access to justice with discouraging fraudulent claims—we all agree about them—would be met by continuing to revise and strengthen the regulation of claims management companies, which are not regulated to the degree that solicitors are, and in particular by bearing down on the employment of paid McKenzie friends—non-qualified, quasi-lawyers who are particularly rife in the claims management sector? Will he work with me in persuading the Government to move swiftly to ban them?

[Chris Philp]

Once again my hon. Friend makes a very good point—two very good points, in this case. The operation of claims management companies, which have been actively engaged in encouraging the public to commit fraud, has had an extremely negative effect in this area. I want an outright ban on them making cold calls, but I am slightly concerned that even if the Government take all the action that he and I would like, these people, being extremely adept in such matters, would adapt their behaviour to circumvent the legislation and regulation. For example, they might start making cold calls from outside the UK’s legal jurisdiction, as we saw following the ban on referral fees that came into force two or three years ago. Insurance companies were banned from receiving referral fees from claims management companies, but some insurance companies and claims management companies sought to circumvent the ban by setting up what they euphemistically termed “alternative business structures”, whereby the claims management company effectively remunerated the insurance company via an equity stake rather than a referral fee. I am therefore concerned that even if we take all the action we can, these often rather dubious characters will find new and ingenious ways of circumventing the legislation.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

I welcome the fact that the hon. Gentleman supports an outright ban on cold calling by claims management companies, but does he agree that the Government’s measures in the Financial Guidance and Claims Act 2018 do not go that far? Rather than punishing injured victims, would it not be far better to introduce that outright ban on claims management companies’ cold calling?

[Chris Philp]

As I said a moment ago to my hon. Friend the Member for Bromley and Chislehurst, an outright ban would be welcome—it might be something the Government are looking at in any case—but because these people are so ingenious at circumventing even the best-written rules and regulations, there would still be a problem.

[Huw Merriman (Bexhill and Battle) (Con)]

I thank my hon. Friend for giving way—he is being most generous with his time. May I press him on the point made by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) about McKenzie friends? I am going back years now, but in my day, when I first started at the Bar, the concept worked very well: they were volunteers who accompanied people to court and assisted them, and they certainly were not paid. Surely we just need to go back to the system as was, as I suggest that things would then work very well.

[Chris Philp]

I agree wholeheartedly with my hon. Friend, who I know has a distinguished legal background. Both he and the Chair of the Justice Committee have powerfully made the point that McKenzie friends should be voluntary and unpaid. I hope the Minister heard that excellent recommendation, which has now been made by two learned hon. Members of this House.

[Sir Edward Davey]

I congratulate the hon. Gentleman on making a speech against the Bill. He has admitted that the insurance companies should be fighting the claims, that McKenzie friends should not be paid and that claims management companies should be regulated. He might not have realised it, but he has defeated the Bill by himself.

[Chris Philp]

I am grateful to the right hon. Gentleman for granting to me such wide-ranging powers of persuasion, but I am not speaking against the Bill; I am speaking only against new clause 1. Despite all the measures we have just been discussing, including the three that the right hon. Gentleman mentioned, I do not think that they, on their own, will be enough, for the reasons I have outlined. The financial incentives created by qualified one-way cost shifting will remain, and claims management companies will find ways of circumventing any tightening of the rules that might be legislated for separately. There is no question but that the British public are being incited to submit fraudulent claims on an industrial scale—[Interruption.] The shadow Minister, the hon. Member for Leeds East (Richard Burgon), is tut-tutting and shaking his head in a way that leads me to believe he disagrees with that statement—I think that I have fairly summarised his view.

[Eddie Hughes]

Will my hon. Friend give way?

[Chris Philp]

I was about to reply to the shadow Minister’s implied disagreement, but go on then; I give way.

[Eddie Hughes]

I just wondered if my hon. Friend would comment on a previous interaction between me and my hon. Friend the Member for Bexhill and Battle (Huw Merriman) about stock car racers, who obviously are involved in multiple collisions and yet do not seem to suffer any whiplash, or at least not to the same extent as others. In addition, people in Greece make far fewer claims than we do in the UK. Will he comment on that?

[Chris Philp]

Once again, my hon. Friend makes an excellent point. Not only has the number of claims for such injuries dramatically increased over the past 10 years, at a time when the number of road traffic accidents has fallen, but they are far more prevalent here than in other European jurisdictions—not just Greece but countries such as France and Germany. Could it be that British necks are weaker than French and German necks, or could it be that our system encourages fraudulent claims?

[Ruth George]

The hon. Gentleman, who is making an excellent speech, has answered his own question. He has talked about the prevalence of claims management companies and the way they are inciting people to make claims on an industrial scale. Surely those claims management companies, and the insurance companies they are linked to in most cases, should be bearing the brunt of this problem, not the innocent victims of accidents, as would be the case under the Bill.

[Chris Philp]

The hon. Lady evidently agrees that claims management companies have been inciting fraud on an industrial scale—a point of view that her Front-Bench colleague perhaps disagrees with. That said, claims management companies are only part of the problem. As I said, the incentives inherent in the system have encouraged the kind of behaviour I have been describing.

I want to come to the implied sedentary disagreement from the shadow Minister earlier. I inferred from his gesticulation that he disagreed with my suggestion that claims management companies were inciting fraud on an industrial scale. I will start with a personal anecdote, which I realise does not make the general point, but I will then come on to that more general point. My interest in this area stems from personal experience. About three or four years ago, just before being first elected, I had a minor road traffic accident while driving along the M5 to Cornwall with my wife and our two small children. [Interruption.] I think I am being heckled by the Chair of the Justice Committee.

Nobody was injured in the accident—the bumper was a bit dented, but that was it. It happened at low speed, the traffic having slowed down. For about a year, however, I was bombarded with calls to my personal mobile by people from claims management companies, I think, that had somehow found out about the bump, trying to persuade me that I or my family had suffered a neck injury. No matter how often or how insistently I told them that everyone was fine, they would say things such as, “If you just say your neck hurts, you’ll get £3,000.” The incitement to commit fraud was clear and direct. Subsequently, as recently as in the last two or three months, I have received repeated automated calls—robocalls—again to my mobile, although wholly unrelated, I think, to the first set of calls. I received a recorded message saying, “We are calling about your accident. Do you want to talk about it?” There was then a pause during which I was expected to reply. That is clearly happening on an industrial scale.

[Jo Stevens]

Who does the hon. Gentleman think sold his details to that claims management company?

[Chris Philp]

In the first instance, it was very likely to have been an insurance company that had been circumventing the referral fee ban through an alternative business structure, which is a practice that I wholly deplore, and I encourage the Government to ban it. However, as I have said three or four times before, simply trying to legislate away claims management companies will not in itself be enough when the incentives inherent in the system are so powerful. Raising the small claims track limit to, say, £5,000—which is still half the level of the general small claims track limit—will serve to diminish the financial incentives in the system whereby lawyers are taking nearly half the value of pay-outs.

[Several hon. Members rose—]

[Chris Philp]

I give way to the hon. Member for Hammersmith (Andy Slaughter).

[Andy Slaughter]

The proportion of fraudulent claims is about 1%. If I understand the hon. Gentleman’s argument correctly, he is saying that all meritorious claimants should be debarred from proper representation so we can identify that 1%, because it is too difficult for the Government to legislate. Is not the truth of the matter that the Government, as always, are joined at the hip to the Association of British Insurers, and are simply legislating in its interests?

[Chris Philp]

I disagree with all three things that the hon. Gentleman has said. First, as I said earlier to the right hon. Member for Kingston and Surbiton (Sir Edward Davey), the Government have no intention at all of preventing legitimate claims from being made. The Government are keen to facilitate those claims, and the online claims portal will help with that. There is categorically no intention of disbarring, preventing or in any other way inhibiting legitimate claims from being made.

Secondly, the hon. Gentleman referred to the 1% fraudulent claims figure. The reason the reported figure, which in my submission is dramatically under-reported, is so low is that insurance companies are, quite wrongly, choosing to settle those claims—even suspicious claims, even claims without merit—without defending them, because the cost of defending them, which is about £10,000 or £15,000, far exceeds the value of the pay-out. So the 1% figure cited by the hon. Gentleman goes nowhere close to reflecting the true scale of fraudulent claims in this area.

[Sir Edward Davey]

Will the hon. Gentleman respond to a general point? Does he believe that when we are tackling a problem, in any aspect of society, we should deal with the symptom or the cause?

[Chris Philp]

Of course we should deal principally with the cause, and that is what the Bill seeks to do. [Interruption.] The right hon. Gentleman asked about causes. We can talk about claims management companies and we can talk about referral fees—those are important issues to deal with—but the cause of this problem is the financial incentives created by qualified one-way costs shifting, whereby claimants, aided and abetted by claims management companies, can have a crack for free, suffering no loss if their unmeritorious claims are dismissed. If the right hon. Gentleman wants to go into the cause of the problem, that is the cause of it, and elevating the small claims track limit to £5,000 will do a great deal to eliminate the cause. If he wishes to address the cause, as his intervention implied, he should vote against new clause 1.

[Several hon. Members rose—]

[Chris Philp]

I give way first to my hon. Friend the Member for Bexhill and Battle.

[Huw Merriman]

I thank my hon. Friend for giving way again. It is not just the case that we do not really know the number of fraudulent cases, although we can certainly make a very fair estimate, given that there are 200,000 extra claims and 85% of them relate to whiplash. The real issue is that we tend not to see any medical reports because of the settlements. It is not just that the cases are not defended; we never see the medical reports, so we do not know exactly what the full figure would be.

[Chris Philp]

My hon. Friend is absolutely right. Because the claims are settled upfront by the payment of, typically, £3,000 or £4,000, there is often no medical examination. There is therefore no evidence on which to assess whether the claim was fraudulent or not, which is why the 1% figure cited by the hon. Member for Hammersmith (Andy Slaughter) is essentially meaningless.

One of the other provisions in the Bill, which we debated on Second Reading, is the requirement for a medical examination to take place before an offer is made. That is an essential reform. In response to an intervention from me, the Secretary of State for Justice confirmed that such medical examinations would have to be face to face. That would begin to address the issue that my hon. Friend the Member for Bexhill and Battle (Huw Merriman) has rightly raised.

[Jo Stevens]

I thank the hon. Gentleman for giving way to me again; he is being very generous. He mentioned the purpose of raising the small claims limit to £5,000, and what that would do. What it will do is deny victims of injury access to justice, as the Government’s own impact assessment expressly states.

[Chris Philp]

I do not accept the premise of the hon. Lady’s intervention. I think that in the case of the smaller claims, whose value is less than £5,000, it is perfectly possible and perfectly reasonable for individuals to submit their own claims—these are relatively simple matters—using the online portal to whose importance my hon. Friend hon. Member for Bromley and Chislehurst drew our attention earlier. Members have also referred to the role that unpaid McKenzie friends can play in assisting members of the public who submit claims. I do not accept the suggestion that bona fide claims will be prevented or inhibited by the proposed reforms.

[Several hon. Members rose—]

[Chris Philp]

The hon. Member for Glasgow South West (Chris Stephens) has tried several times to intervene, so I must give him an opportunity to make his point.

[Chris Stephens (Glasgow South West) (SNP)]

I am grateful to the hon. Gentleman, because he has been generous. May I put a different scenario to him, because this aspect of what he is saying is confusing me? If, in the course of his employment, a resident of Glasgow South West were injured in Croydon South, why would he be treated less favourably because the injury was sustained in the hon. Gentleman’s constituency than he would be in the constituency of Glasgow South West? In Scotland personal injury claims are exempt from the small claims limit, and civil legal aid is available to claimants.

[Chris Philp]

I infer from the hon. Gentleman’s question that these matters are devolved in Scotland. Is that the case?

[Chris Stephens]

It is a different system.

[Chris Philp]

The two cases are treated differently because there is an entirely different legal system in Scotland, and there is a devolved Government there. It is perfectly within the competence of that devolved Government to take a different view. Clearly the Government in Scotland, and the Scottish Parliament, have taken a different view, as they are entitled to do so, but I, as an English MP—as a London MP—take my own view, and it is the one that I have been expressing here today.

[Chris Stephens]

I thank the hon. Gentleman for that, but does he realise that the Bill affects 407,000 people—Scottish residents who are employed in England and Wales?

[Chris Philp]

It may well affect residents of Scotland. Of course, it also affects residents of France, Germany, the United States and Kazakhstan who may choose to visit my constituency. I strongly encourage all of them to do that, by the way. If, heaven forbid, they were to suffer an injury in Croydon South, they would be equivalently affected. The mere fact that there are different rules in different jurisdictions is no reason not to change the rules in this one. Which jurisdiction is the hon. Gentleman suggesting that we align ourselves with? Scotland? France?

[Chris Stephens]

Scotland!

[Chris Philp]

While I admire the hon. Gentleman’s patriotism in inviting us to follow the Scottish example, I am afraid that this Parliament will form its own view on what is appropriate, and I do not think that he can be in any doubt about what I think the right view is on the question before us today.

[Ruth George]

The hon. Gentleman is indeed being very generous. However, he constantly claims that the injuries sustained in road traffic accidents are minor. Written into the Bill is that an injury caused by the

“rupture of a…tendon or ligament in the neck, back or shoulder”

that lasts for up to two years will be included within the limits. Does the hon. Gentleman agree that that sort of “minor injury”, which could affect people for such a large portion of their lives, should be included?

[Chris Philp]

The Government consulted extensively on the definitions before legislating. I understand that the definition to which the hon. Lady has referred was recommended by the Sentencing Council, and I would certainly not wish to second-guess or naysay the recommendation of such an august institution.

I did not quite have the opportunity to finish a point that I was making in response to the hon. Member for Leeds East who, some moments ago, was expressing disagreement with my suggestion that claims were being farmed on an industrial scale. I have given my own personal example, but I also want to submit to the House, in support of what I said, an example uncovered by The Sunday Times in July 2015. It involved a company called Complete Claim Solutions, which was based principally in Brighton but also had an office in the Borough of Croydon—although not in my constituency, I hasten to add. It was discovered to be systematically encouraging members of the public to submit fraudulent claims. It was such a disreputable organisation that it used the film “The Wolf of Wall Street” as an instructional video illustrating the kind of behaviour it considered appropriate. This is no small company; it was responsible for making no fewer than 7 million outbound calls per year. One of its salespeople, Tom Murray, was recorded boasting to a journalist from The Sunday Times that he was able to easily persuade the public to lie. He said that

“if they want that £2,000, they’ll lie.”

He also said:

“When it comes down to a woman who’s had an accident…I’ll make her cry”

as a way of persuading her to make a claim.

That is just one example of the shocking behaviour of these claims management companies, in this example one making 7 million calls per year.

[Several hon. Members rose—]

[Chris Philp]

I have taken up a great deal of the House’s time. [Interruption.] I am glad that I have at last said something that finds favour with the Opposition Front Bench. I am sure many other colleagues wish to contribute to this debate.

There is overwhelming evidence that our system is broken, in terms not only of the claims management companies and the use of alternative business structures to get information into their hands, but of the fundamental incentives inherent in qualified one-way costs shifting. The proposals the Government are contemplating to increase the small claims track limit will do a great deal to choke off this problem at source—to deal with the cause, as the right hon. Member for Kingston and Surbiton requested a few moments ago. For that reason I will be energetically and enthusiastically voting against new clause 1.

Civil Liability Bill [Lords]

Chris Philp Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 4th September 2018 Commons Chamber

[Sir Edward Davey (Kingston and Surbiton) (LD)]

rose—

[Chris Philp (Croydon South) (Con)]

rose—

[Mr Gauke]

I will give way, and then I am keen to make progress.

[Mr Gauke]

If the right hon. Gentleman will forgive me, we will be coming forward very shortly with those amendments. He will not have to wait long to see the details of the amendments. He will see that we are striking the right balance in ensuring that insurance companies can be properly held to account and that we are not placing unnecessary and expensive burdens that ultimately get paid by policyholders. He will see that we are taking this issue forward.

[Chris Philp]

I thank the Secretary of State for giving way. On this point about cost savings being passed on, does he take further comfort from the following two things? First, with no fewer than 94 car insurance companies operating in the UK, it is an intensely competitive market; and, secondly, in the two years after the reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were introduced, car insurance premiums dropped by £50, suggesting that, in that case, the savings were passed on.

[Mr Gauke]

My hon. Friend is right to raise both points. I come back to the fact that the CMA looked at this area and concluded that this is a competitive one. The history suggests that these benefits are passed on, but we are strengthening the Bill and will bring forward amendments very shortly that will enable us all to hold those insurance companies to account.

Many claims involving road traffic accidents will, of course, be genuine. It is absolutely right that they are compensated appropriately. Our reforms are focused on ensuring that genuine claimants have access to justice, receive a proportionate amount of compensation and that the system works for all who use it honestly. However, with major improvements in motoring safety in recent years, including the increased use of integrated seat and head restraints, it would be remiss of the Government not to ask what is going wrong. The reality is that some of these claims are not genuine. In 2017, the insurance industry identified almost 70,000 motor insurance claims that it considered to be fraudulent. As the learned Lord Hope of Craighead noted in the other place, it is necessary to do something to try to minimise the abuse that has given rise to such a large and disproportionate number of claims. The knock-on effect of all these claims is increased insurance premiums, particularly for young people and the elderly. As Members across the House will know, for many people, owning a car is not a luxury, but a necessity. That is especially true of those in rural communities, but it does affect all our constituents. That is why we have pledged in our manifesto to tackle these costs. Taken together, the whiplash measures proposed by the Government could result in savings of around £1.1 billion a year.

Around 85% of the UK motor and liability insurance market have publicly committed to pass on those savings to consumers. The Government intend to hold insurance companies to account by bringing forward an amendment, as I have said, to introduce an effective means for reporting on both the savings made and how they are passed on.

The purpose of our reforms is to compensate the genuinely injured and to improve the system for all by reducing the number and cost of whiplash claims and deterring fraudulent and unmeritorious claims. The measures in the Bill will do that by introducing a ban on settling whiplash claims without medical evidence. That will discourage fraud and incentivise insurers to investigate claims and provide reassurance to claimants that they are being compensated for the true extent of their injuries.

[Chris Philp]

I thank the Secretary of State for giving way so generously. Could he confirm to the House that these medical examinations prior to an offer will have to be face to face?

[Mr Gauke]

They will be face-to-face medical examinations, which I believe will provide the degree of robustness in the system that we need.

The Bill will also provide for a new fixed tariff of compensation for pain, suffering and loss of amenity for whiplash claims. The high number of whiplash claims and compensation levels that we are seeing justifies that tariff being set by the Lord Chancellor. We want fair and proportionate compensation. Its cost should not be unfair to the motorists. We will provide some important flexibilities on how the tariff operates to make sure that it remains fair and adaptable where necessary to exceptional circumstances, inflation and changes in the claims market.

--- Later in debate ---

[Richard Burgon]

My hon. Friend makes a very important point. USDAW and other organisations are right to say that hundreds of thousands of people could be negatively impacted.

Through statutory instrument, the Government seek to increase the small claims limit from £1,000 to £2,000 in all cases and from £1,000 to £5,000 in road traffic accident cases. We are very concerned about what that means in practice. A significant number of claims henceforth will be dealt with through the small claims track procedure, where even in a successful claim, no legal costs are usually awarded.

Without legal fees being covered, tens of thousands of working people will simply be priced out of obtaining legal assistance. Many will drop their cases altogether. Others will fight on but do so representing themselves, not only making their pursuit of justice more difficult, but placing serious pressures on the courts. Others will pay their own legal fees out of their compensation, which in effect means a cut in their compensation levels. Of course, other workers will conclude that when their route to justice through a court or tribunal is removed, they have no alternative but to resort to industrial action to achieve redress.

[Chris Philp]

Is it not a well-established principle both in this country and overseas, in jurisdictions such as France, that for very straightforward, simple matters—these very minor injuries are generally straightforward and simple—having a fast-track process without the involvement of expensive lawyers is a reasonable and legitimate approach?

[Richard Burgon]

We need to ask ourselves what “minor injuries” and “small amounts of money” mean. What is being referred to as a “minor injury” may last up to two years. I do not think that that is a minor injury. What is being referred to as “small amounts of money” is actually, in practice, a lot of money for working people who are struggling to make ends meet.

There was a 90% drop-off in employment tribunal claims when employment tribunal fees were introduced. We fear something similar in personal injury cases, with genuine victims priced out of justice and deterred from pursuing a claim for an injury that was not their fault.

--- Later in debate ---

[Chris Philp (Croydon South) (Con)]

My interest in this area stems from a very minor accident that my wife and I had a few years ago, I think, on the M5. We had a minor collision, and for a year after that I was phoned on my mobile on almost a weekly basis by a claims management company trying to get me to submit a fraudulent personal injury claim. No matter how often I told them that I, my wife and my children had no neck injury, they insisted on trying to incite me to manufacture or claim that I had such an injury with the purpose of making a fraudulent claim. I was told, “You can get £3,000 for just saying your neck hurts.” Even as recently as the past two weeks, my wife and I have both separately had automated phone calls—robo-phone calls—from claims management companies asking us to phone back if we think we have ever been involved in an accident.

That experience prompted me to look further into this subject, and colleagues have cited some of the figures. The hon. Member for Jarrow (Mr Hepburn) asked where the evidence is that there is a problem with widespread fraudulent claims. I have my own anecdotal experience of being personally incited to commit fraud, which obviously I did not do, but the figures are compelling. Over the past decade, the number of road traffic accidents has fallen by 31%, so how can it be that personal injury claims have increased by 50%? The answer is of course that these claims management companies are farming claims and inciting people to commit fraud, as they did with me.

[Ruth George]

rose—

[Chris Philp]

Let me finish the point, then I will take an intervention.

[Kwasi Kwarteng (Spelthorne) (Con)]

My hon. Friend never gives way.

[Chris Philp]

I will give way in a moment. The hon. Member for Jarrow also said that judges have decided that injuries—[Interruption.] I am grateful for the heckling from my own side. The hon. Member for Jarrow said that judges had made these compensation awards, but of course that is not true: under qualified one-way costs shifting, insurance companies have a massive financial incentive to settle even claims without merit before they go to court, because even if they win they pay the costs and the costs are often much bigger than the value of the claim. So insurance companies simply settle the claim without a medical examination and without it ever going to court. Therefore, all these compensation claims have not been adjudicated by a judge, although the hon. Gentleman erroneously suggested that they had; they are simply settled immediately because that is the cheapest way of doing it. There is no judicial intervention in almost any of these cases.

[Ruth George]

My intervention is a question to you, asking how you think the claims management company got hold of your details to be able to phone you and your wife about your accident. Do you agree that your details must have been passed on by insurance companies, who then complain about these very claims management companies, because that is the only place they could have got your personal details and the accident information from? That is what we should be cutting down on.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. May I just reiterate that the word “you” should be used to address the Chair? My personal details have not been passed on to anybody.

[Chris Philp]

Thank you, Madam Deputy Speaker. The hon. Member for High Peak (Ruth George) might well be correct in her assumption about where the details came from.

A ban on referral fees was introduced a few years ago, but some insurance companies have sought to circumvent it by using what they euphemistically term “alternative business structures”. This is where an insurance company effectively owns an equity stake in a claims management company or a claimant law firm and extracts value in that way. I know that the Minister is very attentive to these matters, and I suggest to him that we should look at widening that ban on referral fees to include a ban on so-called alternative business structures. We should ban insurance companies from having an equity stake or any other financial interest in claims management companies or in claimant law firms, to make our existing ban on referral fees a little bit more robust. I say that to make the point that not everyone on the Government Benches is batting for the insurance companies.

In terms of public opinion, 58% of the public believe that personal injury lawyers and claims management companies are responsible for creating a compensation culture, and two thirds of the public believe that a compensation culture exists. My hon. Friend the Member for North Warwickshire (Craig Tracey) has described the cost to individual motorists. The cost is being borne by our constituents, many of whom struggle to make ends meet. When 47% of the value of claims is consumed by costs and legal fees, the system is clearly not functioning properly.

I very much welcome the measures in the Bill, particularly the ban on pre-medical examination offers. I was delighted by the Secretary of State’s confirmation that the examinations will be face-to-face examinations. That is an extremely important clarification. As far as I can tell, the only sanction in the Bill against companies making pre-med offers will be a fine levied by the Financial Conduct Authority. I say to the Minister that I hope that those fines will be substantial. The tariff schedule is simple and clear. It is set at about the same level as that of awards made under the current judicial system, so it is not being substantially discounted, but it is simple, transparent and requires less intervention by the judiciary and the justice system, thereby reducing costs. Many European countries, including France, have a similar tariff system. I welcome this simplification and the associated reduction in costs.

The reforms to the personal injury discount rate are long overdue, and I welcome them. If Members are concerned about them, I would just say that periodic payment orders are available to pretty much every claimant if they feel that they would be better served in that way. They would guarantee that every penny due was paid over. I suggest that periodic payment orders are a better mechanism for avoiding the risk of someone being paid a large amount of money on day one and perhaps being given bad financial advice or spending the money on something other than their own care. I suggest that the Government consider making periodic payment orders the default option and that a lump sum award should be made only if a judge decides that there is a good reason not to set up a periodic payment order. I think that PPOs provide better protection for the claimant.

There are one or two important measures that are not in the Bill but are associated with it. I strongly support the increase in the small claims track limit to £5,000 for road traffic accident personal injury claims. The limit for most compensation claims is £10,000, so we might ask why the limit here is only £5,000 when in almost every other sphere it is £10,000. The Government have already made a significant concession by setting the limit at £5,000, rather than at £10,000, as it is for everything else.

I understand that there might be imminent legislation from the Department for Digital, Culture, Media and Sport to introduce a general ban on cold calling in this area. If that is true, it is long overdue and will be very welcome. Claims management companies should not be making these calls at all, and they should be completely prohibited. I have already commented on alternative business structures. I have had personal experience of this; the public are being incited to commit fraud on an industrial scale. There is no reason why the level of claims in the United Kingdom should be so much higher than in other European countries. These are welcome measures, and the sooner they hit the statute book, the better.

--- Later in debate ---

[Kwasi Kwarteng (Spelthorne) (Con)]

Several issues have been raised in this important debate, but I wish to address two main points. Whiplash claims have been a chronic problem in British insurance and road usage for some time. Eight years ago, I joined the Transport Committee, and I served on it for three years. We looked into the issue more than once and found that whiplash claims had gone up in England, so we looked across Europe. What has not been mentioned in the debate is that were Members to look at whiplash rates across the continent of Europe, they would be astonished at how low the incidence of whiplash is. The Transport Committee looked at the issue, including whiplash rates in Germany, five years ago. [Interruption.] I notice the newly appointed Whip, my hon. Friend the Member for Milton Keynes South (Iain Stewart), nodding in agreement. He served on the Committee as well and will remember that we looked into whiplash in Europe and were astonished at the low incidence of claims across the continent. That cannot be because somehow the necks in Germany are more robust than those in Britain. It cannot be a question of Germans being physically different from people in Britain. The case was clearly made that we had a problem with whiplash claims that was specific to the United Kingdom.

My hon. Friend the Member for South Norfolk (Mr Bacon) mentioned the fact that Aviva issued a report more than 10 years ago. Yes, I know that Aviva is a bad, evil insurance company that makes profits, that is successful and that employs people—I know that that is all to be deprecated—but the fact is that its report suggested more than 10 years ago that there was a problem with whiplash. The facts speak for themselves. The idea that over 10 years we could have a 30% reduction in accidents and yet a 40% increase in whiplash claims seems incredible. It cannot be the case that they are inversely correlated. It cannot be the case that as there were fewer accidents, we would have more whiplash claims from accidents. That does not make any sense whatsoever. I am afraid that the Opposition Members who have spoken have failed to address that.

Given the fact that the Transport Committee looked into the issue four or five years ago and that people issued reports more than 10 years ago about whiplash being a problem, and given that we know—as Opposition Members acknowledge—that unscrupulous claims companies are cold calling people, I suggest to Opposition Members that they cannot have it both ways. It cannot be the case that the whiplash increase is simply a scare story whipped up by the insurance industry and at the same time the claims companies are cold calling and being equally unscrupulous. It has to be one or the other. The insurers cannot be suggesting that it is fraudulent while compensation claims companies are at the same time pushing fraudulent claims. The two go together.

The Bill is timely; indeed, it is long overdue in respect of the measures on whiplash claims. My hon. Friend the Member for Croydon South (Chris Philp) was quite right that it cannot simply be a blank cheque for insurers. The Government have to look more closely at how the insurance companies are going to pass on some of the perceived and anticipated benefits of reducing whiplash claims and ultimately reduce premiums for consumers. I fully appreciate that in many ways it has been quite a difficult time for the insurance industry. Insurance premium tax has gone up from 6% at the beginning of the decade to 12%. That is greater taxation. Some of us have argued against such steep increases, but those increases have happened. The idea that, somehow, the insurance industry is a den of profiteers or a wicked industry that acts against the interests of our constituents is silly; it is a crazy idea. It is a very successful British industry, and something that we should be supporting. It is one of a number of industries—not a huge number of industries—in which we are world leaders, so it is very disappointing to hear, once again, the industry being denigrated by Opposition Members.

[Chris Philp]

The hon. Member for Hammersmith (Andy Slaughter) said that, at £250 million a year, the insurance industry was making excessive profits. Bearing in mind that there are 25 million cars in the UK, that works out at a profit of £10 per insurance policy. That is hardly profiteering, is it?

[Kwasi Kwarteng]

I would not have thought that it could be described as profiteering. It is a legitimate business. I know that many Opposition Members do not even believe in private enterprise or business. [Interruption.] They do not like that. They laugh rather nervously at my suggestion, but we know exactly where they stand. The idea that companies should make a profit—heaven forbid—is anathema to them. This is a party whose shadow Chancellor is, I believe, listed in “Who’s Who” as wanting to overthrow the capitalist system. He is an out and out Marxist. We can laugh at these things, but they are on the record, and it is actually very serious.

The insurance company is a success story. It does make profits, but we have to recognise and be very honest about the fact that whiplash claims are, in many instances, fraudulent. People in this House have described how they have been cold called. I have been sent countless emails asking me to claim compensation for accidents that I did not even know I was involved in and I think many other people have similar experiences. This is a timely piece of legislation. I am delighted that, after many years, we will tackle this issue.

I just want to touch briefly on the discount rate. I remember when it was reduced a little more than a year ago—I think it was in February last year—that there was huge concern about the very low rate. I believe that it was a negative rate. That was not remotely sustainable and I am delighted that the Government’s legislation is trying to put the discount rate issue on a more sustainable and rational basis. There is little to disagree with in the Bill. It is a good piece of legislation and I am very happy to support it on Second Reading.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Rory Stewart)]

It has been a great privilege to be able to sit through this debate with an extraordinary number of Members, many of whom have very direct experience as lawyers in the claimant industry or connections to the insurance industry. It has therefore been a very well-informed debate.

Our proposals in this Bill are serious, but to some extent matters of housekeeping. They follow a lengthy and extensive consultation over a number of years, and they attempt essentially to do three things: first, to try to improve the administration of justice in certain key, but relatively limited, ways; secondly, to address some issues around public morality and honesty; and, thirdly, to make sure we guard resources whether in the interests of people paying motor premiums or those who are supporting the NHS.

A number of objections have been made by Members across the Chamber and seven of them have stood out. Four of those I would respectfully and politely disagree with, but three have some real heft and we will take them into account in proceeding with this Bill.

The first of those objections, from the hon. Members for Ashfield (Gloria De Piero) and for Jarrow (Mr Hepburn), largely focused on the questions of damage in the workplace and to people with non-whiplash-related injuries. This is not strictly relevant to this Bill, which deals with whiplash-related injuries. The change in terms of non-whiplash-related injuries is proposed to be from £1,000 to £2,000, roughly in line with RPI since it was set in 1991, and dealing with roughly the same category of cases that were intended when the legislation was first introduced in 1991.

The second issue that has been raised by some hon. Members is that there is no evidence. This will be somewhat depressing for the people who have conducted an extremely extensive consultation, which has taken evidence not only from the insurance industry, as has been suggested, but from the Department for Work and Pensions, from claimant lawyers, from the Medical Reporting Organisation and from a large public consultation.

Thirdly, the hon. Member for Jarrow and, to a certain extent, the hon. Members for Enfield, Southgate (Bambos Charalambous) and for Cardiff Central (Jo Stevens) suggested that very few fraudulent whiplash claims were being made. This is a difficult issue to pursue, as my hon. Friend the Member for Croydon South (Chris Philp) eloquently pointed out, because of the asymmetry of the information. In other words, it is extremely difficult to prove that someone has a whiplash claim because it is, by its very nature, a concealed injury. Nevertheless, the statistics—in particular, those raised by my hon. Friend the Member for Spelthorne (Kwasi Kwarteng)—show that the number of traffic accidents has decreased by a third while the number of claims has gone up by 40%. At the same time, as my hon. Friend the Member for Walsall North (Eddie Hughes) pointed out, cars have become considerably safer. All this suggests that something is going on in relation to these claims.

The fourth objection, raised by the hon. Member for Lewisham West and Penge (Ellie Reeves), related to access to justice. The suggestion was that it was inappropriate to say that people should proceed to a small claims court for claims of under £5,000. The vast majority of existing claims do not proceed to court at all. The district judges who are ruling on these claims are used to dealing with claims of up to £10,000.

The three more serious objections are those that we are addressing. One of them is the idea that the insurance industry will not pass on the savings to motorists in the form of premium savings. As the Secretary of State has indicated, we will therefore be introducing an amendment, which will be with the House shortly and will be available in Committee and on Report, to address this exact concern, which was expressed by the hon. Members for Harrow West (Gareth Thomas), for Leeds East (Richard Burgon) and for Jarrow, and by my hon. Friend the Member for South Leicestershire (Alberto Costa), as well as by the hon. Members for High Peak (Ruth George) and for Hammersmith (Andy Slaughter) .

The second serious concern was about vulnerable road users, and it was raised by my hon. Friend the Member for Chelmsford (Vicky Ford) and by the hon. Members for Cambridge (Daniel Zeichner) and for Brentford and Isleworth (Ruth Cadbury). There, too, we will be introducing changes to ensure that vulnerable road users are excluded from the scope of the Bill and from the raise in the limit. Thirdly, my hon. Friend the Member for Croydon South and others raised concerns around periodic payment orders. The Secretary of State has written to the Master of the Rolls to ensure that PPOs are introduced more frequently, in order to ensure that vulnerable people suffering problems around lifetime care costs are genuinely able to get regular, sustainable and reliable payments out of the insurance industry to sustain them.

[Chris Philp]

Will the Minister give way?

[Rory Stewart]

Very briefly, because I have been told to stop in three minutes.

[Chris Philp]

What does the Minister think of the idea that we might tweak the system so that periodic payment orders became the default setting unless a judge agreed that there was a good reason to do otherwise and make a lump sum payment?

[Rory Stewart]

I am very happy to take that issue offline with my hon. Friend. There is a lot to be said for PPOs.

In essence, there are three fundamental arguments that we would make in favour of the Bill. The first is that we need to ensure that the administration of justice is proportionate and sustainable. As my hon. Friend the Member for Chelmsford has pointed out, the fact that nearly 40% of the costs are currently being absorbed by legal fees is a serious issue. Secondly, we need to ensure that the system is straightforward. As my hon. Friend the Member for North Warwickshire (Craig Tracey) pointed out, the introduction of the portal will ensure that the administration becomes more straightforward. Thirdly, my hon. Friend the Member for Croydon South has pointed out that the introduction of fixed tariffs, on the French model, will make the administration of justice more predictable.

The question of fraud and morality is also at the centre of these changes. As my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) said, fraud does happen, and my hon. Friend the Member for South Norfolk (Mr Bacon) has pointed out that it can often be extremely flagrant. My hon. Friends the Members for Spelthorne and for Walsall North (Eddie Hughes) said that even if we cannot prove every case of fraud, it is at least true that claims are becoming more exaggerated. Indeed, as my hon. Friend the Member for Walsall North also pointed out, that can have medical consequences. To quote the polite words of the New England Journal of Medicine:

“The elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury.”

That was the point made by my hon. Friend about the situation in Greece.

The fundamental point is that the Government have a responsibility to balance the administration of justice and honesty with the broader social costs. As my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) pointed out, insurance premiums have been rising, and we need to take them into account. As my hon. Friends the Members for South Norfolk and for Bexhill and Battle (Huw Merriman), premiums are rising in rural areas in particular. Again, as my hon. Friend the Member for North Warwickshire pointed out, the cost of over £1 billion to the NHS that will be addressed through this legislation is one that is borne by every taxpayer and is causing increasing concern among medical professionals.

This is a serious piece of legislation that addresses various focused points. It comes at the end of an extensive consultation, during which we have made several concessions to address the concerns expressed across the House. During the House of Lords’ consideration of the Bill, we introduced new definitions for whiplash, we involved the Lord Chief Justices in the process, and we adjusted some of the timings for the discount rate. Through this legislation we believe that we can contribute towards a more honest and proportional system that takes into account the significant social costs of exaggerated claims. Through a more simple, predictable, effective and rapid administration of justice, we can protect a range of social and economic interests while balancing the rights of road users, claimants, defendants and, ultimately, citizens as taxpayers.

Question put and agreed to.

Bill accordingly read a Second time.

CIVIL LIABILITY BILL [LORDS] (PROGRAMME)

Motion made, and Question put forthwith (Standing Order No. 83A (7)),

That the following provisions shall apply to the Civil Liability Bill [Lords]:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 9 October.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

(7) Any other proceedings on the Bill may be programmed.—(Jeremy Quin.)

Question agreed to.

CIVIL LIABILITY BILL [LORDS] (MONEY)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Civil Liability Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of any expenditure incurred under or by virtue of the Act by the Lord Chancellor.—(Jeremy Quin.)

Question agreed to.

Prisons (Interference with Wireless Telegraphy) Bill

Chris Philp Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Friday 6th July 2018 Commons Chamber

[Chris Philp (Croydon South) (Con)]

It is a great pleasure to follow my hon. Friend the Member for Banbury (Victoria Prentis) in supporting this very important private Member’s Bill, and let me repeat the congratulations that have been expressed to my hon. Friend the Member for Lewes (Maria Caulfield), who has shown such deftness in guiding this private Member’s Bill this far. She has done a fantastic job and I strongly congratulate her on her fantastic work. This private Member’s Bill is incredibly important, because the widespread—I am afraid that it is widespread—use of mobile phones in our prison estate is causing very serious problems. I will use three cases to illustrate exactly how serious these problems are, because individual cases are always more powerful than simply quoting statistics.

The first case is that of Shaun Walmsley, 30 years old, who had been imprisoned in HMP Liverpool for a particularly brutal gangland murder. This man was a high-level criminal, running criminal gangs, and had murdered one of his criminal associates. He engineered a hospital appointment by feigning illness and, over the course of three months, used a mobile phone that he had illicitly obtained in prison to plan his escape. During his second hospital appointment, he was sprung out of custody by masked men brandishing machine guns in an episode that police say had been planned over a period of three months, using the mobile phone that he illicitly had. If measures such as those in the Bill had been in place, it would have been impossible for Shaun Walmsley to plan and execute his escape, and the prison guards who were accompanying him to the hospital—Aintree University Hospital in Liverpool—would not have faced machine gun-wielding thugs as they escorted the prisoner.

[Craig Tracey (North Warwickshire) (Con)]

I also congratulate my hon. Friend the Member for Lewes (Maria Caulfield) on progressing this Bill so well. As my hon. Friend the Member for Croydon South (Chris Philp) mentions, a lot has been said about making calls, but I think the point he is making is that, with rapidly advancing technology, the problem is much broader because it is about access to such things as the internet and applications, which are aiding criminals in prisons, and we need to stamp that out as well.

[Chris Philp]

My hon. Friend makes an extremely good point: this is about not just voice calls, but data. The case studies that I am mentioning illustrate that the use of mobile phones in prisons is not a harmless activity that we perhaps frown upon, but to some degree, can turn a blind eye to. In fact, what we are seeing is the organisation of very serious criminal activity being facilitated by mobile phones. A moment ago, I mentioned an escape involving machine gun-toting masked men.

A second example is that of Imran Bashir, who was incarcerated in HMP Garth in Lancashire. He was using a mobile phone in that prison to co-ordinate a widespread heroin-smuggling and heroin-dealing network, bringing untold misery probably to hundreds of people who were buying and taking heroin. He was running this criminal enterprise via a series of conference calls, which he had organised and was participating in using his mobile phone. My hon. Friend mentioned the use of internet and data. This man was using conference call facilities to organise his criminal network. Had measures such as those in the Bill been in place, it would have been impossible for him to do that.

A third example is that of convicted armed robber Craig Hickinbottom, aged 65. He was serving a prison sentence but was using a mobile phone that was in his possession to run a very well-organised smuggling network, which was bringing prohibited items into not just his prison, but several prisons in Scotland and the north-west. He was only uncovered when cameras on the prison perimeter, which were being used to film wildlife—that might have been an elaborate cover by the authorities—spotted drones flying over the prison walls carrying prohibited material, some of which was suspended on fishing line.

The subsequent investigation revealed that Craig Hickinbottom had been co-ordinating a vast smuggling network over many prisons. More than £1 million-worth of banned material had been smuggled in, including drugs, mobile phones, SIM cards, offensive weapons, a screwdriver—I assume that it was intended to be used as a weapon—a Freeview box and a remote control. He was eventually convicted and given a new prison sentence. All that nefarious activity was facilitated by his having a mobile phone.

The prohibition of mobile phones in prison is no minor matter. I have given just three examples of extraordinarily serious criminal activity being organised and orchestrated using mobile phones. Taking mobile phones out of our prisons will prevent that serious criminal activity. The Bill therefore has my complete support.

I have two questions, either for my hon. Friend the Member for Lewes or for the Minister—if he does not intend to make a speech, I will happily take an intervention. My first question relates to clause 1(2), which states:

“The Secretary of State may authorise a public communications provider to interfere with wireless telegraphy.”

The word “authorise” indicates that a provider can be permitted to do that, but can they be compelled? Can the Secretary of State actually require a provider to jam the signal or in some other way prevent mobile communications? The Secretary of State may authorise it, but what if the provider declines to act? Does the word “authorise” give the Secretary of State enough power? Should it not be replaced with “compel”? I see that the Minister is tempted to intervene, but he is indicating—with extraordinarily dextrous hand signals—that he will return to that point in due course.

My second question does not relate directly to the legislation, but it touches on it. The Bill relates to public communications providers, but is it possible to install equipment in prisons to allow the signal to be jammed independently of the providers? Could the Prison Service bring a portable device into a prison in order to jam the signal?

[The Minister of State, Ministry of Justice (Rory Stewart)]

The answer is yes. We absolutely can take our own devices into prisons in order to do that independently of a mobile phone company.

[Chris Philp]

I am delighted to hear that. Could the Minister elaborate further by commenting on how frequently that is done?

[Rory Stewart]

There are some technological limitations, because the mobile phone company transmits at different frequencies and at different powers. If we were to prevent the use of mobile phones through our own device, we would have to anticipate the frequency and the nature of the transmission. That is what we have done in the past, but it is not always technologically adequate, and that is the reason for the Bill.

[Chris Philp]

I thank the Minister for that thorough answer. I look forward to hearing his comments in due course on whether the word “compel” might be more appropriate than “authorise”.

I strongly support the removal of mobile phones from our prison estate and therefore support the Bill. I strongly encourage the Minister to step up the level of physical searches in prisons. Hopefully he will comment on that too. It is a pleasure to support the Bill, and an even greater pleasure to support my hon. Friend the Member for Lewes.

--- Later in debate ---

[Rory Stewart]

Yes; in essence the point about the mobile telephone is that we need to understand it not as a telephone. It is of course a communications device and as such, particularly in telephonic communication, it can be used to control criminal gangs, but we must also take on board its full use, and understand that it is also a recording device, a way of accessing the internet, and a wallet in which money is contained and through which money can be transferred, and that it therefore can be used to intimidate people—to intimidate witnesses—to run criminal gangs and do all sorts of things right through to piloting a drone through a window. Once we understand that, we begin to understand that this device is a weapon, not a communications device, and what follows from that are all the things Members have raised in terms of criminality: the importing of illicit substances, the accessing of illicit entertainment, the making of illicit money, the running of illicit gangs, the extortion of money, the undermining of a prison regime, the committing of crime, its use for terrorism and for promoting disturbances, and create victims through social media.

All of which brings me finally back to the legislation itself. On the surface, this Bill seems very straightforward, and in fact of course, as Members have pointed out, the core of this legislation sits at proposed new subsection (2A) to the Prisons (Interference with Wireless Telegraphy) Act 2012:

“The Secretary of State may authorise a public communications provider to interfere with wireless telegraphy.”

The key point here is that it is addressed to the public communications provider rather than, as is the case in the 2012 legislation, to the governor of a prison or the director of a private prison.

[Chris Philp]

I touched in my speech on a question about this proposed provision, asking whether the word “authorise” confers adequate power on a Minister or Secretary of State: if they authorise someone to do something, they may not follow that authorisation—they may ignore him. Should that word therefore be changed to “compel” or “require” in order to give the Secretary of State the power he or she needs?

[Rory Stewart]

That is an interesting question, and the answer is that, as currently drafted, this word “authorise” means exactly that: it is giving legal permission. The anxiety of the mobile telephone companies would be that without that authorisation, were they to conduct these operations they would be in breach of Ofcom regulations and ultimately in breach of article 8 of the Human Rights Act 1998. Under this legislation therefore, all we are doing is saying to a willing mobile telephone company that, should it voluntarily wish to work with us, this gives it the authority to do so.

My hon. Friend the Member for Croydon South has raised an interesting point, however. What would happen if the mobile telephone company were to turn round and refuse to comply? To some extent that is hypothetical, because we have not yet encountered a mobile telephone provider that is not prepared to work with us on this, for a range of reasons. The mobile telephone companies’ relationship with Ofcom and the Government is complex, deep and interlinked, and they generally wish to retain the goodwill of the Government. It is also true that in some cases we would have a commercial contract with a mobile telephone company to undertake this work, so it would have a financial interest in working with us. Hypothetically, however, it remains the case that under this legislation, a mobile telephone company would be able to refuse to provide the service. We do not believe that it would do so, but my hon. Friend is absolutely correct to say that, theoretically, it could do so under this legislation.

--- Later in debate ---

[Rory Stewart]

That is an enormous relief.

[Chris Philp]

The Minister has mentioned the word “authorise” again. I heard his clarification earlier. As the Bill is drafted, the mobile phone companies would not be absolutely required to comply, but can he confirm that it is the expectation and the intention of the Government—and, I think, of this House—that when the Government ask a public communications provider to interfere with wireless telegraphy in a prison, it will comply with that request, and that the Government and the House would take a dim view if any public communications provider did not comply with such a request?

[Rory Stewart]

Without wishing to sound like Mr Speaker, I think my hon. Friend has made his point with great force and clarity, and I am sure that anyone listening to the debate will have taken on board his message very clearly.

In conclusion, I should like to thank hon. and right hon. Members for their patience. This has been a relatively long debate, and we have touched in extreme and excruciating detail on the philosophical foundations of the legislation, as well as on the technological applications of mobile telephones. It has been a really worthwhile debate. Having spoken at some length, I want to finish with a short moment of sincerity to thank my hon. Friend the Member for Lewes, in particular, and also other right hon. and hon. Members for their often intelligent, interesting and illuminating contributions. The Bill matters: it goes to the heart of how prisons are run, what they exist for, how we punish someone and what a prisoner can do from within a prison’s walls to intimidate prison officers and other prisoners, profit themselves and organise crime in broader society.

Giving Government the power to ensure that these illegal acts, currently punishable by a maximum sentence of up to two years in prison, can be prevented with the latest technology and the consent of mobile telephone operators, which will allow us to pinpoint the devices, block them and follow their traffic, will be an extraordinary contribution to reducing drugs, violence and disorder in prisons, making them safer and more decent, and ultimately protecting the broader public.

Assaults on Emergency Workers (Offences) Bill

Chris Philp Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Friday 27th April 2018 Commons Chamber

The fact is that some serious assaults are being charged as an assault against a police officer. I heard of one case in which a police officer lost her finger following an attack by a female defendant, which absolutely should have attracted a higher sentence than the six months available to magistrates. The woman had attacked four other police officers on the same occasion, as well having previously been convicted of multiple previous assaults on police officers, which goes back to the point raised by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg). That may be an under-charging issue, but it is one that we see time and again in the courts.

[Chris Philp (Croydon South) (Con)]

I just want to clarify something. When my hon. Friend talks about an under-charging issue, does he mean that, in the example of an officer’s finger being severed, a more serious charge could have been brought—grievous bodily harm, I would imagine—that would have attracted a much higher sentence? Therefore, it may not be primary legislation that needs to be changed, but simply the charging practices of the Crown Prosecution Service.

[Philip Davies]

That is all very well in theory, and I am pretty sure that that would do the trick in an academic dissertation, but the problem is what we see in the real world time and again. I would be astonished if any Member could not think of an example of a criminal who had committed a serious offence being under-charged and prosecuted for a lesser offence. The reasons for that are numerous, but the biggest one is as follows.

This country supposedly does not have the American system of plea bargaining, but we do in reality. No matter how much the criminal justice system would deny it, we do have that system. The CPS will say that it is going to charge somebody with a serious offence, and the person will say, “I am going to plead not guilty to that.” The defence solicitor or barrister will no doubt then say, “I’ll tell you what, if you charge them with a lesser offence, my client will plead guilty.” So to avoid a trial or to save time or whatever, the CPS, which often feels overstretched, will say, “Oh, go on then. We will charge them for the lesser offence. It will not be the actual offence that they committed, but it will get them a criminal record and get us a guilty plea. It will tidy up our figures, and we will be able to say that we have brought somebody to justice.” The CPS will then consider that a great success. Meanwhile, back at the ranch, the victim of the crime, who presumably is barely even considered in this box-ticking, target-driven agenda, sees the person who committed the offence against them being given a derisory sentence. That is what we see time after time. Anybody who thinks that we do not is not living in the real world, because it happens on a daily basis in the criminal justice system.

Although my hon. Friend the Member for Croydon South (Chris Philp) is right that the responsibility clearly lies with the CPS to charge people appropriately for the offence they have committed—nobody disagrees with that principle—we know that that does not happen in practice. Therefore, even if the CPS does what it seems to do on a regular basis and charges people for a lesser offence, it is beholden upon us to ensure that the judge or magistrate has an appropriate sentence to give out when the most egregious cases come before the courts. In the example that I just gave, a police officer actually lost a finger but the defendant was charged with assaulting a police officer, and we cannot let it stand that the sentence can be just six months, or even just 12 months.

Parole Board: Transparency and Victim Support

Chris Philp Excerpts

Friday 19th January 2018 Commons Chamber

[Mr Gauke]

Yes, clearly the direction we are moving in is towards greater transparency. There are some details that we need to master and fully understand, but the direction of travel is clear.

[Chris Philp (Croydon South) (Con)]

I welcome the extended review that the Justice Secretary announced. Will he confirm to the House that it will include a very detailed assessment of the decision-making processes that the Parole Board goes through, particularly in reference to expert reports from, for example, Dr Jackie Craissati in this case, that are at the heart of such decisions, in order to ensure that those experts are suitable to give the expert advice that they provide?

[Mr Gauke]

This is clearly going to be a broad review of how the Parole Board works, and the importance of particular expert evidence will be part of the process of considering how it operates.

European Union (Withdrawal) Bill

Chris Philp Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Chris Philp (Croydon South) (Con)]

It is a pleasure to follow the energetic speech of the hon. Member for Stoke-on-Trent Central (Gareth Snell). This is of course a Second Reading debate and we should properly be considering the general objectives and principles of the legislation. I think there is in fact some measure of consensus around the fact that such a Bill, or one similar to it, is required to give practical effect to our leaving the European Union. Even the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) admitted in his speech on Thursday that something like this was required, and even the House of Lords Constitution Committee accepts that something like this is necessary. It is clearly reasonable, when we have to pass 1,000 statutory instruments to effect leaving the European Union, that we do something like this Bill. I remind Opposition Members that all those 1,000 statutory instruments are votable, should they wish. The idea there is no democratic scrutiny is not accurate.

On Thursday and today, we have heard Opposition Members claim that the Bill gives unfettered power to the Executive, but it is very clear in both clauses 7 and 9 that the powers are circumscribed. Clause 7(1) states that the powers can be used only to correct a

“failure of retained EU law…or any…deficiency”.

Clause 9(1) clearly states that the powers can be used only to implement the exit agreement, an agreement on which this House will have a vote. The idea that the powers can be used across the board does not bear scrutiny.

Clauses 7(6) and 9(3) make it completely clear that a whole range of things, such as introducing new criminal laws, cannot be done under this Bill. The powers are fairly clearly circumscribed. To top that, there are sunset clauses that mean the powers are strictly time-limited, which gives further reassurance.

Clauses 7(4) and 9(2) mean that the Bill itself can be amended by regulation. If there is one little tweak we might consider, it is exempting the sunset clauses from that provision, but that is the kind of fine tuning that can quite properly happen in Committee, rather than on Second Reading.

I have heard quite a lot of extraordinary hyperbole and crocodile tears from some Opposition Members in this debate. The right hon. and learned Member for Holborn and St Pancras, who is not in his place, said on Thursday that he feels the Bill disenfranchises Parliament, but for the last 40 years he has been perfectly content for regulations and laws passed in Brussels by qualified majority voting, with no veto or definitive say by the UK Government, to be implemented in UK law by Orders in Council without so much as a sniff of a vote in this House. Where was his righteous indignation for the whole of the last 40 years?

The hon. Member for Holborn and Kilburn, who is in her place—[Interruption.] Sorry, Hampstead and Kilburn. I should know, having stood in that constituency in 2010. The hon. Member for Hampstead and Kilburn (Tulip Siddiq) said the Bill is a wholesale threat to rights under EU law, but the Bill copies and pastes wholesale those rights into UK law. Any material amendment to those rights would have to be passed by a vote of this House. She specifically referenced human rights law. She obviously has not read clauses 7(6)(e) and 9(3)(d).

[Tulip Siddiq]

I have read them.

[Chris Philp]

The hon. Lady should know, then, that the Bill expressly prohibits these powers being used in any way to interfere with human rights law. She will have seen that the Bill expressly precludes her concerns.

The Scottish National party is going into paroxysms of apoplexy at the merest hint that London might exercise even a smidgen of the powers currently exercised in Brussels. I have not heard a single word of protest in the two years I have been a Member about those self-same powers being exercised in Brussels. Where were the SNP’s shouts of indignation then?

Everyone seems to agree that the Bill is necessary. No doubt there are points of detail that can and will be improved on, but anyone who is serious about implementing the British public’s decision should vote for Second Reading this evening.

Prisons and Courts Bill (Third sitting)

Chris Philp Excerpts

Committee Debate: 3rd Sitting: House of Commons
Wednesday 29th March 2017 Public Bill Committees

[Mr Gyimah]

The amendment is about a duty for the Secretary of State to co-operate with other agencies and bodies whose functions are relevant to the purpose outlined in the Bill. There are already well-established ways of working between governors and different agencies and bodies, some with their own pre-existing legislation. For example, the multi-agency public protection arrangements provide a process through which the police, probation and prison services work together with other agencies to manage the risks posed by violent and sexual offenders living in the community, in order best to protect the public. Probation is one of the represented bodies, along with the police, local authorities, fire and rescue authorities and health, represented on community safety partnerships, which were set up under the Crime and Disorder Act 1998. The responsible authorities work together to protect their local communities from crime and help people feel safer.

[Chris Philp (Croydon South) (Con)]

Will the Minister confirm whether the Prison Service also works closely with the Home Office to ensure that we act quickly to deport foreign national offenders at the end of their sentences?

[Mr Gyimah]

I assure my hon. Friend that we work closely with the Home Office, which is ultimately responsible for deportation. The Prison Service has to facilitate its work in prisons. There is a lead Ministers group, including Ministers from the Home Office, the Foreign Office and the Department for International Development, which meets regularly to discuss all the issues about moving foreign national offenders under various schemes.

New legislation is not needed to ensure that co-operation between governors and other agencies and bodies continues; governors do that on a daily basis to ensure that different services, from education and employment to healthcare, are carried out. That can be seen in the relationships with employers, such as Timpson and Halfords, which run academies within prison to train offenders for employment on release, and in formal arrangements with NHS England to ensure that prisoners have access to the healthcare they need. We are introducing new performance measures to hold governors to account for their performance in a wide range of areas, including education and housing, and we expect governors to work closely with other agencies and bodies to do that.

The hon. Member for Bolton South East mentioned probation and, in particular, the community rehabilitation companies. I assure her that we are going through a probation system review and will publish the results shortly. That will deal with some of the challenges she outlined. Furthermore, the National Probation Service—as opposed to the community rehabilitation companies—is already covered by Her Majesty’s Prison and Probation Service, so the amendment would have the effect of creating a duty for the Secretary of State to co-operate with herself. We already have a formal contract with CRCs, so it would be unnecessary to create an additional duty to co-operate. I therefore urge the hon. Lady to withdraw the amendment.

Prisons and Courts Bill (Second sitting)

Chris Philp Excerpts

Committee Debate: 2nd Sitting: House of Commons
Tuesday 28th March 2017 Public Bill Committees

[Suella Fernandes]

Q Does Mr Dixon wish to comment?

Brett Dixon: Yes, I would—thank you.

In some respects, the debate has moved on from fraud and low-velocity impact. That is because of the provisions that were enacted in relation to fundamental dishonesty, which are in the civil procedure rules at rule 44.16 and in section 57 of the Criminal Justice and Courts Act 2015.

If a defendant thinks that there is fundamental dishonesty involved in a claim, they have two opportunities to challenge it. They can challenge it at the conclusion of a case, when the case is unsuccessful, and then seek their costs. They can also challenge a case if it is successful but there is a question mark over what has been claimed, and that can lead to a claimant losing all of their damages and to a cost order as well. There are sufficient drivers in the system and levers that can be pulled to discourage any type of claim like that.

It is important, though, to understand this in context. First, the most important thing is to consider proven fraud. I see in practice, from different members of our organisation, many allegations of fraud or fundamental dishonesty that are not made out when tested by the court. You only need to look at a recent Court of Appeal decision by Lord Justice Briggs in Qader & Ors v. Esure Services Limited to see that there is a developing gaming of the system by insurers to prevent people from being able to challenge those cases properly. That case was about trying to prevent a claimant from having access to the same tools to fight the allegations as a defendant has to bring them.

There was an implicit recognition from the Court of Appeal in that judgment that it is important that a person who is accused of something like that has the ability and resources to answer it. It is a serious issue for somebody accused of it and it is about what is proven fraud, rather than vague statistics of about 70,000 cases, where we are not quite sure whether it is fraud, detected fraud or suspicion of fraud and what standard that is at. It is for the judiciary to decide if that is an issue and, if it is found to be an issue, that person should be dealt with. Equally, if you are going to have access to justice and equal rights on a level playing field, they need the ability to challenge it in appropriate circumstances.

[Chris Philp (Croydon South) (Con)]

Q Welcome to our panellists this afternoon. About three years ago, my wife and I were involved in a relatively minor road traffic accident. For the year that followed that, I was phoned up on my mobile almost every week by people talking about the accident and trying to make me submit a claim for a neck injury. No matter how many times I told them that neither I nor my family had suffered any injury, they persisted in trying to incite me to commit fraud. Mr Townend, why were they doing that?

Rob Townend: I spoke a bit about it earlier: it is encouraging you to make a claim so they can access the cash. The referral fee ban that was put in LASPO obviously is not working. There are marketing fees available for people to attract you to make a claim. I agree with Mr Dixon and his earlier comment about regulation of claims management companies. Insurers and lawyers are heavily regulated; I would still like to see more regulation of the legal fraternity by the Solicitors Regulation Authority. The regulation around CMCs has been pushed back, I understand, to 2019. The referral fee ban has not worked. There is too much money still in the system and they will keep pestering. We know that. We have got a lot of examples where vulnerable customers are being contacted repetitively, like you were, until they make a claim.

[Chris Philp]

Q Am I right in saying that panel members are unanimous in their view that cold calls by CMCs should be banned?

Brett Dixon: Yes.

James Dalton: Yes.

Rob Townend: Yes.

[Chris Philp]

Q The panel is unanimous on that point.

You mentioned referral fees, Mr Townend. As you say, they were banned a few years ago. My understanding is that some organisations, including insurance companies, seek to circumvent the referral fee ban by entering into what they euphemistically term “alternative business structures”, where they essentially have some kind of equity stake in a claims management company and, effectively, get paid via their equity stake or similar arrangement, rather than an explicit referral fee. Is it the opinion of the panel that this practice, designed to circumvent the will of Parliament, is going on?

James Dalton: The referral fee ban is widely regarded as being relatively ineffective. The mechanism you have articulated is one of the ways people have chosen to get around that ban, including insurance companies and law firms, I would emphasise. That problem is addressed substantially by the reforms in this legislation, because what they do is take that money out of the system and, therefore, take out the incentive to try and circumvent a referral fee ban.

[Chris Philp]

Q Mr Dixon, do you want to add at all to that before I move on?

Brett Dixon: I will with an anecdote, more than anything else. I shared a similar experience to you where I had vehicle damage. I was not in the vehicle. It was in a supermarket car park and an older gentleman was kind enough to leave his details. I was pestered by my insurance company. I was even asked, “Are you sure you weren’t in the vehicle?” Take that on board.

If you have damage to your vehicle—your car that is insured—the first organisation that has access to knowledge that you have had an accident is the insurance company. They take referral fees for work—I am aware of that practice—and they also make a profit from referring such cases on. You only need to look at some of the reports that they make as part of the stock market requirements in relation to that.

Generally, if you take claims management companies out of the equation, you will remove one of the drivers. If you look at banning the practice of insurance companies and claims management companies referring work on, you go some way towards doing that as well. If you ban cold calls, for which the Association of Personal Injury Lawyers has been campaigning for some time, you remove the possibility of what I call the one-way bet and you are focusing then on the real problem, rather than on the genuinely injured person.

[Chris Philp]

Q Your mention of the one-way bet brings me to my next area of questioning. Take the example I experienced: had the recipient of that cold call been someone who was more open to temptation than I am and gone along with what the claims management company was suggesting, how would the claims management company have ended up making money out of an essentially bogus claim? They must be able to make money out of it, otherwise it would not be worth them soliciting the public.

Brett Dixon: It is the one-way bet analogy. If you then compound the problem by allowing an insured defendant to make an offer to somebody without seeing medical evidence, where are the checks and balances in the system? Bear in mind that a claims management company may be dealing with that, rather than a lawyer or a solicitor at that point. If you remove those two levers, those two drivers—the cold calling and the effect of a claims management company encouraging somebody to make it, and an insurance company then making pre-med offers without evidence of the actual injury—then you can deal with a lot of the problems that are inherent in the sector.

[Chris Philp]

Q Am I right in saying that under qualified one-way costs shifting, were an insurance company to take the choice to defend a claim, even if it were successful in defending that claim—if the claim was found to be without foundation—the insurance company would none the less bear both sides’ costs? Would it not further be the case that those costs would be substantially—probably by a factor of two or three—in excess of the value of the claim, and that is why for the past five, 10 or 15 years, insurance companies have simply coughed up without challenging the case? Perhaps Mr Townend might comment on that.

Rob Townend: Yes; I am one of the insurers who has been defending despite the costs.

[Chris Philp]

Q When you defend a claim and win, do you lose money?

Rob Townend: It depends on whether we then go for a costs order. We will try to if we think we will be successful in that. What is really interesting is that, in the model I operate, the only person I am paying as a result of an injury claim is the party who has been injured and their lawyer. How the CMC gets remunerated for that introduction, I do not really know. The only person I am paying cash to is the plaintiff and their lawyer.

[Chris Philp]

Q Presumably one of those two makes an onward payment to the claims management company?

Rob Townend: I do not know how it works.

[Chris Philp]

Q Mr Dixon, you practise in the area. How does the money get to the CMC—by magic?

Brett Dixon: I do not take any work from CMCs; I take the work from personal referrals. What I would like to do is to pick up on some of your questions.

[Chris Philp]

Q Before you do, you also represent the trade body representing personal injury lawyers, so you can answer in general terms. How does the money get from the claimant’s lawyers or the claimant to the CMC?

Brett Dixon: We do not recommend that any of our members interact with CMCs.

[Chris Philp]

Q I did not ask what you recommend, which I am sure is very virtuous; I asked what actually happens in practice.

Brett Dixon: I would not know what happens in practice because I don’t do it and our members are told not to do it either.

[Chris Philp]

Q They clearly do, otherwise CMCs would not exist.

Brett Dixon: We have a large membership but it is not all people who practise in the area. There may be areas where they are not APIL members where that practice goes on. To go back to your earlier point about the qualified one-way cost shifting and the effect of it, qualified one-way cost shifting was brought in to replace the after-the-event insurance policy, which was something insurance companies were making money out of.

Now, if a claim is not successful, then there are exceptions to the qualified one-way cost shifting rule. Take the example of the one-way bet, where someone has not actually had an accident. There would be two different provisions in the civil procedure rules whereby a defendant could get their costs paid. There would be fundamental dishonesty, and there would also be the fact that the claim would be struck out for being no cause of action, or an abuse of process. If there was no actual accident, then it is not a viable claim. It would be an abuse of process.

If the claim was successful, there is a provision in section 57 of the Act for them to recover in circumstances where there is a taint of fraud in relation to a fundamental, or large, part of the claim. If a defendant challenges a claim where there is evidence of fundamental dishonesty, or it is based on a one-way bet, there is a mechanism for them to be paid. It is a mechanism that is being used and, like any provision that you introduce into the civil procedure rules, the mechanism takes time for the courts to interpret and to bed in. However, there have been quite a lot of cases—at county court level, High Court level and some in the Court of Appeal—that are starting to shape how that works. The fundamental point is that, in those circumstances, there is a mechanism for a defendant to be paid for the costs they have incurred.

The final point you made was about the cost being two or three times the likely damages. If it is for a whiplash claim that is in the fast track, then that is fixed cost, so you will not get two or three times the damages. The only circumstances in which you would are if you have made a part 36 offer to the defendant and then gone on to do better than it. In other words, you offered to settle at an early stage and that offer was ignored. That is there to promote settlement between the parties and save court time.

[Chris Philp]

Q The phrase I have heard several of you use is this idea of a one-way bet. Given that it is a one-way bet, it is no surprise that the floodgates have opened in the past few years.

I would like to come on to the pre-med offer point, which is important. In clauses 64 and 65, legislation contemplates essentially banning pre-med offers where there has been a whiplash claim—a whiplash claim is defined as in clause 61. Would it not make sense, in relation to the banning of pre-med offers, to suggest that any personal injury claim in relation to a road traffic accident should involve a face-to-face medical examination, rather than just the whiplash claims, as currently drafted? Would that not be a much stronger way of ending the pre-med offer practice?

Rob Townend: From our perspective, absolutely. We would like to see a pre-med offer ban. In Aviva, we do not make any offers without a medical—again a decision we made—

[Chris Philp]

Q Are those face-to-face medicals?

Rob Townend: Yes.

[Chris Philp]

Q You are unusual in doing that, are you not?

Rob Townend: Yes, we are pretty unusual doing that. We looked at the overall system and said, “We do not want to feed it”. We wanted to make sure we have medical evidence around the settlements we make, and that we then follow through and defend those if we think the injury is not in line with either the accident—

[Chris Philp]

Q So the suggestion I just made is in line with your current practice, and it would effectively force the rest of the insurance industry to adopt the very commendable practice you are already adopting voluntarily?

Rob Townend: Yes, I think: do not pay a claim without medical evidence, whether that is a motor accident or a liability claim in the commercial courts.

[Chris Philp]

Q Mr Dixon, are you happy with that?

Brett Dixon: Very short and very simple: yes, ban it in all personal injury claims. Pre-med offers should not happen.

[Chris Philp]

Goodness me, there we are! A further usual outbreak of unanimity.

Rob Townend: There is one point to go back to. Do not end with a system with your current definition of whiplash that excludes back because, unless you do that, you will have no pre-med offers—

[Chris Philp]

Q There are two operative provisions in the Bill. One is in relation to the fixed tariff, and one is in relation to pre-med offers, and one might treat them slightly differently.

In relation to the definition of whiplash in clause 61, my colleagues have asked about this already but, having read your submission to the Committee, Mr Dalton, I think I am right in saying that you are concerned that the definition in clause 61(1) is too narrowly drawn. In particular, it excludes the back, and you are worried that there will be a sudden miraculous upsurge in people with bad lower backs.

James Dalton: Absolutely correct. I repeat the point I made earlier: getting the definition right is absolutely critical to ensuring the success of this legislation, in terms of delivering the outcome that the Government have articulated that they want to achieve. At the moment, I am concerned that by excluding back you will see a surge in back claims that are not covered by this legislation.

[Chris Philp]

Q To be clear, we have heard a figure of £1 billion a year of savings mooted in the past. If we adopt the definition as drafted, in your opinion what proportion of those estimated savings will in fact be realised?

James Dalton: I think you said earlier that Aviva’s figures suggest that 60% of the claims are probably going to be excluded, so take away 60% of £1 billion.

[Chris Philp]

Q The final question I would like to ask is about a matter I understand might be introduced into the Bill at a later date, which is to do with the discount rate used when paying claims for long-term injuries. It has recently been amended by the Lord Chancellor from, I think, 2.5% down to minus 0.75%. I would like to close by giving each of the panellists an opportunity to comment on that move and the impact it may have on the wider public.

James Dalton: The decision to reduce the discount rate by 325 basis points has imposed substantial costs on the insurance industry. By “substantial”, I mean to the tune of about £6 billion. That is about 60% of the annual claims cost of motor claims. That cost simply cannot be absorbed; it must be passed on to consumers. Premiums will inevitably rise as a result.

A number of firms have indicated in the public domain that that is the case. The Government need to put out the consultation they said they would produce so people can address the principles underpinning how a rate is set. At the moment, it is linked to Government bonds. No one goes and buys Government bonds. It makes assumptions that 100% of a claimant’s damages are invested in one asset class. No rational investor would do that. So the fundamental underpinnings of how the discount rate are set are fundamentally wrong, and we need to address that.

[Chris Philp]

Q In the absence of any change, what is your assessment of the percentage impact on the average car insurance premium in this country?

James Dalton: It will go up significantly. I think the impact on young drivers is going to be particularly bad, because those are the customers who are most likely to have catastrophic injuries. It is estimated that their premiums could increase by £1,000.

Rob Townend: I will not say a lot that differs from what Mr Dalton has said. We have got to sort out the methodology for setting out the discount rate, because I think nobody would say that it fits the current world, either from an investment return point of view or from the point of view of looking after those who are seriously injured.

The fact that there are so many variations of the potential solution that the Lord Chancellor could have chosen tells you that the mechanism does not work. At the moment, while the consultation is happening, there is a world of uncertainty around what will happen in the future. I think it is in everybody’s interest to get clarity around a longer-term rate that can be as formulaic as possible and looks after the long-term interests of those who are seriously injured while looking at the longer-term investment returns that lump-sum payments can achieve. We just plead that the consultation is got on with quickly. We would love to see the piece of legislation that it could be put into.

Brett Dixon: It is important to understand that you are dealing with issues at two ends of a different spectrum. You are talking about a whiplash claim, and in the same breath, in terms of the discount rate, you are talking about the catastrophically injured person. The important point in relation to that is that, first, the insurers have known for some time that this change was coming. It was long overdue. For a number of years they have made provisions in their own accounts for this, so to suggest that this has come like a bolt out of the blue is disingenuous.

Secondly, the changes are to ensure that a seriously injured person has sufficient moneys available to make provision for their future needs because of somebody’s negligent act. A lot of it is about care. If you are not making sure the person who did the damage is paying via their insurance policy, it will be the NHS and the taxpayer who ultimately have to foot the bill to look after that seriously injured person. What you will not change by changing the mechanism for the discount rate is the fact that that person is seriously injured and needs that care. It is right for society that the person who did the damage should foot the bill, not the taxpayer.

Insurers knew this was coming. I hear a lot of talk about how you cannot buy Government gilts. Because of the mechanism chosen in the Damages Act 1996, the person who is investing their money does so on the basis that they are taking a no-risk investment. That is why that is there. There are no other no-risk investments available. If you want a judge to calculate damages, he has to have a methodology and a starting point.

James Dalton: No one is arguing about whether these claimants need the support that an insurance company is going to provide. No one is saying that these people should get less money. What we are saying is that the formula for setting the rate, which is now 20 years old, needs to be updated to take into account the fact that it is linked to Government bonds and assumes 100% compensation. These things do not just happen in practice.

[Sir Oliver Heald]

Q I do not know if Mr Dixon and Mr Dalton would agree that the Lord Chancellor has had to exercise her duty in a quasi-judicial way under the existing mechanism as it stands. It is right for this to be a consultation about the future, but that was the law. Do you agree?

Brett Dixon: I agree entirely. The Lord Chancellor made the decision that she was legally required to make. She was exercising a quasi-judicial function when we made the reforms, introduced the Supreme Court and made other changes. That role was retained by the Lord Chancellor, even though setting damages is properly a judicial function.

James Dalton: I do not agree. The Government undertook consultation exercises in 2012 and 2013 specifically asking questions around whether the regulatory framework for setting the discount rate was right. Indeed, there is going to be a consultation now asking similar questions. To me, that suggests that the Government do not think that the framework is right. In that context, it also suggests that the decision that the Lord Chancellor has decided to take, based on legal advice, is questionable. I do not think that the way that she has taken that decision is right.