Civil Liability Bill [Lords]

Debate between Kwasi Kwarteng and Rory Stewart

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

[Kwasi Kwarteng]

If the hon. Gentleman were an insurer, managing a business on a daily basis, he would have to make a call every single day on which claims to fight and which not to fight. Often, for reasons of cost, the insurer will simply pay the money, without regard to the veracity or otherwise of the claim.

[Rory Stewart]

Does my hon. Friend accept that there is also the serious issue of asymmetry of information? In the case of injuries lasting less than six months, it is very difficult to prove through any medical means whether or not the injuries occurred, and therefore very difficult to defend against the claim.

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[Rory Stewart]

This is a very interesting point, and I am very happy to follow up on it in more detail. The nature of the regulation in each case is quite distinct. In relation to the insurance industry, the regulation proposed is to ensure that we have the financial information to prove that the savings the insurance industry has derived from these reforms are passed on to customers. In the case of the claims management companies, the regulation is to ensure that they comply with the law, particularly the legal changes introduced by previous legislation. In accordance with the suggestions from the Justice Committee, we are also looking at the advice forthcoming from the judiciary to ensure that we can deal with other issues involving claims management companies.

If I may, I will come back to the core of the Bill. We are dealing with a perfect storm of three things. First, at the minor end of whiplash injuries—the three-to-six-month end—this is a condition that, in effect, is unverifiable and difficult to disprove. The polite way of expressing this is to say that there is an asymmetry of information. Somebody suffering a whiplash injury will experience genuine and sincere pain, but that pain cannot be detected at the minor end through any medical instruments. That is the first challenge involved in this type of injury.

The second challenge is of course the level of payments offered to individuals suffering these injuries. The third is the level of recoverable costs which meant, in effect, that a no win, no fee process was operating in which people could apply to a lawyer to represent them and be confident that the legal costs would be recoverable from the defendant. When that is connected to the fact that for all the reasons I have given—particularly the first, asymmetry of information—the insurance companies are not contesting claims, we end up with a discrepancy rapidly emerging between the number of motor vehicle accidents and the number of claims, and between the number of claims made in the United Kingdom and the number made in other jurisdictions.

Lord Brown of Eaton-under-Heywood, a former justice of the Supreme Court, stated that he was

“reluctantly persuaded that this provision is justified: it is surely intolerable that we are known as the whiplash capital of the world, so I have concluded that it is open to government, as a matter of policy, to seek to deter dishonest claims in this way.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1603.]

[Kwasi Kwarteng]

Does my hon. Friend have any idea why the situation has developed in which we are the whiplash capital of the world, as the noble Lord put it?

[Rory Stewart]

It is a sensitive issue, because of course many individuals who have even quite a minor road accident experience a whiplash injury and have significant pain, particularly in the soft tissue of the neck and shoulders, which can last three to six months in the majority of cases or longer in a minority of cases. However, the New England Journal of Medicine, which conducted a significant study across various countries, concluded that the prognosis for a whiplash injury was significantly worse in countries in which compensation existed. In other words, there appears to be some form of medical relationship between the compensation offered and the prognosis for the whiplash injury.

How that relationship operates is a matter of speculation, but the following things may explain it. First, compensation payments and the encouragement provided by claims management companies, particularly on the telephone—we have heard a great deal of anecdotal evidence about that today—could encourage individuals to make claims that they may not themselves feel are as justified as the claims management companies imply. That leads to serious problems, the first of which is moral. It is a problem of dishonesty. In effect, it appears that some people—we do not know how many, but certainly a significant minority—are being encouraged to make dishonest insurance claims. As hon. Members have pointed out, that is potentially morally corrosive to our society. We do not want to encourage a system in which people feel that they can make such claims.

The second problem is that the situation has had a disproportionate impact on court time. Lord Faulks has said:

“If there was to be a reduction for really serious injuries, I can imagine why noble Lords would baulk at the imposition of a tariff. However, we are for the most part talking about pain and discomfort of a relatively transient nature…So these reforms—quite modest though they are—are a proper response to what I would describe as a racket.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1607.]

The cost to society imposed by this compensation is disproportionate to the severity of injury.

Local Flooding

Debate between Kwasi Kwarteng and Rory Stewart

Friday 23rd October 2015 Commons Chamber

[Kwasi Kwarteng]

I am grateful to my hon. Friend, representing Twickenham, for articulating the point so well. This is something that cannot be stressed enough: ordinary people going about their business should not be subjected to these extreme circumstances. I fully understand that they could be described as natural events—they are acts of God—but when it comes to responsibility, if there are aqueducts involved, or if there are floodgates or sluice gates that need to open or shut, or if there are drainage systems that are not working, that is something manmade, for which there should be some accountability or responsibility. That is what this debate is all about.

More specifically, I want to talk about what happened with the flooding of the River Ash, which is one of the main reasons for calling this debate. It would appear that the flooding of the River Ash was aggravated as a consequence of a sluice gate not being shut, and not doing its job of shutting out water after an initial warning was given. The basic contention among residents who were flooded is that, between Saturday 8 February 2014 and Wednesday 12 February, this half-open sluice gate significantly aggravated the flooding. The protocols established after the severe flooding in 2003 firmly stated that the Environment Agency should give authority for Thames Water to shut the sluice gate in such an extreme situation. That should have happened on 8 February, when I believe the warning was given, or at the very latest on the morning of Sunday 9 February.

However, as I said in an Adjournment debate that I secured in May 2014, on the Monday morning the Environment Agency learnt that the gate—sluice gate No. 8—was still not operating. We are led to believe that later that morning, at around 7.35 am, the Environment Agency raised the prospect of calling in the Army to shut the gate. At 10 in the evening, Surrey police informed residents in Greenlands Road and Leacroft, which are residential areas in Staines, to evacuate their homes. That was an extreme outcome. In this day and age, having police telling those living in a highly residential area to evacuate is an extreme occurrence. People should not have to experience that in our country.

I will carry on explaining what happened, but I want to stress that, in many ways, the details are not relevant; or rather, they are relevant, but they raise wider questions—even, one might contend, philosophical questions—about the nature of the responsibility involved.

To resume my story, by 10 pm on Monday 10 February, the situation was serious. The next day, Thames Water, the water company which owned the aqueduct and whose mission it was to keep the infrastructure in good maintenance, sent in contractors with heavy equipment to the sluice gates, which I understand were not working. Only in the early hours of Wednesday 12 February did Thames Water finally close the gate by 1 metre. Once it was closed, the water levels began to recede quickly and on the morning of Thursday 13 February the floodwater had significantly gone.

The facts I have outlined, as I have on previous occasions in the House, are not really what the debate is about. This debate is about a broader question.

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rory Stewart)]

To clarify, I think there is a question of correlation and causation in relation to the statement that my hon. Friend has made. This is a very serious issue, and it is of course true that the floodgate was closed just after midnight on 12 February and that the waters then receded, but I am afraid that we do not have evidence that there is a direct causative relationship between those two things.

[Kwasi Kwarteng]

I am happy for the Minister, with his usual acuity, to point that out. In many ways, the actual details are neither here nor there. Let me put it in the conditional mood, because the Minister might then be able to understand what I am driving at. If it were the case that that was the cause, who would ultimately bear the responsibility? That is the broader question. We can have debates about causation until we are blue in the face. If we want to be philosophical about it, it is difficult to prove any form of causation, but that is not the question here. The point is that people’s homes were affected by an accident that they believe, rightly or wrongly, had something material to do with the maintenance of a key piece of infrastructure.

If it were the case that the sluice gate had not been maintained properly, whose job was it to tell the water company or to enforce a decent degree of maintenance by it? I fully understand that the water company, being a private company, will not put up its hand and say that it was responsible, to the tune of millions of pounds, for all the damage. I understand how corporate life works. What I am interested in finding out—and I still have not had an answer—is who was ultimately responsible for ensuring that that piece of infrastructure was properly maintained. As I have said many times to my constituents, it is not my job as an MP to ascertain the facts: we have other processes for doing that. What I am interested in is the issue of responsibility and accountability that such circumstances raise.

In summary, facts can be disputed. As we have seen in this brief debate, causation can be disputed. But what my constituents and I want to know is that if people have not done their job, in terms of maintaining crucial infrastructure, who takes responsibility? Is it the county council? Does it have ultimate responsibility for ensuring that a sluice gate or any such infrastructure is maintained properly? Is it the water company on whose shoulders responsibility should rest? Is it the Environment Agency? We have seen occasions on which the agency has taken relevant bodies to court. Who should ultimately bear the responsibility? That is my question, and it is important. To my constituents, other hon. Members and me, the question of responsibility remains murky and obscure. We simply do not know who to turn to or where the buck stops. We do not know who is responsible, in the last instance, for ensuring that key bits of infrastructure or equipment are maintained. That is a legitimate question to ask.

It was in that spirit of inquiry that I applied for this debate. The issue is a simple one and we must remember one basic fact: the aqueduct was on private property. The contention is that a piece of infrastructure on that private property was not adequately maintained to do its job. The simple question that follows on from that fact is who is ultimately responsible for that maintenance.

I am happy to have expressed my views and those of my constituents in this debate. I thank the Minister for his forbearance and I look forward to his response.

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[Rory Stewart]

I had the privilege of visiting the area around Teddington with the Environment Agency two weeks ago. The agency has extremely complex and serious models—geomorphological models—on water movement. We believe that we have one of the best understandings of flood movement and flood forecasting of any country in the world. The River Thames scheme is a £300 million scheme—a staggering sum of money. The Government are contributing £220 million directly to the area stretching down the Thames to Teddington. If my hon. Friend wishes to raise scientific or engineering issues, I am happy for her to do so offline—I am not sure that this is the appropriate debate—but we will provide better flood protection to approximately 15,000 homes and businesses in that area.

[Kwasi Kwarteng]

My hon. Friend the Member for Twickenham (Dr Mathias) raises interesting issues but, in this debate, I want to stay closely to the issues I have raised. I suspect we may have to have another debate to discuss Department for Environment, Food and Rural Affairs geomorphological studies.

[Rory Stewart]

I will take my hon. Friend’s invitation and put aside the additional measures that have been put in place. We will have other opportunities to talk about the Flood Re insurance scheme, of which we should be very proud, as he knows. We will have other opportunities to talk about sustainable urban drainage systems—SUDS—which will make a huge difference, and other opportunities to talk about local flood risk management.

Surrey County Council has a good flood risk management strategy. It has published a new draft strategy, which my hon. Friend will have read, as I have, clarifying exactly the issues that interest him, which is the question of who is responsible for managing the risk. We have community flood plans within Spelthorne. Three are in place—Fordbridge Park, Wheatsheaf Lane and Sunbury Court Island—two are in progress and three more are coming. There will be a severe weather forum on 5 November, which he can attend. It is intended that communities will come forward with their plans and preparations.

My hon. Friend has an important point: it is the case that, in that flood, it does not seem that we can assign total responsibility to that sluice gate. It is not a main river section. Our modelling suggests that the sluice gate is not what led to the flooding in those houses. However, as he has pointed out, regardless of that case, there is an important hypothetical case. What happens if, in future, that sluice gate is genuinely essential to prevent flooding? I absolutely agree that we need to be much better at assigning responsibilities, as the Pitt review pointed out. That is particularly true because the causes of flooding are always complex and interdependent, and there is an enormous number of different people involved. Almost inevitably, we must have a system in which the county council, the district council, highways agencies and the Environment Agency have roles. Thames Water deals with sewerage. In that case, the asset was not primarily a flood asset but an aqueduct and drinking water asset.

As the flooding Minister, I am very aware that ultimately I have the responsibility for this and it is not enough simply to talk about a lot of agencies. We have to be clear about who does what when. My hon. Friend is right that that is particularly the case with what we call third-party assets such as sluices and aqueducts, which are owned and managed by others.

The Flood and Water Management Act 2010 has been a very important step forward in ensuring that we have a clear assignation of responsibilities, but I believe that such events illustrate that we still have more to do, and this is where I concede that my hon. Friend has raised an important point. We still have more to do as we must make it absolutely clear what will happen in such cases not just in Spelthorne but up and down the country. In this case, the Environment Agency is with us at the moment and I have had detailed discussions about Spelthorne with the agency partly as a result of the debate secured by my hon. Friend, so his constituents have reason to be grateful for his work on this.

It appears that we now have a clear protocol in place that sets a defined water level at which the sluice will be brought into operation. That has now been agreed with Thames Water. However, we will look very closely again at that protocol and will take this example as we go up and down the country to ensure that we are not stuck falling between two stools, which is a situation that we are often too close to.

In conclusion, let me express deep sympathy for those affected by flooding and recognise that recovery is a very long process for the people who were evacuated from their homes, who saw prized possessions destroyed and who went through fear and perturbation. In many cases, I have seen houses in Surrey to which people did not return for almost two years after the flooding occurred. They have lived elsewhere and have been through a truly terrible time.

With climate change, it is unfortunately very likely that we will see more of this in the future. The Government are investing unprecedented sums of money and we are putting £2.3 billion in capital investment into flood defences over the next six years. We will improve flood protection by 5% and 1,500 homes and businesses in the Thames area will be protected. I must thank the Environment Agency, Surrey County Council, the district council, our professional partners and Thames Water, which has looked closely at the subject.

We should not hide behind legal definitions. The challenge of accountability is absolutely central and we do not want to get into a world in which I perpetually appear here in Parliament saying that causes are very difficult and geomorphology is very difficult. It is easy for us to say, in some peculiar fashion, that these things are not really our responsibility and that even if they are, closing the sluice gate would not have made a difference, and even if we had wanted to close it perhaps we might not have been able to anyway. Generally, excuse is piled on excuse and we have to get much better at saying, “This is the person who is responsible,” and holding them accountable. I pay tribute to my hon. Friend the Member for Spelthorne for raising an issue that will, I hope, benefit not only his constituents but millions of people in the United Kingdom at a time of climate change.

Question put and agreed to.

North Africa and the Near and Middle East

Debate between Kwasi Kwarteng and Rory Stewart

Monday 28th November 2011 Commons Chamber

[Rory Stewart (Penrith and The Border) (Con)]

How very jealous George Canning would have been in 1823 to see the scope and ambition of this debate. Triumphant from Waterloo and Trafalgar, with the greatest economy and Navy in the world, he hesitated to get involved in affairs in France and Spain, whereas we have skipped in this debate from toxic waste in Somalia to minorities in Sudan, the situation in Yemen and the Baha’is in Iran. We have touched elegantly on the military in Syria and in Egypt, on elections in Morocco, on Islamists in Libya and in Tunisia, on refugees in Niger and on the fishermen of Mauritania. How jealous he would have been.

Given that we can pack the House for a debate on the fair fuel tariff, one would imagine that we would now find the journalists leaning over the railings, the Gallery packed and the House stuffed, with everyone desperate to get involved at this moment of deep crisis when the middle east and north Africa are teetering on the edge, and Europe is in trouble—but no. Why not? It is because at the heart of our problems in the middle east and north Africa is the situation of Britain for the past few decades. As our relative economic power declines, our ambitions become ever greater and our rhetoric becomes ever more inflated. We wish to get involved in countries that would have been obscure to us at the time of our greatest power, yet at the same time we hollow out the institutions on which we depend to deliver our policy.

Let us consider the middle east and north Africa and what we have done in this Arab spring. On Tunisia, the reality is that we had abandoned not just Mauritania but Tunisia itself to French diplomacy and French policy. In Libya, we contented ourselves with kissing Gaddafi on the cheeks and handing out a doctorate to his son at the London School of Economics and our connection with Egypt was contained to snorkelling as guests of Mubarak in Sharm el Sheikh.

[Kwasi Kwarteng]

I am particularly grateful to my hon. Friend for giving way—

[Kwasi Kwarteng]

This is not a point about snorkelling. My hon. Friend the Member for Penrith and The Border (Rory Stewart) is making an impassioned and eloquent speech, but surely he must recognise that the reason why we are more committed to intervention in such areas—more so than in imperial times—is that we are part of a wider comity of nations. We are part of the UN and of NATO and as part of that joint venture we are committing and projecting ourselves in the region. In imperial times, such circumstances did not prevail. We acted unilaterally and, as he is right to say, in many instances we chose not to intervene and interfere in the internal politics of other countries.

[Rory Stewart]

My hon. Friend makes a very good point, but the problem is not our desire or our commitment to the multilateral system but our capacity and what we can actually do. Our engagement with the United Nations and NATO and our various grand views about globalisation and economics lead us to believe that we should be involved in all those areas, but what capacity do we have to deliver, what understanding do we have of those specific countries and what power do we have in our hands to do one half of the things that have been discussed in the Chamber today?

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[Kwasi Kwarteng]

My hon. Friend knows, probably better than anyone in this House, the extent to which modern media and modern technology have completely revolutionised the way in which we gather information and deploy our authority. I have listened to the debate for a number of hours now and I was intrigued to discover that people were harking back to colonial times, the empire and that sort of thing. They had nothing like the technology we have today and although I completely agree with my hon. Friend about the need for languages and cultural expertise in the Foreign Office, it is not remotely apparent to me that we should have exactly the same infrastructure today as we had in 1930 or 1880. That model is completely false in today’s environment.

[Rory Stewart]

This is a very tantalising and attractive argument and I can see exactly why it is made. Of course, we should not have the same structure as we had in 1880 or 1930—and nor do we—but the notion that technology and the related aspects of the 21st century have somehow transformed our relationship with a country such as Afghanistan is fundamentally misguided. In the recent Helmand police intake, eight out of 100 people could write their name or recognise numbers up to 10. There is no electricity between Herat and Kandahar. The notion of a Facebook revolution in Afghanistan, Somalia or South Sudan is a distant fantasy. The fact that in the British embassy in Kabul two years ago, there were exactly two people who had passed a Dari exam at an operational level and that there was not a single Pashto speaker is testimony to the fact that we believe we live in a globalised world in which it is unnecessary for us to study other people’s languages or understand their culture.

[Kwasi Kwarteng]

With respect to my hon. Friend and the House, I have always said in relation to these issues that linguistic competence is absolutely vital, and it is a scandal that the Foreign Office should have turned its back on that. He must acknowledge, as I think he is doing, that the technological environment in which we operate allows us to have certain levers and information that we did not have 15 or 20 years ago.

[Rory Stewart]

I could not agree more—it certainly allows us to have a great deal of information. However, at the fundamental core of the Foreign Office’s work, which concerns politics and power, there appears to be a problem. The same problem was apparent when nobody challenged the Government’s policy on Iraq, which is the single most humiliating mess into which the British Government have got themselves since Suez. Not a single senior British diplomat publicly or even privately challenged the Prime Minister on that issue. Why? Because at the same time as we imagine that everything is manipulable through technocratic processes and technology, the knowledge and the confidence that came from country immersion and language is lacking, as is the confidence that would allow one to challenge power.

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[Rory Stewart]

This is fundamental because we live in a world in which there is not enough challenge in the system. There are not enough checks or balances. I have mentioned that our newspapers have fewer and fewer foreign correspondents. The quality of foreign reporting in Britain is not as good today as it was 20 years ago because we simply are not investing as much in foreign reporting. At the same time, the military is increasingly preponderant in the United States, and brings with it the inherent optimism and determination to say, “We’ve inherited a dismal situation but we have the resources and the mission to deliver a decisive year,” pushing aside the civilian advice. We are flattered by English-speaking, upper-class Afghans, Iraqis and Libyans who feed our fantasies and tell us what we want to hear.

In that context, and in the context of the temptation across Europe and the United States to have more and more centralised power, we need our Foreign Office to act as a check and balance. We need it to challenge policy and to speak truth to power. Above all, we need it to say not just what the UK interest is, what our ethical limits are or what we are not prepared to do morally, but, most fundamentally of all, what we cannot do. When somebody comes forward and says, in country X, “In this failed state, we will create governance, the rule of law and civil society,” it should be the job of our Foreign Office to ask “How?”, “With whom?” and “With what money?” It should ask, “What possible reason have you to believe that you can achieve this grandiloquent objective you have established?”

We also need to explain matters to the public, because this entire rhetoric is the rhetoric of a poker game. It is the rhetoric, perpetually, of “raise” or “fold”, and of driving people to ask, “Have you met your $3 billion objective on trade this year?” or “Have you or have you not set up the rule of law and civil society?” and if not, “Why have we got an embassy in Mongolia? Why have we got to bother having any representation in Peru? Why don’t we drag it all back to London and do it down the internet?” The way to cease that is to be honest—not just internally but with the British public as well.

[Kwasi Kwarteng]

My hon. Friend raises a particularly pertinent point about the operations of the Foreign Office. He will remember that in times gone by, that was the Foreign Office’s job and it consistently said no. If we are to believe the memoirs of politicians, it consistently set itself as a roadblock to ministerial action and said, “No you can’t do that,” to Ministers who wanted to intervene or act purposively. He will also remember that a former Conservative Prime Minister once commented that she understood that the Agriculture Department looked after farmers, that the Labour Department looked after workers and that the Foreign Office looked after foreigners. It is well known that the Foreign Office has been the check that my hon. Friend describes.

[Rory Stewart]

The Foreign Office has a very distinguished tradition of doing that. With many of the things it challenged, it did so correctly. It challenged Lord Salisbury’s insane idea of launching an invasion into Afghanistan in 1879, it challenged Lord Grey’s absurd ideas about secret treaties with France in 1912 and 1913, and it challenged the absurdity of Suez. In all those ways it acted responsibly, but increasingly it is no longer performing that role.

Of course the politicians can, when they want, overwhelm the Foreign Office, push it aside and push ahead, and that is fine, but—on this, I think, we should conclude—we are now in a very strange position in this country. We are hollowed out. We are facing an enormous crisis. Europe is teetering on the edge. The German Chancellor is invoking ghosts of European destruction. The middle east and north Africa have seen more tottering regimes and dynasties than in any period since the end of the first world war. At this time we need to remember that that very modest investment in the Foreign Office—only £1 billion a year on its core costs, if we exclude the British Council and the World Service—is an extremely wise insurance and investment.

We need to remember at times like this how vital is the ability to set out our limits, to set out a strategy and vision, to explain exactly, as this Government are doing, and to continue to explain more clearly to the public, exactly what Britain believes and what our strategy is—that peculiar mixture of pragmatism and belief in rights, a belief not just in ideals but in common sense, expressed in a world that understands that today of all times a residence can be much more powerful than a regiment, a Tuareg specialist than a Tornado, an Arabist than an aircraft carrier, and that the Foreign Office is our strength, our nation, and our defence.