Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Woolf

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

[Lord Keen of Elie]

There are circumstances in which the Minister may give directions to the committee—I accept that—and that reflects the current position with regard to the other rule committees already in existence, including the tribunal rules, the civil rules and the criminal rules. It exists by way of an executive direction and is there for good reason as a fallback. I understand that the power has been used only once with regard to the existing committees, to address a potential anomaly in the existing rules. It is an exceptional power but it is there because it reflects the existing power in the provisions for the other rule committees.

[Lord Woolf (CB)]

I apologise for not being at Second Reading but perhaps the Minister will indulge me by helping me with the purpose of Clause 1(1)(a), which states:

“For proceedings of a specified kind, there are to be procedural rules which … must require that kind of proceedings, or one or more aspects of that kind of proceedings, to be initiated by electronic means”.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Woolf

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

[Lord Woolf]

There is an answer to the problem that the noble and learned Lord raises. It might have implications for the workload of the judiciary but I think that could be handled. We should get away from the idea that a judge should assess damages in appropriate cases only at one stage. There is no reason why you cannot have a system where the matter can be restored to a judge in a case of differences of opinion to take into account succeeding circumstances. If the power existed, the courts would find that in the majority of cases, litigants—properly advised, as they are in these big cases—would come back only when there was a real difficulty between the insurer in practice and the claimant. In that way, matters could be reviewed to reflect any differing circumstances. It was not a one-off assessment that I was advocating but the ability to change the assessment. That would apply to PPOs as it would to any other laws.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Worboys Case and the Parole Board

Debate between Lord Keen of Elie and Lord Woolf

Wednesday 28th March 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, I shall take up the last point that the noble and learned Lord made in answering the questions raised a few moments ago. Nick Hardwick has been an outstanding contributor to criminal justice in this country. I say that knowing that other Members of this House who have occupied the highest judicial posts in this country share that view, even though they have been closely involved in criminal justice as Lord Chief Justice. I have not spoken to the noble and learned Lord, Lord Phillips, but I have spoken to the others and they confirm that that is the case. It was not mentioned in the Statement that has just been read out that Nick Hardwick indicated that his role in this matter was extraordinarily limited. Although the Parole Board may have been at fault, as indicated in the judgment, it is right to say there was no personal criticism of its chairman. I am sure the House accepts that being a member of a parole board is an extraordinarily difficult task. A parole board can act only on the information given to it. In those circumstances, I ask the Minister to make clear that the view I have just indicated about Nick Hardwick is accepted by the Lord Chancellor and Minister of Justice. It is right that it was made clear to him that he should resign, albeit that he thought he would have been able to carry on perfectly well in the role. Bearing in mind the importance of the Parole Board, this is a most important matter.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Woolf, for his observations and readily concur with his comments on the contribution that Professor Nick Hardwick has made to criminal justice in this country. I say that without qualification. Clearly a situation had arisen in which there had to be consideration, both by the Secretary of State and by Professor Nick Hardwick, of whether it would be tenable for him to continue in the present circumstances. In light of that, he tendered his resignation. Again, I repeat, I accept without qualification the comments made about his considerable contribution to criminal justice in this country.

Prisons: Women

Debate between Lord Keen of Elie and Lord Woolf

Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we are seeking to invest in what is termed the whole system approach in respect of female offenders who are released from custody in order that we can develop a female offender strategy. By 2020 we will have invested £1 million in seed funding investment for community provision.

[Lord Woolf (CB)]

Does the noble and learned Lord agree that in dealing with female prisoners it is most important that great attention is paid to the need for offenders to have regular contact with their children? Otherwise there is a danger of repetition by succeeding generations of what happened in the case of the offender.

[Lord Keen of Elie]

I entirely agree with the observations of the noble and learned Lord. We are concerned to ensure that such contact can be maintained. At another level, of the 12 prisons currently located throughout the country for female offenders, six have mother and baby units.

Prisons

Debate between Lord Keen of Elie and Lord Woolf

Thursday 8th February 2018 Lords Chamber

[Lord Keen of Elie]

No, it is not possible for me to give that figure. However, it is an indication of the pressures that have developed on the prison population.

[Lord Woolf (CB)]

My Lords, the Minister accepts that there are great problems within the Prison Service. They seem to correlate with the result we now have of constant changes in the Lord Chancellor or Minister of Justice—I say that seeing the noble and learned Lord, Lord Irvine, in his place—and the fact that Ministers have to learn about prisons, which is not an easy task. So we get a situation where good reforms are overlooked and mistaken reforms are implemented. Does he think that there is a solution to this?

[Lord Keen of Elie]

Speaking from a personal perspective, I hope that there is a solution in the form of some consistency and constancy of ministerial appointments in particular departments—but I quite understand the noble and learned Lord’s concern. Within the Ministry of Justice we are pursuing a consistent policy with regard to prison improvement.