Civil Liability Bill [Lords]

John Bercow Excerpts

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

[Gloria De Piero (Ashfield) (Lab)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss new clause 2—Small Claims Track: Children and Protected Parties—

‘(1) The Small Claims Track Limit in relation to claims made by children and protected parties for whiplash injuries may not be increased unless the increase is to an amount which is not more than the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to the consumer prices index.

(2) In subsection (1),

“children” means any person or persons under 18;

“protected parties” means any person who lacks capacity to conduct the proceedings;

“lacks capacity” means lacks capacity within the meaning of the Mental Capacity Act 2005’.

This new clause would limit increases in the small claims track limit for those suffering whiplash injuries to inflationary rises only, for people who are either children or people lacking capacity to make decisions for themselves (as defined in the Mental Capacity Act 2005).

[Gloria De Piero]

We are again confronted with the reforms in the Bill, which will cost the NHS at least £6 million a year and taxpayers at least £140 million a year, the Government admit. Even they accept that it will result in more than 100,000 injured people not pursuing a legitimate claim that they could pursue now; we say the figure is far higher. Insurers, meanwhile, will get an extra £1.3 billion of profit every year. The Government say that they will hand 80% of that to consumers in the form of reduced premiums, but they have said that before, and insurers have saved over £11 billion since the last Government reforms in this area, in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Despite a brief dip in 2012-13, premiums are now higher than ever.

The Government have moved a little on the Bill, and in Committee the Minister confirmed what he intimated on Second Reading: that vulnerable road users will be exempted from both the Bill and the small claims limit. That is welcome. As Labour has done repeatedly throughout the process, we will attempt today to make the Bill fairer still by setting out some key amendments.

New clause 1 would ensure that the whiplash small claims limit could be increased only in line with inflation based on the consumer prices index, and it follows Lord Justice Jackson’s recommendation that increases should come in £500 increments and only when inflation justifies them.

One of the most disappointing aspects of this package of reforms is the Government’s attempts to sneak through key changes to the small claims track limit through the use of statutory instruments. Today we want to give those changes the scrutiny they sorely deserve and put them in the Bill.

Whereas the threshold for getting legal representation for personal injuries is currently £1,000, the Government are trying to raise it to £2,000 or £5,000, which will make a massive difference to someone injured through no fault of their own. That position is supported by a raft of experts, including some in the Minister’s own ranks—the Tory Chair of the Select Committee on Justice for one. The White Book, which I took the trouble of sharing with the Minister in Committee, shows that there was an effective 20% increase in the small claims limit in 1999 when special damages were removed from the calculation of the limit. I note that the Lord Chancellor conceded in his letter to the Chair of the Justice Committee dated 15 August 2018 that 1999 is the correct date from which to calculate an increase.

It is worth pausing at this point, since the Government now accept that there was a significant change in 1999, to understand what that change meant. An example is given in paragraph 26.6.2 of the White Book:

“a claim for £4,000 for loss of earnings and other losses, plus a claim for £800 for damages for pain and suffering, is a claim which would be allocated to the small claims track”.

In layman’s terms, a claim may be made for under £1,000 for pain and suffering, but when losses and expenses are added in it could be considerably greater. The example in the White Book suggests that, if an £800 pain and suffering award has a losses and expenses claim of £4,000, although the total value of the claim is £4,800, it still falls into the small claims track. We are talking about claims far in excess of the small claims limit.

Lord Justice Jackson, in his review of civil litigation costs, all the recommendations of which the Government accepted and implemented in the 2012 Act, said in paragraph 1.3 of chapter 19 of his 2009 review:

“Personal injuries litigation is the paradigm instance of litigation in which the parties are in an asymmetric relationship.”

In words that we all understand, this is David versus Goliath. Sir Rupert Jackson went on to say that

“the only reason to increase the Personal Injury small claims limit would be to reflect inflation since 1999”

and that

“I propose that the present limit stays at £1,000 until inflation warrants an increase to £1,500”.

He could not have been clearer, yet the Government appear to have plucked the proposed £2,000 limit out of thin air.

The new clause states that the CPI, which is used for the uprating of pensions and benefits paid to injured workers, should be used to calculate the small claims limit. Even the Chief Secretary to the Treasury agrees that CPI is the way to go. She said earlier this year to a House of Lords Committee:

“CPI is a much better measure of inflation…we are seeking to move away from RPI”.

The Governor of the Bank of England agrees, too. He has said:

“We have RPI, which most would acknowledge has known errors. We have CPI, which is what virtually everyone recognises and is in our remit.”

It is perfectly clear what we need to do: enshrine CPI as the key measure in the Bill.

--- Later in debate ---

[Richard Burgon]

There is absolutely no guarantee of that happening as a result of the Bill. That is not its real purpose. It actually undermines access to justice. As I said on Second Reading, this is yet another attack by the Government on our justice system and on the vulnerable. It is an attack that will, in practice, enrich the Conservatives’ friends in the insurance industry—[Interruption.] As we can hear, Conservative Members do not like that allegation, and they did not like it when I made it on Second Reading. Maybe it touches a nerve. The Government had a chance to disprove it by their actions, by backing amendments that would have ensured that the Bill would not simply line the pockets of the insurers, but they did not do that.

In their media briefing, the Government claim that the Bill is about cutting the number of fraudulent whiplash claims. Of course, no one would disagree with doing that, and had the Government taken measures that did that in reality and simply stopped there, they would undoubtedly have built a broad consensus and the Bill would have been uncontentious. They did not do that, however. Instead, they pressed on with measures that will penalise the many. That, alongside their dire record on access to justice, is why we still believe that these reforms are a smokescreen. I know that there are many Conservative Members who pride themselves on defending our justice system, on upholding the rule of law and on promoting access to justice. Today is the day for those Members to show that they put their commitment to those important principles above narrow party interest by rejecting the unjust proposals.

The Bill started in the Lords, where it faced substantial opposition, not only from Labour Members or Members representing other political parties, but pre-eminent legal experts, including former Lord Chief Justices, who expressed their concerns about the Bill’s impact on access to justice and the independence of the judiciary. The Government only narrowly defeated amendments—similar to those we have discussed today—that would have fundamentally altered the Bill for the better. Since then, they have not taken the opportunity to listen, not even to those pre-eminent legal experts. They have not tried to negotiate or to remove the barriers to justice that define the Bill. For those reasons and others that I will set out, Labour Members will vote against it.

Before addressing the Bill’s provisions, I wish to place on record other elements of the package of reforms that are intended to be passed through statutory instruments. Through that route, the Government want 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. That will make it much harder for workers to get compensation for workplace injuries, and for genuinely injured people to get a fair settlement. A significantly greater number of claims will be dealt with through the small claims procedure, whereby no legal costs are usually awarded, even in successful claims.

When legal fees are not covered, tens of thousands of working people will simply be priced out of obtaining legal assistance, resulting in many pulling, dropping or not pursuing their cases. Of course, others, determined to secure justice, will fight on, but by representing themselves, at a massive disadvantage. An insurance company will be served by a legal expert fighting their case. The victim will be left to try to navigate a complicated legal procedure, placing greater pressure on our already overstrained courts. Some will choose to pay their legal fees out of their compensation, but then, in practice, they will be compensated less than a court found appropriate. As always, the wealthy will be able to afford the best legal advice and the rest will have to suffer.

Justice for the many, not the few is mere rhetoric for the Government. In reality, it is justice for the few, not the many. Is that why the Government are trying to sneak measures through the back door rather than putting them in the Bill so that they could be debated and amended? That is a cowardly attack on workers’ rights, pushed through without real debate or scrutiny. That just about sums the Government up.

I want to give some real-life examples of people affected by the reforms because far too often their voices are not heard in this place.

[Mr Speaker]

Order. I gently say to the shadow Secretary of State, who has come on later than he might have expected to speak—the Minister was within his rights to speak for an unusually long time for Third Reading—that the hon. Member for Belfast South (Emma Little Pengelly) indicated to me several hours ago that she wished to contribute on Third Reading. It would be most unfortunate if there were not an opportunity for Back-Bench Members to speak. I am not blaming the hon. Gentleman, but I ask him whether he might take account of the interest on both sides of the House.

[Richard Burgon]

Thank you very much, Mr Speaker.

Those people include a driver, working to take disabled people to and from a day centre, who, because he had not been properly trained, fell off the vehicle while assisting a wheelchair user and suffered a back injury. They include a cleaner in a hospital who, while mopping the floor, went to pick up some papers and pricked her finger on an unsafely discarded needle. She suffered a psychological and physical injury. Just imagine the fear she must have felt as she waited for the test results. Those are examples of cases that have been sent to my office, and of real people who would be penalised by the new system. Those are the people whose voices the Government are content to drown out with their rhetoric that labels people fraudsters and says that they are on the make when they are anything but.

When we consider the Bill, we should not forget that there was a 90% drop-off in employment tribunal claims when employments tribunal fees came into effect. Something similar could happen again with personal injury cases, with genuine victims priced out of justice and deterred from pursuing a claim for an injury that was not their fault.

It is not only Labour who oppose this Conservative attack on access to justice. The Justice Committee has explained that

“increasing the small claims limit for personal injury creates significant access to justice concerns.”

We agree with the Justice Committee and the recommendation of the Lord Justice Jackson review that the small claims limit should be increased in line with inflation, which would mean a rise to £1,500, not the £2,000 currently proposed. We have repeatedly tabled amendments to the Bill, and it is a shame that the Government have not listened. We have also made clear our position on tariffs, and it is a shame that the Government have not responded in a meaningful way to those amendments.

I am conscious that Mr Speaker has asked that I shortly draw my remarks to a conclusion, but I urge every Member of this House to look at the chart produced by the House of Commons Library at page 30 of the briefing and ask themselves whether this is just. What does the chart show? It shows that compensation for an injury lasting up to six months will fall to a fixed £470, down from the current average of £2,150—down by three quarters. Compensation for an injury lasting 10 to 12 months will be £1,250, down from the current average of £3,100—down 60%. Compensation for an injury lasting 16 to 18 months will be £2,790, down from £3,950—down by 30%. Is that what the Conservatives mean by justice?

Injured people who have done nothing wrong are losing out and being placed at a huge disadvantage. If Conservative Members do not want to take Labour’s word for it, they should at least think very carefully about what was said in the House of Lords. The point has already been made that this Bill undermines the independence of the judiciary with the tariff system. We have commented on the definition of whiplash and on the fact that the Government are making out that fraud is taking place on an industrial scale. Do something about cold calling from claims management companies; do not target injured people.

Why not exempt children? People outside this place will not believe that the Government did not concede on our common-sense amendment and have refused to budge on the discount rate.

The central purpose of the Bill is to tip the scales of justice against injured people and in favour of insurance companies’ profits. The Conservatives have shown that this is about lining the pockets of insurance companies by refusing to vote for Labour’s considered amendments, which would have protected vulnerable people and safeguarded fair treatment for victims. This attack on justice is not the first by this Government since 2010—after legal aid and employment tribunal fees—and I fear it will not be the last Tory attack on access to justice.

The wider measures that the Conservatives plan to introduce alongside the Bill will leave tens of thousands of people unable to enforce their legal rights. The Bill may well turn out to be the thin end of the wedge for yet more restrictions on justice in all personal injury cases. If it passes, it will be celebrated as a great victory by the insurance companies in whose interests it has been conceived and drafted, and it will be ordinary people, whose rights are gradually chipped away, who pay the price. That is why Labour will be voting against Third Reading tonight.