An inappropriate delegation of power?

The Delegated Powers and Regulatory Reform Committee recently published a short report on the delegated powers as drafted in the Civil Liability Bill. Click here to view the report.

The Committee states that it is wrong for the Government to present the Bill as currently drafted, because it attempts to give itself so much discretion over:

1. The definition of “whiplash injury”, and;
2. The form of the tariff of damages for a whiplash injury.

The Committee argues that both should be in the Bill and not left to future regulations.

It certainly echoes what many of us have been saying – as mentioned in our previous client alert, the appearance of the Bill has not provided us with the certainty we were hoping for. The reference to regulations throughout leaves too much to supposition.

So what can we expect following this report? Will we hear the Government’s comments in response with the Bill’s Second Reading taking place right now?

At the time of writing, we have heard that a Labour Peer (Lord Beecham) has already referenced these comments, inviting the Government (represented by Lord Keen) to respond.

Of course, Lord Keen need not accept the proposals. The Committee’s recommendations are just that and the Government is not required to accept them. However, it would be politically difficult to ignore these comments, particularly given that both the defendant and the claimant community have expressed similar concerns.

Our view is that they are likely to concede on one if not both points. This may result in amendments being brought forward by the Government at the Lords’ Committee Stage, or even during the Commons’ stages if they decide they need more time.

If the Government does amend the Bill as anticipated, it will reduce their ability to tweak post-Royal Assent, while also limiting their options to close any loopholes that may be exploited at a later stage. As we know from experience, the claimant community are adept at gaming whatever system exists in order to turn a profit.

As mentioned above, the Second Reading of the Civil Liability Bill is taking place right now (afternoon of Tuesday 24 April). We shall monitor the debate carefully and will continue to keep you updated with developments.