The House of Lords Committee stage of the Civil Liability Bill is complete. There were two days of discussion, with many amendments tabled and debated.
None were put to a vote. This, however, is not unusual. Amendments are generally tabled to stimulate debate and gauge the Government’s reaction before votes are put forward at Report Stage. This is likely to take place next month.
What conclusions can we draw at this juncture? Have the Government been forced to change their stance on any particular issue? And what have the main learnings been from each of the two days of debate?
We have set out what we believe to be the key observation of each of the two Committee stage sessions:
Following the Second Reading, it was clear that there was a lot of pressure on the Government to reveal the draft regulations referred to within the Bill. You may remember that the Delegated Powers and Regulatory Reform Committee, in its report published 19 April (see our client alert here), declared that the Government inappropriately delegated too much power to itself by using regulations to set out the definition of whiplash and tariffed damages. The Committee’s view was that such important provisions should appear within the Bill itself.
Most likely as a direct response to this, the Government published its draft regulations just a few days before the first day of Committee stage of the Bill. Peers were pleased to see the draft but also quick to highlight their concerns with the current approach.
Lord Keen considered the representations made but refused to be drawn on the issue, stating:
“The detailed definition of whiplash injury will need to reconcile the current legal understanding with an accurate medical definition covering both injury and symptoms. Our aim is to achieve that objective, but to what extent we achieve it by incorporating the definition in the Bill is not a matter on which I would take a final position.”
Many of the amendments tabled for Part 2 of the Bill (which deal with the discount rate provisions) sought to speed up the process for the first review of the rate. There was a general recognition that the current situation needs addressing as quickly as possible.
Lord Keen made sure to stress the importance of allowing proper time for both the establishment of the expert panel and for the panel to be given an adequate opportunity to complete a thorough analysis of the issues. However, here are three examples of the amendments seeking to reduce the 90 day allowance for the commencement of the first review:
Peers from all different parties agreed, particularly due to the effect felt by the public purse through claims made against the NHS, that speed is of the essence. The Earl of Kinnoul, for instance, highlighted the fact that the latest annual report of NHS Resolution states that “moving the discount rate from plus 2.5% to minus 0.75% has meant that the cost of medical negligence to the NHS, every year, will be an extra £1.2 billion. That means that every day £3.3 million is not being spent on the NHS front line.”
The Government cautioned that the current timescales allowed for any uncertainties that may emerge, but recognised that a timely first review was desirable. Lord Keen, in response, said:
“What I would emphasise is the word “within”. These are outliers, but we are determined to carry out the process as swiftly as we reasonably can.”
Lord Keen has managed to fend off the various attacks to the Bill thus far. He appears to have gone some way to persuading his fellow peers that the Bill, as currently drafted, will improve the claims environment but in some instances he has agreed to meet some of them to discuss their concerns before the Bill comes back to the House of Lords.
However, the legislation will be put to proof at Report Stage. It is then that peers will select which amendments they want to push through to a vote. There will be a lot of thinking through the comments made both in response to each suggested amendment at Committee Stage and by Lord Keen in his forthcoming meetings before deciding which amendments to pursue.
The Keoghs Market Affairs Team will be staying close to this piece of legislation as it progresses through both Houses of Parliament. A reminder of the various stages of the Bill can be found in our client alert here.
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