Victims Strategy
Gloria De Piero Excerpts(5 years, 7 months ago)
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Gloria De Piero (Ashfield) (Lab)
I thank the Minister for his kind words, his tone, and the commitment to victims that he demonstrated in his speech. There is, of course, much to welcome, and although I know he is relatively new to this role, I will raise once again the deep frustration that I feel, because it is years since the Government first promised that they would enshrine key entitlements for victims and witnesses in primary legislation. These measures are welcome, but it seems a little late to be still saying “consultation, consultation, consultation.” I suppose victims will have to wait a little longer for their rights to be taken seriously, and for some of the positive measures mentioned to be guaranteed by law.
Rights in the current victims code are not sufficiently enforceable, and without the power to enforce that code in law, it is left to the police, prosecutors, courts and the Parole Board to monitor how well they comply and to mark their own homework. Well-meaning but underfunded service providers are creaking under the weight of Government cuts, and unscrupulous practitioners are still able to leave victims without their rights or any come back.
As I have been saying for months, the only thing that will do is legislation. The Victims’ Commissioner, whom the Minister rightly praises, has called for a victims law, and for seismic change in the culture of the justice system. Victim Support has demanded legislation, along with a raft of other campaigners. The Government now say that they will consult on a revised victims code in 2019—nearly half a decade after they first promised to provide a victims law—and on the detail of victim-focused legislation. Can the Minister say what part of victims’ rights would not require legal status? Why not make the entire code law, along with any welcome and necessary additions?
I was dismayed, although not entirely surprised that, after I submitted various written questions—I think this was before the Minister’s tenure—I discovered that the Government do not collect data on the experiences of victims in the criminal justice system, or on how the code is being implemented. They could not tell me how many breaches of the victims code there have been in the past 12 years, how long it takes for victims to receive any compensation they have been awarded, or how many victims of domestic violence have been cross-examined in court by the perpetrator—the list goes on. The Government simply do not monitor whether the code, which they admit is known about by only a fraction of victims, is having any effect. Will the Government commit to act by looking at how this is or is not working, now and after any legislation is passed? Can the Minister tell me the answer to any of those questions today? Will his Department commit to annual reporting on the state of victims’ rights?
It is also disappointing that some fundamental issues that victims and campaigners have been shouting about from the rooftops are not addressed in the strategy. Why are there no measures to stop the barbaric process of allowing victims of rape to be cross-examined in a way that is designed to undermine their credibility? We have seen instances of rape survivors being grilled by their previous partners about their underwear and even about owning sex toys in an attempt to undermine their credibility and to show that their sexual history meant they were surely consenting to their rapist.
Meticulous research from Dame Vera Baird QC, the former Solicitor General, and the Northumbria police and crime commissioner, to whom the Minister referred found that rape complainants’ previous sexual history was used as evidence in 37% of the trials she studied. In the majority of those cases, the evidence used related to the women’s sexual activity with men other than the defendant. In almost two thirds of the cases where previous sexual history was used in evidence, the proper procedure to apply for the judge’s consent ahead of trial with notice to the prosecution was not followed. There was either no application or it was made at trial without notice. In one trial, the defence barrister said that his line of questioning was to show that “she is an adulteress”. Surely the Government can see that that is outrageous—we are living in 2018—especially after so much progress has been made by the Me Too movement.
Sarah Champion
I am sure that my hon. Friend is also aware and deeply shocked that in cases of child sexual exploitation, children are disproportionately asked about their past sexual behaviour, which then goes out in front of the court. Surely that must be stopped.
Gloria De Piero
My hon. Friend is absolutely right, and let me take this opportunity to commend her for her rigorous and unstoppable campaigning work. That is a very good point, which, if we are having a consultation, should be included in it.
The Victims’ Commissioner for London rightly said that this process re-traumatises victims. It causes them irreparable harm and prevents other victims from coming forward, yet we see nothing about that in the strategy.
Stephanie Peacock (Barnsley East) (Lab)
My hon. Friend is making a very powerful point. Half of all clinical commissioning groups have plans to reduce their spending on mental health. Does she agree that this will have a significant impact on survivors of sexual assault and domestic violence, for whom mental health services are so important in helping them to recover from trauma?
Gloria De Piero
I thank my hon. Friend for making that point. Yesterday was World Mental Health Day. For anyone—there may be people in this House who have suffered the trauma we are discussing—to have to go through that trauma without the mental health support one would inevitably need is shocking.
A victims law presents a unique opportunity to protect rape victims from the ordeal of having their sexual history dragged through the courts. Does the Minister deny there is a problem, or will he, at the very least, commit to including this issue in the forthcoming consultation?
My hon. Friend the Member for Barnsley East (Stephanie Peacock) mentioned mental health. The strategy makes little mention of the mental health trauma most victims experience after their ordeal and the long-lasting effects it has on their lives. One third of forensic physicians who support victims after a sexual assault say accessibility to mental health provision is poor, so they cannot always refer victims to the help they desperately need. The Victims’ Commissioner for London talks about rape and sexual violence victims who have been left unsupported on waiting lists for six months or more after unimaginable trauma. The Government need to guarantee victims’ decent mental health provision by law and fund it adequately, not as a Cinderella service. Can the Minister give me some reassurance on that today?
The Conservative party claims that austerity is over. Can the Minister confirm that a number of spending pledges in the victims strategy, on which I have sought clarification through written questions, such as the £18.8 million for domestic abuse accommodation services and £8 million to support children who witness domestic abuse, are not in fact additional funding commitments but money shifted from elsewhere in existing budgets? Will he tell us which other areas and services will lose out as a result?
What about the personal finances of victims? I recently had a harrowing conversation with a woman whose husband was given a 16-year sentence for her attempted murder. She is now having to pay enormous legal fees to divorce him, knowing that he is likely to be entitled to some of her money, her pension and her home. Where is the justice in that? When two women a week are murdered by a partner, this is no small problem. This absurd situation cannot be allowed to continue. The presumption must be that there is a loss of financial entitlement, enforced by law, in all but the most exceptional cases of murder or attempted murder of a spouse. Will the Minister commit to legislation that strips attempted murderers of their spousal rights, which they surely forfeited when inflicting such brutal damage on their partner? I hope Government Ministers will work with us to amend the law and ensure that this obvious injustice is ended.
Other victims who feel that perpetrators have got off far too lightly include the families of people killed on our roads. In 2014, 25-year-old Joseph Brown-Lartey was tragically killed in Rochdale by a reckless motorist driving at 80 miles per hour in a 30 miles per hour speed limit zone. The offender was sentenced to six years in jail and was released after just three. The family of this young person with so much to live for are rightly furious that this driver can walk free while they are left to grieve. It is almost a year to the day since the Government committed to increasing the maximum sentence for causing death by dangerous driving, yet the families of those killed are still waiting for changes. Will the Government tell us when we can expect those increases to come forward?
There is no Government commitment to introducing an independent violence advocate to support victims as they recover and seek justice. Victims should not have to navigate an extremely complex system alone. Will the Minister agree with me and the Victims’ Commissioner for London, and commit to that in the new strategy?
As the Victims’ Commissioner, Baroness Newlove, has said, victims should not have to fight their own corner. This strategy, although it does contain positive measures, leaves far too much to be desired for victims, who will still feel on their own under this Government. It is time for real action by passing a proper victims law.
Oral Answers to Questions
Gloria De Piero Excerpts(5 years, 7 months ago)
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The Minister of State, Ministry of Justice (Rory Stewart)
As the Secretary of State has made clear, we feel very strongly that we should look and act on the evidence that a short-term prison sentence is more likely to lead to reoffending than a community sentence, and that therefore, in a sense, it endangers the public. The point of a sentence of any kind must be primarily to prevent offending happening in the future. For that reason, we will look very carefully at emphasising community sentences.
Gloria De Piero (Ashfield) (Lab)
It defies belief that a spouse convicted of attempting to murder their partner can have any financial claim on their assets as part of a divorce settlement. Does the Minister agree with that principle and will she meet me to look into changing the law to ensure that there is no financial entitlement in all but the most exceptional of those cases?
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
The shadow Minister makes a very important point, and the issue has also been highlighted by The Guardian. The Matrimonial Causes Act 1973 says that the conduct of the parties in a divorce can be taken into account in the distribution of assets and, if it would be inequitable, to disregard it. I am very happy to discuss the issue with her and to meet her to do so.
Civil Liability Bill [ Lords ] (First sitting)
Gloria De Piero ExcerptsTuesday 11th September 2018
(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 September 2018 - (11 Sep 2018)
Robert Courts (Witney) (Con)
Further to that point of order, Mr Stringer. I would like to make a similar declaration, because I used to practise as a personal injury barrister.
Gloria De Piero (Ashfield) (Lab)
Further to that point of order, Mr Stringer. I declare the advice that I have received from Thompsons Solicitors, which will be entered in the register.
Craig Tracey (North Warwickshire) (Con)
Further to that point of order, Mr Stringer. I declare an interest as chair of the all-party parliamentary group on insurance and financial services, and as a former insurance broker.
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room. The selection list for today’s sitting is also available in the room.
Clause 1
“Whiplash injury” etc
Gloria De Piero
I beg to move amendment 8, in page 1, line 4, leave out clause 1 and insert—
“Definition of whiplash injury
(1) In this Part ‘whiplash injury’ means an injury, or set of injuries, of soft tissue in the neck, back or shoulder that is of a description specified by the Chief Medical Officer of the Department of Health.
(2) For the purposes of this Part a person suffers a whiplash injury because of driver negligence if—
(a) when the person suffers the injury, the person—
(i) is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or
(ii) is being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales,
(b) the injury is caused—
(i) by the negligence of one or more other persons, or
(ii) partly by the negligence of one or more other persons and partly by the negligence of the person who suffers the injury, and
(c) where the negligence of the other person or persons consists in an act or acts done by the person or persons while using a motor vehicle on a road or other public place in England or Wales.
(3) The fact that the act or acts constituting the negligence of the other person or persons is or are also sufficient to establish another cause of action does not prevent subsection (2)(b) being satisfied.
(4) For the purposes of this section references to a person being carried in or on a vehicle include references to a person entering or getting on to, or alighting from, the vehicle.
(5) In this section—
‘act’ includes omission;
‘motor cycle’ has the meaning given by section 185(1) of the Road Traffic Act 1988;
‘motor vehicle’ means a mechanically propelled vehicle intended or adapted for use on roads;
‘road’ means a highway or other road to which the public has access, and includes bridges over which a road passes.”
This amendment would require the Chief Medical Officer to define “whiplash injury”.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 1, page 2, line 3, at end insert—
“(iii) unless in respect of 4(a)(i) or (ii) the person is in a motor vehicle during the course of their employment, in which case Clause 1 shall not apply.”
This amendment would exempt people suffering a whiplash injury during the course of their employment from this definition.
New clause 9—Exemption for vulnerable road users and people injured during the course of their employment—
“(1) Nothing in Part 1 of this Act other than Clauses 6 and 7 shall apply to a claim made by—
(a) a pedestrian, cyclist or horse rider; or
(b) a person injured in the course of their employment.”
This new clause would exempt vulnerable road users and people injured in the course of their employment from the provisions of Part 1 of the Bill, except Clauses 6 and 7.
Clause stand part.
Gloria De Piero
It is a pleasure to serve under your chairmanship, Mr Stringer. With amendment 8, we seek to address the Government’s perplexing lack of faith in experts and their overweening belief that their own judgment is right. In the Bill, the Government have chosen to sideline doctors and, as we will see later, judges—two groups rightly held in high esteem in our society. Apparently, the Government know better than them. Quite simply, with this amendment, we say, “This is a medical issue, so ask a doctor.”
Although we have seen the same arrogance that the Government know best and a lack of respect in other areas of policy in recent years, this is the most gratuitous and egregious example I can recall. The only explanation that I can think of as to why they do not want experts involved is that they think that their knowledge is greater and better—or perhaps this is an example of the nanny state that they say they do not believe in.
The Government have chosen not to ban all compensation for whiplash, which indicates that they accept its validity as a medical condition, but they attempt to define it themselves. If they accept that it exists as a medical condition, surely it needs a medical definition. The Minister may tell me that the definition in the Bill comes from doctors. If so, might I ask who? They make no mention of any input from medical experts. Could it be that they have not mentioned their sources because the adviser in this case was all too familiar from almost every other aspect of this Bill? And might the definition of a medical condition in this Bill possibly have come from the insurers, who stand to profit enormously from this huge shift in the law?
On Second Reading in the Commons, the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), alluded to the possibility that in certain parts of the Bill the Lord Chancellor might be acting in a quasi-judicial capacity, although I note that the Minister did not respond to that suggestion. However, even if that were the case, although he might be required to act independently he would not be transformed into a medical expert, which is what is required here.
Before I talk about amendment 9 and new clause 9, can the Minister confirm that vulnerable road users will be exempted from the Bill and from the small claims limit? Also, will he define who a vulnerable road user is?
The Minister of State, Ministry of Justice (Rory Stewart)
Vulnerable road users will be excluded from the Bill and from secondary measures on the small claims court limit. A vulnerable road user is anybody who is neither driving a motor vehicle nor a passenger in one; in other words, the definition includes pedestrians, horse riders, motorcyclists or anyone else on the road who is not in a motor vehicle.
Gloria De Piero
I thank the Minister for putting that on the record.
We absolutely agree that there is a need to act against insurance cheats; no one supports fraudsters. The amendment would not affect the pursuit of those who are claiming fraudulently. By accepting this amendment, the Government can still hit their target. Through this amendment, we simply want to protect those who are injured in the course of their work through no fault of their own. Before it is suggested that this somehow drives a coach and horses through the Government’s intentions, we are not talking about huge numbers of cases.
Thompsons Solicitors deals with workers’ injuries day in and day out. The majority of its work is for the trade unions. Just 16% of its case load consists of injuries from road traffic accidents, and of that number whiplash cases comprise less than 20% of the total. Once we eliminate the large number of these claims that are not work-related, we are left with a tiny percentage of claims related to whiplash that people have suffered in the course of their work.
I have seen no complaint of fraud levelled by the Government against workers nor any suggestion that they are anything to do with the compensation culture of which there has been so much talk, although notably Lord Young said in his report, “Common Sense, Common Safety”, that in any case that view was a perception and not a reality. The Association of British Insurers, which has been very active around this Bill, has produced no examples of fraudulent claims by workers.
This amendment is an opportunity for the Government to exempt employers’ liability claims from the Bill and at the same time exclude them from the small claims limit. If the Government refuse to exempt workers, are they saying that any whiplash claim is evidence of fraud, whoever it is made by? If so, why have they not banned all whiplash claims? If they refuse to exempt workers, are they saying that the police officer, the paramedic, the school bus driver or the firefighter who suffers whiplash while working hard for our communities is scamming it?
Given that the Government have exempted vulnerable road users—horse riders, pedestrians and cyclists—from both the Bill and the associated small claims changes, what is their justification for not exempting workers? Are they saying that vulnerable road users are worthy of more protection than workers? Perhaps the justification is that the cyclist, the pedestrian and the horse rider do not take out motor insurance for their road use, but neither does the professional driver. If the justification for the exemption of vulnerable road users is that they are uniquely exposed, surely the professional driver is, too? For instance, there is the police officer in a high-speed chase or the HGV driver who is on the road for eight hours a day. The reality is that the Government have exempted vulnerable road users because including them would be politically untenable.
Craig Tracey
I just do not see any reason why someone who drives as part of their employment should recover a different sum to somebody else—one of our constituents, for example—who is driving in the normal daily course of their life, because they can still claim loss of earnings. The Bill does not change that, so they can still be compensated if they lose money as a result of being unable to work.
Gloria De Piero
It would be grotesque nonsense for a cyclist or a pedestrian injured through no fault of their own to find themselves subject to a tariff and a £2,000, let alone a £1,000, small claims limit when the target is whiplash and, in turn, apparently fraud. The same applies to workers. What on earth have they to do with whiplash for the purposes of fraud? If the Government will not move on this point, the only conclusion one can draw is that there is one rule for the small number of those wealthy enough to own a horse and another for the tens of thousands who drive for a living, many of them not in well-paid jobs—say, the paramedic or the refuse collector—who run the risk of whiplash when going about their jobs.
It is deeply disappointing that the Government are sneaking through crucial parts of their changes via a statutory instrument in order to avoid this sort of scrutiny. I wish to make perfectly clear today where the Opposition stands on workers for the entire package of measures. Workers, like vulnerable road users, should be excluded from both the Bill and the small claims increases.
Rory Stewart
It is a great privilege to serve under your chairmanship, Mr Stringer. Thank you again for the serious involvement that has gone into the debate. It has been a real privilege, as somebody who is not a legal specialist, to see how many well informed and distinguished colleagues we have on both sides of the House contributing to these interesting questions of definition.
Many of the amendments we are dealing with today reflect the work of the House of Lords and, in fact, of Opposition Members of the House of Lords—Labour Members, Liberal Democrat Members and Cross Benchers—who introduced many of the clauses into this Bill, which were not originally there and which we are now discussing. With your permission, Mr Chair, I will move quickly through amendments 8 and 9 and new clause 9 and then discuss why we feel clause 1 should stand part of the Bill.
The definition of whiplash, which is dealt with in amendment 8, was placed in the Bill after extensive debate pushed by the Delegated Powers and Regulatory Reform Committee of the House of Lords. In the initial version of this Bill, we had not sought to define whiplash. The DPRRC argued carefully and at great length that it felt strongly that it was inappropriate to have legislation of this sort if a definition was not in the Bill. The Committee felt it was not appropriate for any individual, whether a Minister or a chief medical officer, to make this definition on their own. It should be made by Parliament as a whole and it should be made fully explicit.
After a great deal of debate in the House of Lords, we conceded this point. The clause was inserted and everybody—Cross Benchers, Opposition Members of the House of Lords—nodded the amendment through. It was then inserted. The reasons for this are both those brought forward by the DPRRC and, I would add, to assuage some of the concerns put forward by the Opposition. Clause 2 also allows for a review of the definition by the chief medical officer, along with others, every three years to make sure it remains in touch with medical science and medical expertise. The definition is in the Bill and not purely provided by medical experts because, as the House of Lords argued, this is a medico-legal definition. In other words, it is not simply a question for medical specialists; it relates to the operation of law and the way in which the law of tort would operate.
The final reason for which I ask that amendment 8 be withdrawn is that I am afraid it refers only to the chief medical officer for England, whereas, of course, the legislation applies to England and Wales. That is why we feel strongly that clause 2, which refers to the chief medical officer for England and the chief medical officer for Wales and, indeed, the Lord Chief Justice and the Law Society in consulting on the definition of whiplash every three years, is the appropriate way to proceed. On that basis, I respectfully ask that amendment 8 be withdrawn.
It is easy to understand why amendment 9 was tabled and that the Opposition would be concerned. Again, we would respectfully argue that the key point is that the injury has occurred and not why the individual is in the car. The question of why they are in the car would be a distinction without a difference. There are many pressing reasons why somebody might be in a car. I, like many Members here, represent a rural area. Somebody might be in a motor car, for example, because they were having to drive their child urgently to a hospital. They might be in a motor car for any number of reasons that left them with little choice but to be in the car. It would seem invidious to distinguish between them and somebody else who is in the car for the purpose of employment, purely on the basis of the injury. The key is the injury and the fact that the third party who is liable for that injury is held liable.
Rory Stewart
The key point, which goes against both Government and Opposition Members, is not the likelihood of having an accident. That should not affect the level of compensation that someone receives. That should be relative to one thing only: the nature of the injury and the prognosis. It should not be relative to why someone is in the car, how well or how frequently they drive or why they are driving. On that basis, I politely ask that amendment 9 be withdrawn.
New clause 9 reiterates some of the arguments in amendment 9; in other words, it focuses on the question of people injured during the course of their employment. However, it also references vulnerable road users. I have attempted to argue the relevance of someone driving a vehicle in the course of their employment in our discussion on amendment 9. On vulnerable road users, we respectfully request that new clause 9 be withdrawn for the reason I gave in my intervention on the hon. Member for Ashfield—vulnerable road users are already exempted by the Bill, so new clause 9 will be otiose.
On that basis, I respectfully ask that clause 1 stand part. This was a good and serious reform introduced with strong cross-party support by the House of Lords, driven by the DPRRC, which provides a much more accountable, transparent and predictable definition of whiplash to guide the legislation. We owe the Lords a huge debt of gratitude for that. We ask, on the basis that Members of the House of Lords from the Labour party, the Lib Dems, the Cross Benches and the Conservative party all agreed to it, that clause 1 stand part of the Bill.
Gloria De Piero
I have listened to the Government’s arguments, but do not accept them. The Bill’s objective is to reduce fraud. I have not heard anybody suggest that workers injured in the course of their employment are scammers. However, I have heard from Labour Back Benchers that workers drive all day and do not have a choice about whether to drive. I will divide the Committee on the amendments.
The Chair
Before the hon. Lady concludes, does she wish to divide the Committee on amendments 8 and 9?
Gloria De Piero
I beg to move amendment 10, in clause 3, page 3, line 21, leave out “two years” and insert “twelve months”.
This amendment would limit the tariff to injuries lasting less than one year.
The Chair
With this it will be convenient to discuss amendment 11, in clause 3, page 3, line 22, leave out “two years” and insert “twelve months”.
This amendment would limit the tariff to injuries lasting less than 1 year.
Gloria De Piero
The Bill says that if someone’s whiplash injury goes on for up to two years, or if it is thought that it might go on for up to two years, or if it goes on for up to two years because of their failure to “mitigate” their loss—that is, act to get themselves better by taking up an offer of physio, for example—they are eligible for fixed-tariff damages only.
Since 1999, special damages have been exempted from the calculation of whether a claim falls within the small claims limit. I will take this opportunity to nail down the ongoing argument about when the last increase in the small claims limit was. The Government say 1991, which is disingenuous and borders on the dishonest. I can provide quotes from the White Book if the Minister would like to see them. The limit has remained at £1,000 since 1991 but the method of calculating whether a claim falls within that limit changed in 1999 after the Woolf report. If any doubt remains, the evidence can be found in extracts from the White Book before and after the change.
From 1999, a definition of what was included in the £1,000 limit excluded special damages. It contains a helpful example that leaves no doubt that only general damages should be considered to see if a case is within the limit, and special damages are exempted from that time. I am told that special damages in a case add 20% to a claim on average, which means that the change in 1999 increased the limit by 20%. I shall assume that we have now laid that matter to rest and that any calculation from now on will be from 1999, not 1991. We may argue about the appropriate inflation index, or even the percentage increase from the changes made, but there should be no argument about the date from which it applies.
The impact of the clause is that someone could be off sick and losing wages, or having to work reduced hours, because of their whiplash complaint for up to two years before they are taken out of tariff damages. The Office for National Statistics says that the average wage in the UK was £27,200 in 2016-17, so an injured worker could lose more than £50,000 in earnings and still be subject to tariff damages. Someone on the minimum wage of £7.38 who works 35 hours a week for 48 weeks a year might earn £12,400, so they could have no income at all to support themselves and their family for up to two years.
Ruth George
Does my hon. Friend agree that the proposed tariff takes no account of victims’ circumstances? A whiplash injury will have a greater effect on someone in a manual job, who is less likely to be able to perform that job, than someone in a sedentary position, who is more likely to be able to continue to work through minor injury. Someone in a manual job is also likely to have lower wages and be less able to sustain a certain level of loss.
Gloria De Piero
My hon. Friend is completely in touch with the reality of life for working people. That is the argument that we seek to make. In tabling amendments 10 and 11, which bring that two years down to 12 months, we concede that people recover and that that can take time. We are not suggesting a short period, but a reasonable one, and we hope that the Government will concede that it is fair and proportionate.
On amendments 12 to 16, it is proposed that the Lord Chancellor should set the tariffs for pain, suffering and loss—
Rory Stewart
The hon. Lady puts her finger exactly on the current situation. Currently, the decision is in the hands of the insurance companies. The argument in the legislation is to take that decision away from the insurance companies; it will prohibit them from making an offer without a medical report. That was supported by the Opposition as well as the Government, and that is exactly the intention of the legislation. That is another reason why we will resist amendments 10 and 11.
Gloria De Piero
Does the Minister accept that, although the small claims limit has remained at £1,000, the way that was calculated changed in 1999?
The Chair
Order. Can I just say to the hon. Lady that the Minister had sat down? It is appropriate to intervene when the Minister is on his feet. If the Minister wishes to make a statement in response, I will take it.
Rory Stewart
This is a good challenge. It is not, respectfully, relevant to amendments 10 and 11, but relates to the question of something that will be done by the Procedure Committee, if it were to proceed through secondary legislation—a proposal to raise the limit from £1,000 to £2,000. The hon. Lady is correct that in 1999, changes were made to how the £1,000 limit was calculated, which adds an extra level of complication.
There is also a debate between us on whether CPI or RPI should be used to move that initial 1991 definition and, if so, to what amount. Should the hon. Lady wish to proceed, that is appropriate—not for this amendment or the Bill, but for subsequent measures.
Gloria De Piero
We do not intend to divide on this but we will raise these issues again on Report and Third Reading.
Gloria De Piero
It does, and I thank you for your advice. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Gloria De Piero
I beg to move amendment 12, in clause 3, page 3, line 26, leave out from “amount” to end of line 5 on page 4 and insert
“determined in accordance with the 14th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases or any subsequent revision to these guidelines.”
The Chair
With this it will be convenient to discuss the following:
Amendment 13, in clause 3, page 3, line 33, leave out subsections (3) to (7).
This amendment, together with Amendments 14 to 16, would replace the tariff with the Judicial College Guidelines for the assessment of damages.
Amendment 14, in clause 3, page 4, line 7, leave out
“to which regulations under this section apply”.
See the explanatory statement for Amendment 13.
Amendment 15, in clause 3, page 4, line 9, leave out
“(subject to the limits imposed by regulations under this section)”.
See the explanatory statement for Amendment 13.
Government amendment 4.
Amendment 16, in clause 3, page 4, line 18, leave out subsection (11).
See the explanatory statement for Amendment 13.
Gloria De Piero
The Bill proposes that the Lord Chancellor, rather than judges, should set the tariffs for pain, suffering and loss of amenities. In view of the opposition from those who are judicially qualified and the upholders of the law, can the Minister not see the sense in the point that no politician should be making decisions for which the judiciary is rightly responsible?
To go down that path sets a dangerous precedent. It may be justified by Government when they are the paymasters in the criminal injuries compensation scheme, for example, but in any other sphere of injury compensation it takes away an integral role of the judiciary and introduces another layer of bureaucracy.
The current calculation of damages by both sides—claimant and defendant—is made using the Judicial Studies Board guidelines. Those are based on what judges have awarded in the past—on what is fair. They are used by the parties to guide settlement out of court and by judges in court at trial. That makes the JSB the best guide to what is just and proper in terms of damages awarded. The Government are throwing all that out in favour of the Lord Chancellor—someone with far less expertise and a political agenda.
A lot of people would say that the JSB guidelines are what is just, or that they represent justice for the victim, although I have my doubts about that. After all, although special damages for losses and expenses can put someone back in a position financially, as if the injury had never occurred, general damages can only apologise for what someone has been through and may continue to suffer; they cannot make anyone better. That is at least, for now, something that the courts decide is appropriate; it is not a figure plucked out of the air.
The Government’s attitude is, “What would experts know? It might be a basic tenet of English common law that people are compensated fairly and judges are best placed to assess that but, so what? Let’s rip it up!” That is to ignore Lord Woolf, who said:
“The effect of whiplash injuries, with which we are concerned, can vary substantially according to the physical and mental sturdiness of the victim. This means that the appropriate amount of damages for a whiplash injury can vary substantially…I suggest they are not suited to a fixed cap, as proposed by the Government.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1593.]
Rory Stewart
The answer is exactly for that reason. Because they are so hard to detect, they are almost impossible to fight, and therefore insurance companies have historically made that decision. They often do not even get a medical report because it hardly seems worth while to do so. When somebody comes forward with a whiplash claim, the procedure has often been to settle without going to court in order to reduce the legal fees and the associated costs, exactly because it is incredibly difficult.
Whiplash claims are extremely controversial medically. A lot of articles are written about this—I quoted the New England Journal of Medicine in the House, which is particularly stark. Cassidy’s article argues very strongly that the absence of compensation for pain and loss of amenity is associated with a much improved prognosis and reduced duration in the whiplash injury itself. In other words, the New England Journal of Medicine points to the fact that this is not purely a medical phenomenon. It has social and legal dimensions, of which compensation is a part.
Gloria De Piero
Is the Minister familiar with the quote from the head of the City of London police insurance fraud enforcement department? He said in the Insurance Post:
“It would be wrong to say that I believe there is a compensation culture or an insurance fraud culture in general.”
Another expert denied?
Rory Stewart
Such arguments would be more powerful if Opposition Members could explain why the number of whiplash claims has gone up by 40% since 2005, when the number of motor vehicle accidents has declined by 30% and cars have got much safer? A lot of things have been introduced in cars since 2005. Nearly 85% now have the safety features specifically designed to reduce whiplash that only 15% had in 2005. There are fewer accidents and much better protection around the individual.
Rory Stewart
Fundamental to decisions that the Ministry of Justice has to make under any Government is the need to think seriously about balancing different types of interest—in this case the interests of the claimant, the third party and the taxpayer, as well as those of road users and people who take out motor insurance. It is therefore appropriate for us to question the overall cost of the system, and—particularly for motorists in rural areas—the fact that the premium could be as much as £35 a year extra, and considerably more for a young driver, because of the hundreds of thousands of people each year who make whiplash claims.
Gloria De Piero
Insurers have never mentioned fraud as a material risk in their financial report. If it were such a serious concern, would they not be required to report it to the Financial Reporting Council?
Rory Stewart
The question of what constitutes a material risk in a financial report is driven primarily by the financial stability of the company, so the question of whether fraud is defined in that way relates purely to the cost of the fraud. The question is a financial one, not one of honesty.
Amendments 12, 13, 14 and 15 relate to the Judicial College guidelines. This debate has had quite a long consultation period—it has been going on for more than three years. We are grateful to the Association of Personal Injury Lawyers and many others, including the Law Society, who have fed in to this consultation, and we have arrived at a compromise. The Opposition were extremely uncomfortable with the initial proposals, and we have made a lot of concessions—that is why I will be asking hon. Members to withdraw their amendments.
The initial proposals by the Chancellor of Exchequer in his Budget speech were to remove general damages entirely, and for no compensation to be offered for pain, suffering and loss of amenity. There was also a proposal to have no judicial involvement whatsoever in setting levels of compensation, and the third element of controversy was about whether it was appropriate to have tariffs at all.
We have made significant concessions on the first two points—in the House of Lords for the second proposal, and before that stage for the first proposal. Under pressure from many people, including Opposition Members, we have accepted that there should be general damages, and that principle has been reinserted. Secondly—this is why I will ask for support for clause 4—we will push ahead with the proposal that the Lord Chief Justice should be consulted on the level of the tariffs. That brings in the judiciary so that it will not be done purely by the Lord Chancellor, which brings us to the question of whether there should be tariffs at all.
A tariff system is relatively unusual in English common law although, as the hon. Member for Enfield, Southgate pointed out, an equivalent exists for criminal injury compensation cases, which creates some paradoxes and contradictions. At the moment, someone who suffers a criminal injury could receive a different level of compensation than if they suffer exactly the same injury without a criminal act. The same is true if someone in a motor vehicle suffers from a terrorist attack. The Government could give someone considerably more compensation if they are the victim of a terrorist attack than if they suffer the injury in a different way.
However, tariffs are not unusual: they have been introduced very successfully in Italy, France and many other European jurisdictions. Under the proposals in the Bill, there will be judicial discretion on the tariffs. That is judicial discretion that we have consulted on closely and will return to under later amendments. It is in line with what the European Court of Justice believes should be the appropriate degree of judicial flexibility when applied to a tariff system.
Rory Stewart
This goes to the heart of the concerns that the judiciary raised when the first criminal injury compensation schemes were introduced and, indeed, when compensation for a terrorist act was introduced. As the hon. Gentleman suggests, it is perfectly legitimate to question whether, within the tradition of tort in the English common law, it is appropriate to distinguish between an injury suffered at the hands of a criminal or a terrorist and an injury simply suffered at the hands of another third party who is liable, but that is a much deeper philosophical jurisprudential debate than I think we can proceed with here. With that, I respectfully request that the amendments be withdrawn or not pressed and I ask the Committee to support Government amendment 4.
Gloria De Piero
I am afraid that I am going to disappoint the Minister. We feel so strongly, because we are led by the independent experts, by the Select Committee on Justice and by some people in the Minister’s own party, whom I quoted earlier, that we believe that the Committee needs to divide on amendments 12 to 16.
Question put, That the amendment be made.
The Chair
As I indicated, we have debated clause 3 sufficiently not to require any separate stand part debate.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4 ordered to stand part of the Bill.
Clause 5
Uplift in exceptional circumstances
Gloria De Piero
I beg to move amendment 18, in page 4, line 30, leave out Clause 5 and insert—
“Power of court to uplift the amount of damages payable
(1) A court may—
(a) determine that the amount of damages payable for pain, suffering and loss of amenity in respect of a whiplash injury or a minor psychological injury is an amount greater than the tariff amount relating to that injury;
(b) determine that the amount of damages payable for pain, suffering and loss of amenity in respect of a whiplash injury and one or more minor psychological injuries, taken together, is an amount greater than the tariff amount relating to those injuries;
(c) in a case where the court considers the combined effect of—
(i) an injury or injuries in respect of which a tariff amount is specified by regulations under section 3(2) or (4), and
(ii) one or more other injuries, determine that an amount greater than the tariff amount is to be taken into account when deciding the amount of damages payable for pain, suffering and loss of amenity in respect of those injuries.
(2) In this section ‘tariff amount’ means—
(a) in relation to a whiplash injury, the amount specified in respect of the injury by regulations under section 3(2);
(b) in relation to a whiplash injury and one or more minor psychological injuries, the amount specified in respect of the injuries by regulations under section 3(4).”
This amendment would allow judges to increase the amount of damages payable where they determine the tariff amount to be insufficient compensation, rather than capping judges ability to increase compensation awards to a percentage specified by the Lord Chancellor as the Bill currently does.
Gloria De Piero
This amendment would allow judges to increase the amount of damages payable where they determine the tariff amount to be insufficient compensation, rather than capping judges’ ability to increase compensation awards to a percentage specified by the Lord Chancellor, as the Bill currently does. Once again, I want to point out the long-standing tradition of trusting judges, rather than having politicians interfere with the discretion of the courts—a tradition that the Government are inexplicably undermining with this Bill.
Clause 5(3) states that if the court thinks there should be an uplift from the tariff because of the severity of the injury, the amount by which the court can increase the payment is limited according to a cap set by the Lord Chancellor. Not only are the courts being fettered by a tariff, but when they consider the tariff to be inappropriate, they will get their judicial wings clipped again. This reduces judges to little more than errand boys for the Lord Chancellor.
Many Lord Chancellors these days are not lawyers. They will rely on the advice of their officials, who need not have legal training either. If the Tories do not trust the judges, who do they trust? What are they scared of? What evidence do they have that judges will behave badly and award huge sums? What court cases can they point to in which that has happened? I can find none at all, and nor can the experts whom my team and I have consulted.
I suspect the insurers fear that without a cap, every tariff award will be taken to court, where judges will apply an uplift and blow up their tariff. If that is what they fear, it suggests that they secretly accept that the proposed tariffs are too low. Perhaps the reason for all these restrictions—all these fetters on what a judge can decide for themselves—is that the Government and the insurance industry are running scared that judges will, indeed, rebel against them. Not because judges are intrinsically rebellious—far from it, some would say; they are conservative with a big and a small c—but because they have a duty to be impartial and deliver justice, and the Government’s proposed tariff does not even remotely do that. Amendment 18 would restore judges’ lost autonomy.
Rory Stewart
I thank the hon. Lady for her speech. This amendment relates to the fundamental question of the tariff system and the relationship between the judiciary and the tariff system. Clause 5 provides a pragmatic compromise between a strict tariff system and judicial discretion by allowing the judges to lift that tariff in exceptional circumstances. However, as the European Court of Justice accepted in the arguments made in the Italian case, there needs to be a limit. If there were no limit to judges’ discretion, the tariff system would become unworkable.
In so far as we disagree about whether there should be a tariff system in the first place, I completely understand where Opposition Committee members are coming from. However, given that the fundamental cornerstone of the Bill is that there should be a tariff, we need to strike a pragmatic compromise between the tariff and giving some discretion to judges. Therefore, we propose that the Lord Chancellor will set a percentage of discretion for judges to uplift the tariff. We also propose that he will consult the Lord Chief Justice on the appropriate level of discretion. We will look carefully at the rulings of the European Court of Justice and the decisions that it has made in other countries where tariffs exist to arrive at that figure.
Rory Stewart
Clearly, a system of the sort we propose, which is modelled on the existing tariff systems in places such as France and Italy, is designed to set in law, through the actions of an accountable Minister, the level of the tariff. The argument is absolutely right. As the hon. Lady suggests, that will remove discretion from judges except in exceptional circumstances. The reasons for that are to do with our policy objective of dealing with the whiplash claim culture. Our intention is to reduce the damages paid for minor whiplash injuries, which are defined in the Judicial College guidelines as those that last less than two years. That will result in general damage payments lower than those currently awarded by judges. However, in exceptional circumstances, judges will be able to increase the award.
Gloria De Piero
What is the fear here? Is it that judges will make awards above the tariff set?
Rory Stewart
The Judicial College guidelines are simply a historical record of awards by the courts. It is a fact that those awards to date have been higher than the awards we propose in the tariff. The policy intention is to reduce the general damages paid, particularly for people at the three-to-six-month level. As we get closer to the two-year level, awards under the tariff come closer to the Judicial College guidelines, but at the lower end, as was suggested, there is a disagreement between the Government and the current practice of judges about the appropriate award for pain, suffering and loss of amenity.
There has been a lot of discussion about experts, but right hon. and hon. Members must remember that we are discussing general damages, not money for loss of earnings or to pay for physiotherapy. We are discussing a judgment of exactly how many pounds and pence someone should receive for a whiplash injury—for the subjective experience of pain in their neck or shoulder. It is difficult to argue that there is particular expertise on the question of the subjective experience of pain. Indeed, as the hon. Member for Enfield, Southgate suggested, it is impossible for anyone—whether they are a Minister, a judge or a doctor—to suggest that the money that is paid can remove the pain. The pain remains. Money paid in general damages is intended simply as an acknowledgement of the existence of pain, suffering or loss of amenity. It cannot, as would be the case with special damages, remove the pain itself. On that basis, I politely request that the amendments be withdrawn and the clause be accepted.
Gloria De Piero
We do not accept the Minister’s arguments, so will divide the Committee.
Question put, That the amendment be made.
Gloria De Piero
I beg to move amendment 19, in clause 6, page 5, line 37, after “injuries” insert—
“provided by an accredited medical expert selected via the MedCo Portal”.
This amendment, together with Amendments 20 and 21, would ensure that any medical evidence of a whiplash injury must in all cases be provided by a person registered on the MedCo portal website.
The Chair
With this it will be convenient to discuss the following:
Amendment 20, in clause 6, page 6, line 1, leave out subsection (3)
See explanatory statement for Amendment 19.
Amendment 21, in clause 6, page 6, line 22, at end insert—
‘(7) In this section, the “MedCo Portal” means the website operated by Medco Registration Solutions (company number 09295557) which provides a system for the accreditation of medical experts.’
See explanatory statement for Amendment 19.
New clause 3—“Recoverability of costs in respect of advice on medical report, etc.—
‘(1) For the purposes of civil procedure rules, the costs recoverable by a claimant who recovers damages in a claim for a relevant injury which is (or would be if proceedings were issued) allocated to the small claims track include the costs of the items set out in subsection (2).
(2) The items are—
(a) legal advice and assistance (including in respect of an act referred to in paragraph (a) or (d) of section 6(2)) in relation to the quantum of damages in the light of a medical report or other appropriate evidence of injury; and
(b) in a case where liability for the injury is not admitted within the time allowed by any relevant protocol, legal advice and representation in relation to establishing liability.
(3) For the purpose of ascertaining the amounts recoverable in respect of those items, the claim is to be treated as if it were allocated to the fast track.
(4) In this section “relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder, and which is caused as described in paragraphs (b) and (c) of section 1(4) (negligence while using a motor vehicle on a road, etc.), but does not include an injury in respect of which a tariff amount is for the time being prescribed under section 2.’
This new clause would ensure that a successful claimant is able to recover costs incurred for legal costs in respect of advice sought in relation to determining the quantum of damages following a medical report or the establishment of liability where it is in dispute.
Gloria De Piero
The amendments would ensure that any medical evidence of a whiplash injury must in all cases be provided by a person registered on the MedCo portal website. The Government say in clause 6 that cases should never be settled until the claimant has been medically examined. We fully agree, but amendments 19 to 21 would go even further. The Government say that the Lord Chancellor can decide what constitutes appropriate evidence, but it is very simple. The only form of appropriate evidence must come from a proper doctor registered as such on the portal website of MedCo, the umbrella organisation through which doctors in all personal injury cases are currently chosen. Why on earth would the Government not go through the currently accepted route for all other personal injury cases and the same process that insurers accept in every other case? The only people to gain from offers without a medical are defendant insurers who get cases off their books at an undervalue.
Lawyers for the claimant are obliged to put any offer to the client. Reputable lawyers will always advise against acceptance until there is a medical, but some clients are desperate and reject their advice. Unsurprisingly, and heartbreakingly, it tends to happen when a client’s sick pay runs out or perhaps near Christmas when people have been off sick and are desperate. Any downgrading of the requirement for a medical certificate by a medical registered doctor—this is the risk without the amendments —is just another way that vulnerable workers who have to take time off because of their injuries could be harmed by insurers who make record profits.
We suspect that the vagueness about what qualifies as proper medical advice might be an attempt to allow the use of physiotherapists for the evidence. Insurers have long pushed for that. Physiotherapists are great people doing wonderful work in an extremely important part of post-accident rehabilitation, but they are not doctors and are not able to assess and provide a long-term prognosis.
We fear that if we do not specify in the Bill who should provide the medical reports we will have injured people being prescribed a couple of sessions of physiotherapy and then being described by the insurers as malingering when they are not back to full health following the limited treatment, when in reality their condition might require far more intense rehabilitation efforts over a longer period. In some cases, the insurers might see a financial gain to employing a physiotherapist or owning a rehabilitation company. Without the amendments, that would suggest the insurers control not only the payment of damages, but the medical process leading to the award. Let us avoid that conflict. Let us trust doctors and specify where a medical report should come from. Any deviation from the gold standard of a medical doctor would negate the good that is done by effectively banning the settlement of whiplash claims without medical evidence, as this part of the Bill attempts to do.
On new clause 3, the Government say that the cases they intend to sweep into the small claims track are minor, straightforward and simple. We do not think that that is so, or that the injured claimant left on their own to fight insurance companies—let us be in no doubt that insurers will fight—will think that their cases are either small or simple. The new clause would ensure that, at the very least, when the injured person gets a medical report, as the Government in clause 6 rightly say they should, they can get independent legal advice on what the report means in terms of the value of their claim, so that, if they remain fighting on their own, they settle at an appropriate sum. How else would they know what their case is worth?
The Government might say that insurers will not rip people off and that they always pay what is fair. If that is the case, they have nothing to fear in ensuring that the injured get advice paid for that reassures them that that is the case. There is a societal benefit. If people settle at an undervalue or their conditions are not properly recognised, they will fall back on the state—the NHS or the benefits system—and the taxpayer will foot the bill that should properly have been met by the negligent party. The polluter will end up not paying and we will all pay through our taxes.
The same principle applies to cases where the insurers do not admit liability. The Government think that, when a claimant chooses to fight a case, the injured person will have the confidence to fight on. Facing a denial of liability, the claimant will, the Government think, be equipped to fight on, but, without help, we do not think they will be.
Rory Stewart
Perhaps we can return to that very interesting point on Report. It has not been raised in any of the amendments tabled so far, but I would be very interested to see an amendment tabled and to discuss the matter outside this Committee.
On the basis of the arguments I have made about MedCo, I respectfully request that the Opposition withdraw amendments 19, 20 and 21.
Gloria De Piero
Will the Minister say a bit more about the advice he has received from counsel and about why he will not accept the amendments?
Rory Stewart
It is pretty straightforward. MedCo is a non-profit organisation set up relatively recently as a portal funded by the insurance industry. We intend the Bill, like any law we pass, to have sustainability and resilience. Potentially, it will last 50 or 100 years. It is very difficult, looking forward over that period, to be confident that the exact portal or organisation by which doctors qualify to provide an assessment of whiplash will be called MedCo—it may be called something else. The measure provides the flexibility, through regulations from the Lord Chancellor, to define the form of evidence, the person, the accreditation and the regulation necessary to proceed. We think it would give a hostage to fortune to put the brand name of a specific non-profit on the face of the Bill. On that basis, I request that amendments 19, 20 and 21, and new clause 3, be withdrawn.
Civil Liability Bill [ Lords ] (Second sitting)
Gloria De Piero ExcerptsTuesday 11th September 2018
(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 September 2018 - (11 Sep 2018)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 20, in clause 6, page 6, line 1, leave out subsection (3).
See explanatory statement for Amendment 19.
Amendment 21, in clause 6, page 6, line 22, at end insert—
‘(7) In this section, the “MedCo Portal” means the website operated by Medco Registration Solutions (company number 09295557) which provides a system for the accreditation of medical experts.’
See explanatory statement for Amendment 19.
New clause 3—Recoverability of costs in respect of advice on medical report, etc.—
‘(1) For the purposes of civil procedure rules, the costs recoverable by a claimant who recovers damages in a claim for a relevant injury which is (or would be if proceedings were issued) allocated to the small claims track include the costs of the items set out in subsection (2).
(2) The items are—
(a) legal advice and assistance (including in respect of an act referred to in paragraph (a) or (d) of section 6(2)) in relation to the quantum of damages in the light of a medical report or other appropriate evidence of injury; and
(b) in a case where liability for the injury is not admitted within the time allowed by any relevant protocol, legal advice and representation in relation to establishing liability.
(3) For the purpose of ascertaining the amounts recoverable in respect of those items, the claim is to be treated as if it were allocated to the fast track.
(4) In this section “relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder, and which is caused as described in paragraphs (b) and (c) of section 1(4) (negligence while using a motor vehicle on a road, etc.), but does not include an injury in respect of which a tariff amount is for the time being prescribed under section 2.’
This new clause would ensure that a successful claimant is able to recover costs incurred for legal costs in respect of advice sought in relation to determining the quantum of damages following a medical report or the establishment of liability where it is in dispute.
Gloria De Piero (Ashfield) (Lab)
It is a pleasure to serve under your chairmanship, Sir Henry. The Minister had just concluded his remarks, and I had started to say that we would press the amendments in the group to a Division.
Question put, That the amendment be made.
Gloria De Piero
I beg to move amendment 17, in clause 8, page 7, line 15, at end insert—
‘(4A) The Treasury must, within one month of the passing of this Act, make regulations specifying that the Financial Conduct Authority is to require all insurers holding a licence to offer UK motor insurance to publish a report—
(a) on the loss cost savings achieved as a result of the provisions of Part 1 of this Act; and
(b) how, and the extent to which, such savings have been applied to reduce motor insurance premiums.
(4B) The first such report from insurers must cover the period of 12 months beginning with the first day of the month immediately after the commencement of Part 1 of this Act and must be sent to the Financial Conduct Authority by the end of the period of 15 months beginning with the commencement of Part 1 of this Act.
(4C) The Financial Conduct Authority will require further annual reports.
(4D) The Financial Conduct Authority, within the period of 18 months after the commencement of Part 1 of this Act, must make and publish a reasoned assessment of whether it is satisfied that every insurer covered by this section is passing on to customers any loss cost savings made by those insurers arising from Part 1 of this Act.
(4E) Regulations made under subsection (4A) must make provision for the Treasury to grant powers to the Financial Conduct Authority to enforce a requirement for insurers to pass on loss cost savings, achieved as a result of the provisions of Part 1, from insurers to consumers through a reduction in the cost of premiums if, after the period of 30 months following the commencement of this section, the Financial Conduct Authority advises the Treasury that such powers are necessary.”
This amendment would require the Financial Conduct Authority to require insurers to report on the savings they have made as a result of this Bill and the extent to which such savings have been passed on to insurance consumers.
The Chair
With this it will be convenient to discuss the following:
Government new clause 2—Report on Effects of Parts 1 and 2.
New clause 6—Passing on savings made by insurers.
‘(1) Any savings made by any insurer as a result of anything in this Act or associated changes by regulation shall be passed to policyholders by way of reduced premium.
(2) The Financial Conduct Authority shall require all such insurers to submit an annual report detailing the savings they have made and how all those savings have been used to reduce policyholder premiums.
(3) In this section—
“savings” means any reduction in an insurer’s outlays in damages or costs paid in personal injury claims from the time this Act receives Royal Assent;
“insurer” means any insurer holding a licence to offer UK motor insurance;
“policyholder” means the holder of a policy of motor insurance with the insurer;
“premium reduction” means a reduction in the annual cost of a policy of motor insurance taken out by a policyholder.”
This new clause would require insurers to pass on to insurance consumers all savings made as a result of these changes.
Government amendments 5 and 6.
Gloria De Piero
Amendment 17 would require insurers to report on whether savings have been passed on to consumers. New clause 6 would require insurers to pass on all savings as a result of the changes to consumers. Unlike the Government’s over-wordy, over-complicated new clause 2, which I will discuss shortly, amendment 17 and new clause 6 are straightforward. They would require the Financial Conduct Authority to insist that insurers report on the savings they have made as a result of the Bill, and the extent to which such savings have been passed on to policy holders. There are no caveats, no get-outs—it is a straight-line requirement to do the right thing.
The Bill is the latest in a long line of Government handouts to the insurance industry. Back in 2012 in a closed-door meeting at No. 10, the insurers—in return for being able to set the fixed costs in the new fast track that the new Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced—promised to reduce insurance premiums. Since then, insurers have saved more than £11 billion; those are Association of British Insurers figures, not my own. As the Minister must concede, motor insurance premiums are higher now than they were then. So much for those promises.
In the Bill, the Government have, again, swallowed hook, line and sinker the insurers’ promises that they will reduce premiums. History is repeating itself. Insurers are making record profits: Direct Line’s profits in 2017 jumped by 52% to £570 million and Aviva recorded a profit of £1.6 billion. No, that is not all motor related, but in the case of Direct Line it will largely be so.
Meanwhile, insurer CEOs are on multimillion pound packages—Paul Geddes from Direct Line and Mark Wilson from Aviva made more than £4.3 million each in 2017. We are now discussing measures that will save the insurers £1.3 billion a year. Of that, the insurers might—if the wind is blowing in the right direction and none of the ludicrously large get-out clauses in new clause 2 apply—hand across up to 80%. Notably, the cuts to insurance premiums of £35 a year, which insurers are promising now, are much lower than the previous estimates of £50 per year promised in the Prisons and Courts Bill. The Government represent a party that claims to oppose red tape: here is a chance for them to avoid it. Let us have a simple clause that does what it says on the tin.
That leads me to Government new clause 2, which is as full of red tape as it is holes. Perhaps my most fundamental question to the Minister is this: what is wrong with the word “will”? The new clause is peppered with the word “may”. If the Government are genuinely committed to ensuring that savings are passed to consumers, why do they not insist that that happens? Paragraph 3 includes provision for all kinds of ways in which, by regulation, insurers should provide information. Is there any reason why that information should not be made publicly available?
Paragraph 4 is a catalogue of reasons why insurers could wheedle out of being transparent and evade passing on the very substantial savings that the Government’s impact assessment makes clear they will be making. The truth is that all the Government have managed to extract from the insurers, who stand to gain massively from this Bill, is a vague promise that they will pass on savings.
Embarrassed by the lack of hard evidence for a commitment, the Government have tabled this new clause, which is riddled with get-outs and opportunities for insurers to worm their way out of the flimsy commitments they have made. We know—and if the Government are honest, so do they—that insurers will seek to avoid paying the savings that they make back to policy holders. That is what happened when they last made promises in 2012. Given the weakness of the new clause, that is what will happen again.
In truth, the Government have rolled over and the new clause is simply a fig leaf to cover their embarrassment. The answer, I suggest, is to include a simple clause that—and I use a phrase from Conservative Back Benchers on Second Reading—will
“hold the insurance industry’s feet to the fire.”—[Official Report, 4 September 2018; Vol. 646, c. 111.]
Our new clause would mean that any savings made by any insurer as a result of anything in this Act, or associated regulation, will be passed to policy holders by way of reduced premiums. What could be simpler? The Minister may notice that our proposed new clause quite deliberately refers to
“savings made…as a result”
of changes by this regulation.
The Government have refused to include in the Bill the small claims changes that they propose; we will come back to that issue later in our other amendments. What is crucially different between the Government’s new clause 2 and our new clause 6 is that our new clause is not only simpler but mentions the savings that insurers will make from the small claims changes.
In calculating the £1.3 billion in savings that the insurers will make every year, the Government’s impact assessment includes the savings created by the increase in the small claims limit as a result of the so-called wider package of measures. For the Government not to include the savings made from the small claims limit changes in their new clause 2 renders it virtually worthless, and undermines their much-vaunted and fundamental promise that motor insurance premiums will drop by £35 a year.
David Hanson (Delyn) (Lab)
It is a pleasure to serve under your chairmanship today, Sir Henry.
I know it is a long time ago, but I will take the Committee back, if I may, to 25 November 2015, when George Osborne, as he is now known, was the Member for Tatton and serving as Chancellor of the Exchequer. At that time, he said—it was recorded in Hansard:
“We will bring forward reforms to the compensation culture around minor motor accident injuries, which will remove… £l billion from the cost of providing motor insurance.”
And here is the crucial bit:
“We expect the industry to pass on this saving, so that motorists see an average saving of £40 to £50 per year off their insurance bills.”—[Official Report, 25 November 2015; Vol. 602, c. 1367.]
When this Bill was introduced to the House of Lords and subsequently to this place, the Ministry of Justice’s impact assessment indicated at first that the figure would now be £40, not £50—not between £40 and £50, but £40. However, when the general election was fought last year, the figure had miraculously gone from £40 to £35.
In October last year, one of the insurance companies that the Minister in another place, Lord Keen of Elie, has been fond of quoting—Liverpool Victoria or LV=—spoke. Caroline Johnson, director of third party and technical claims at LV=, spoke at the Motor Accident Solicitors Society’s annual conference in Sheffield, which must have been an important place to say this; it was not just said off the cuff, but at the conference. She said, “The £35 may or may not be achievable”.
I ask my first question today in support of the new clause tabled by my hon. Friend the Member for Ashfield and to start the testing of the Minister’s new clause. In his response, can the Minister give the latest Government assessment of what the £50/£40/£35/possibly-not-achievable £35 is as of today? We are expected to take on trust the figures that he has given.
There is no doubt that the insurance companies will save £1.3 billion a year. That figure has been accepted by the Government and the insurance companies, and I suspect that it will be cited again—not only by my hon. Friend the Member for Ashfield, but by others who will say that it is the saving, the prize, that the Government seek. My concern is not the insurance companies and the £1.3 billion; my concern is how much, if there are savings to be made in the areas we are concerned about, of that £1.3 billion will land in the pockets of those individuals who would then have lower premiums as a result.
I am very pleased to sit on the Justice Committee, just as I was very pleased to sit coterminously this morning with this Committee; I have to say that was very interesting. The Justice Committee carried out an investigation into this area and came to a conclusion as a whole—it was not just the Labour members of that Committee. It is chaired by the hon. Member for Bromley and Chislehurst (Robert Neill), who is a Conservative; it has a Conservative majority; and it has unanimous support for the recommendations it made in this very area. The Committee said:
“As obtaining insurance involves a commercial transaction with a private sector body...there is little that the Government can do to enforce lower premium rates without significant change to present policies.”
My question to the Minister is about his proposed new clause 2. There is something I cannot find in it—it may be hidden in there within the legalese—but, if it is, could he please put it in simple language for the Committee? What happens if this investigation proves that the insurance companies have made a saving of anything between nothing and £1.3 billion? What steps will the Government take at that stage to enforce their policy objective of ensuring that £50/£40/£35/possibly £35 goes into the pockets of individuals who pay the insurance companies?
Gloria De Piero
Does the Minister accept that, since the changes made in 2012, insurance companies have saved £11 billion?
Rory Stewart
I am not in a position to accept or reject that figure—I am not familiar with that figure and I am not clear how it has been arrived at. I am happy to look at that in more detail before Report stage of the Bill.
Rory Stewart
The premiums dropping will be assessed and published in the normal fashion. The requirement in new clause 2 is much more complex. The new clause requires a prodigious amount of information about all forms of income streams, the number of claims and the number of premium holders so the Treasury and the Financial Conduct Authority can develop a sophisticated and detailed picture in order accurately to address the concerns of Opposition Members that, over the period—particularly the three-year period that will be affected by the introduction of the Bill—insurance companies will not pass on savings to consumers. We believe they will, which is why we are comfortable pushing for this unprecedented step of gathering that information to demonstrate that the market works.
On that basis, I politely request that the Opposition withdraw their amendments and support Government new clause 2, which after all was brought together by Opposition Members of the House of Lords and others, and which achieves exactly the objectives that the Opposition have set out.
Gloria De Piero
The Minister talked a lot about where the Committee disagrees, but there are things we can all accept as fact—the facts that insurance profits are up massively and that these changes will save insurance companies £1.3 billion, for instance—and we all want premiums to come down. We believe only amendment 17 and new clause 6 will deliver that, so we seek to divide the Committee.
Question put, That the amendment be made.
Gloria De Piero
My learned and experienced colleagues have spoken in great detail about our issues with the amendments, so I do not anticipate making a long speech. I wholeheartedly concur with the comments that my hon. Friend the Member for Lewisham West and Penge made about the importance of periodical payment orders and a proper, timely review of the personal injury discount rate. As everybody who has contributed has said, we are talking about the most seriously injured. They cannot and must not be let down by our playing politics or by insurers seeking to save money.
In amendments 22 and 23, we say that, if an expert panel is appropriate for subsequent reviews, why should not expert opinion from the panel be appropriate for the initial determination of the rate of return? That is why we will press them to a Division.
Ellie Reeves
I thank the Minister for his response to the points that I made. For the reasons that I and my hon. Friend the Member for Enfield, Southgate set out, I want to press amendment 24 and new clause 5 to a Division.
Question put, That the amendment be made.
Gloria De Piero
I beg to move, That the clause be read a Second time.
New clause 1 deals with one of the most important effects of this package of measures. It says that the whiplash small claims limit can increase only in line with inflation based on the consumer prices index. It specifies that the limit can increase only when inflation has increased the existing rate by £500 since it was last set.
The Government have been disingenuous in trying to sneak through these changes to the small claims track limit by using delegated legislation, which restricts the proper scrutiny that such significant changes deserve. With the new clause, we ask the Government to do the right thing and to put it on the face of the Bill, enshrining the terms that a plethora of experts agree on: the use of CPI over the retail prices index when it, and using 1999 as a start date for any recalculation of the limit for a small claims track.
The White Book that I showed the Minister shows that there was a 20% increase in the small claims limit in 1999 when special damages were removed from the calculation of the limit. Lord Justice Jackson, in his “Review of Civil Litigation Costs: Final Report” said that the only reason to increase the personal injury small claims limit would be to
“reflect inflation since 1999. As series of small rises in the limit would be confusing for practitioners and judges alike.”
He made it crystal clear that the limit should remain at £1,000 until inflation warrants an increase to £1,500.
The Government admitted to me this morning that there is a difference of opinion in their own ranks about which of these years should be the benchmark. We say again that they must listen to the Lord Justice Jackson and the Justice Committee chaired by one of their own, the hon. Member for Bromley and Chislehurst (Robert Neill), who agrees with him. We should state on the face of the Bill that 1999 must be the start date for any recalculation of the small claims limit, not 1991. The Government accepted all the key recommendations in the Jackson report save the recommendation that there should be an increase in the small claims limit to £1,500 only when inflation justifies it.
To turn to another aspect—the Government have admitted that it has caused a dispute among Ministers—I want to make the case, as I have done before, that CPI and not the RPI is the correct measure to apply for inflation. It seems that the Government use RPI when it suits and use CPI when it suits. CPI is what we use for the pensions and benefits paid to injured workers while they are pursuing justice for that injury through the claim. Even the Chief Secretary to the Treasury agrees with me. When asked at the House of Lords Economic Affairs Committee whether she agreed that RPI was an inadequate measure, she said:
“We certainly agree that it is not the preferred measure of inflation. CPI is a much better measure of inflation… we agree that it is not the preferred method, and we are seeking to move away from RPI”.
Why are we moving towards it here? The Government say they wish to apply RPI to the small claims limit because RPI is applied to updating damages—the same damages that they are taking an axe to with the new tariff.
Perhaps some in the Conservative party are persuaded, like me, that CPI is the best option, because of yet another expert who has lined up to say so. On 30 January 2018, the Governor of the Bank of England, Mark Carney, said:
“At the moment, 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 that we need to enshrine CPI as the key measure on the face of the Bill. The amount of £1,000 from 1999 would now be worth either £1,440 if CPI is applied, or £1,620 if RPI is applied. Lord Jackson said that it should not go up to £2,000, as the Government suggests, until inflation warrants it.
I trust the Minister will not be as dismissive as Lord Keen was when he said in his evidence to the Justice Committee:
“We do not feel that there is a material difference between setting it at £1,700 today and seeing it drop behind inflation next year, and setting it at £2,000 without the need to review it again for a number of years.”
Try telling the nurse, the caretaker or the bus driver that there is no material difference between £1,700 and £2,000. For those on real wages, that has a real impact.
Rory Stewart
Relatively rapidly, I would say that we have five types of disagreement with the amendments. Broadly speaking, those are political, philosophical, economic, financial and constitutional. The political disagreement is that the amendment would go to the heart of the Bill. The entire concept of the Bill is to try to effect a change in the current practice and process around whiplash claims by moving the claim limit to £5,000. That is part of the entire package—the tariffs and small claims limits are related to that.
Philosophically and fundamentally, we are not arguing that the shift to £5,000 is fundamentally a question of inflation. There are many other reasons why the small claims limit has been moved in the past. Indeed, in relation to some types of claim, as you will be aware Sir Henry, as one of our learned friends, some of the claims have been moved to £10,000, which goes a long way beyond inflation.
Largely, the driver of whether or not something is on a small claims track is to do with the nature of the claim, not the nature of inflation. However, if we worked on the narrow question of inflation, the Judicial College guidelines are currently on RPI as opposed to CPI. I respect the arguments that the hon. Member for Ashfield made but that is not the fundamental argument the Government are making.
The amendment would have curious financial implications. It would create a strange syncopated rhythm, whereby movements in CPI are not necessarily reflected in the triennial review except in £500 increments which, over time, mathematically will lead to peculiar results.
The fundamental reason we oppose the amendment is the final argument I mentioned, which is constitutional. This is business for the Civil Procedure Rule Committee, as it always has been, and it is not suitable to put in the Bill. On the basis of those political, philosophical, economic, financial and constitutional arguments, I respectfully request that the amendments be withdrawn.
The Chair
With this it will be convenient to discuss new clause 8—Restriction on increase in small claims limit for relevant personal injuries suffered by people during the course of employment—
‘(1) In this section, the “PI small claims limit” refers to the maximum value (currently £1,000) of a claim for damages for personal injuries, specifically general damages, for which, in accordance with Civil Procedure Rules, the small claims track is the normal track.
(2) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims to an amount above £1,000 for the first time unless—
(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £1,500, and
(b) the rules increase the PI small claims limit to no more than £1,500.
(3) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims on any subsequent occasion unless—
(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £500 greater than on the day on which the rules affecting the previous increase were made, and
(b) the rules increase the PI small claims limit by no more than £500.
(4) In this section—
“CPI” means the all items consumer prices index published by the Statistics Board;
“relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder suffered during the course of employment which is caused as described in paragraphs (b) and (c) of section 1(4) (negligence while using a motor vehicle on a road, etc.);
“relevant injury claim” means a claim for personal injury that consists only of, or so much of a claim for personal injury as consists of, a claim for damages for pain, suffering and loss of amenity caused by a relevant injury, and which is not a claim for an injury in respect of which a tariff amount is for the time being prescribed under section 2;
“general damages” shall mean damages for pain, suffering and loss of amenity.’
This new clause would limit increases in the small claims track limit in relation to people who have suffered a whiplash injury during the course of their employment to inflationary rises in increments of £500 only.
Gloria De Piero
The Government have refused to allow the small claims changes, which will have a fundamental impact on access to justice for hundreds and thousands of injured people every year, into the Bill. New clause 7 is designed to ensure that vulnerable road users are exempted as the Minister has promised. New clause 8 would do little more than reflect the recommendations of Lord Justice Jackson in his civil justice review. The Minister agreed this morning that there had been a change to the small claims limit in 1999. New clause 8 says that 1999 is the date from which any change to the small claims limit should be calculated and that the increase should be by no more than £500 at any one time. As I have said, that reflects the recommendations of Lord Justice Jackson.
There is a difference between us on the appropriate level of inflation. We say CPI—the consumer prices index. There is absolute logic in that because that is the inflation rate applied by the Government to benefits paid to injured people. It is also, of course, the rate that the Governor of the Bank of England recommends.
Rory Stewart
Given that we are coming towards the end of the proceedings, I again pay tribute to right hon. and hon. Members on both sides of the Committee for the quality of debate. It has been quite testing personally: a lot of very learned friends have asked a lot of fundamental questions, ranging from inflation rates to the good challenges from my friend the right hon. Member for Delyn (David Hanson), who keeps me on my toes. I thank them very much for their various contributions.
With the final group of amendments, we come to questions that relate to some of the debates that we have had already, in different forms. This in effect is a subset of the arguments made on new clause 1. As right hon. and hon. Members will remember, new clause 1 involved an argument that the reductions should be made in relation to all personal injury claims. These proposals take the same arguments and apply them to two subsets of people who are injured: vulnerable road users and people injured in the course of employment. On both those things, there are some differences between us, again, on the correct level at which to set the rate, but there are also some important concessions that are worth bearing in mind. They were made in the House of Lords and in the subsequent process.
In relation, first, to people injured in the course of employment, personal injury claims that are not as a result of whiplash, we have listened very carefully to right hon. and hon. Members. They will remember that in the initial consultations there were suggestions about raising the limit to £10,000 or £5,000. The agreement has been that for non-whiplash-related injuries, it is kept at £2,000.
There is some discussion about whether it is correct to see that in terms of CPI or RPI—the retail prices index—but broadly speaking, it is not very significantly different from the rates that were set in the 1990s when inflation was applied, although there is some disagreement between the two sides of the House, to the extent of a few hundred pounds, on the extent of headroom put on top of inflation. There could be a broader argument, which was raised earlier, about the fundamental principle that compensation should be paid for the injury rather than on the basis of why somebody was present on the scene, whether in the course of employment or another activity. However, that goes beyond the scope of the amendment.
The real concession has been made in relation to vulnerable road users, which I hope hon. Members on both sides of the House will welcome. We listened carefully to representations made primarily not by people who own horses—although I remind hon. Members that there are more than a million horses in the United Kingdom, so it is not quite as much of a minority pursuit as some might like—but by cyclists, who led a strong campaign arguing that they are particularly vulnerable on the roads. They are: they are not encased in a sheet of metal. We accept that the same argument also applies in spades to pedestrians—as a proud pedestrian, I feel that very strongly—and to people on motorcycles, who are not encased in metal either.
We are delighted to confirm that vulnerable road users will be excluded in respect of the small claims limit and the Bill. On that basis, with many thanks to everybody for their prodigious and learned contributions, I politely ask that the amendment be withdrawn.
Gloria De Piero
I will disquiet the Minister one more time and press the new clause to a Division.
Question put, That the clause be read a Second time.
Victims Strategy
Gloria De Piero Excerpts(5 years, 8 months ago)
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Gloria De Piero (Ashfield) (Lab)
I thank the Minister for advance sight of his statement.
Any progress to help victims is welcome, but the only thing that will cut the mustard when it comes to strengthening victims’ rights is primary legislation and for that we are still waiting. We are still waiting for the delivery of the promise made by the Tories in 2015 that they would enshrine key entitlements for victims and witnesses in primary legislation. They mysteriously stopped making specific references to passing primary legislation just a year later. When Labour repeatedly pressed them on whether they still planned to do so, we received a series of fudges, talking about strategies and non-legislative options.
It has taken three years for the Government to produce the strategy that has finally been unveiled today. Why so many mentions of consultation—“consult” on a revised victims’ code, “consult” on a victims’ law, and “consult” on the establishment of an independent public advocate? We have consulted all this to death over the past three years, and have heard loud and clear from all quarters that these things are vital and urgently needed. Labour has campaigned on this for years. Have we not had long enough to talk about this? I would like to hear from the Minister just how much longer we will have to wait and why we have to wait.
We welcome the potential for improving court environments with victim-friendly waiting areas and an emphasis on accessibility for the most vulnerable, but with more than 230 court closures since 2010 many vulnerable people cannot get to the court anyway. Victims having to travel for hours on several different buses will hardly have the calmest start to their court visit, even if they have a more suitable waiting area when they do arrive.
There are measures that aim to provide more support for victims of major disasters such as Grenfell; the Minister alluded to that and we know it is currently lacking. Judicial review is a key tool for victims of tragedies to be able to challenge unjust or unlawful decisions by the state or other public bodies. Labour has committed to restoring legal aid for judicial review. Will the Government now do likewise?
The Government say that an independent public advocate would help to guide bereaved families through any investigative process after a disaster
“so their voices can be heard at inquest.”
However, that is misleading. Although the title includes the term “advocate”, the official will not represent bereaved families at inquiries or inquests. When will the Minister provide advocates to help victims to navigate a complex and intimidating system and lawyers for bereaved families at inquests? The document released today concedes that there is “some potential for confusion”. That is not good enough for victims who are seeking clarity.
Let us be very clear: from a victim’s point of view, our justice system is not fit for purpose. For too long, victims have felt like an afterthought in the criminal justice process. The Government can produce all the strategy documents in the world but victims need action now.
There is no indication of how the Government intend to fund some of the positive measures in the strategy, measures that Labour has been calling for—raising the amount for survivors and victims of sexual violence and abuse from £31million to £39 million; £8 million for children who witness domestic abuse; and £18.8 million on domestic abuse accommodation services in England. That is all crucial, but will the Minister tell us where the money will come from? Victims may well not have confidence that anything in these measures is being properly funded, given the Tories’ failure to fund the female offenders strategy, which their own advisers say was underfunded by at least £15 million.
Just today, we heard the president of the Police Superintendents’ Association say that policing will be in a “perpetual state of crisis” if the Government do not lay out a long-term vision for the stretched service. The entire justice system is crippled. It is time for the Tories to do as they promised and speed up the urgent work of creating a robust victims’ law. Victims cannot wait for another year.
Edward Argar
I welcome much of the content and tone of the hon. Lady’s comments. I am sure she will be extremely pleased to see the reaffirmed commitment to the consultation on the legislation to underpin this. She said that it has taken three years for the Government to produce a strategy. Well, I have been the Minister for three months and I hope that she is encouraged that I have published the strategy, in which that is clearly set out.
The hon. Lady is right that the victims code is very important but we do need the ability for victims to enforce and monitor that and the legislation underpinning it. We are consulting on that, which is the right thing to do. She asked about timescales. I pay tribute to her colleague, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), for his work in this area. He and I have discussed this on many occasions.
The hon. Lady asked when this would happen. As I set out, we will be consulting on the independent public advocate from today. So there is action, which will be followed by consideration of that and steps forward. Consultation will follow on the criminal injuries compensation scheme and the consultation on the revised victims code and the necessary legislation underpinning it will come in 2019. Although I understand that the hon. Lady may be a little frustrated by consultations, I am very clear that what we are doing is hugely important and it is right that we consult widely, particularly with the victims of crime and others, who know best what will work for them in this context. Therefore, although I take her point, I make no apologies for the consultation; it is important that we get this absolutely right. It is also right that we ensure that people have access to justice, and this Government have a strong track record of ensuring continued access to justice.
The hon. Lady highlighted the money and the financing. As she will know, already, taken together, around £200 million is spent across Government and different agencies on supporting victims of crime. We seek with this strategy to ensure that that money is better spent, and better joined up in the way it is spent, to deliver the outcomes that victims of crime want and that this strategy is designed to deliver. This document is a very clear statement of intent by this Government, delivering on a clear commitment from this Government to support victims of crime.
Civil Liability Bill [Lords]
Gloria De Piero ExcerptsTuesday 4th September 2018
(5 years, 8 months ago)
Commons ChamberRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 110-I Marshalled list for Third Reading (PDF, 56KB) - (26 Jun 2018)
Gloria De Piero (Ashfield) (Lab)
This has been an interesting and wide-ranging debate. I shall try to summarise many of the points that have been made.
The right hon. Member for Chipping Barnet (Theresa Villiers) and the hon. Member for Bexhill and Battle (Huw Merriman) talked about the need to tackle the high premiums applying to young drivers. My hon. Friend the Member for Cardiff Central (Jo Stevens) spoke about her personal experience of representing low-paid workers who would be hurt by the Bill. The hon. Members for South Norfolk (Mr Bacon), for North Warwickshire (Craig Tracey) and for Stoke-on-Trent South (Jack Brereton) focused on insurance fraud and what they perceived to be a compensation culture, and expressed their hope that the Bill would reduce premiums.
My hon. Friends the Members for Jarrow (Mr Hepburn) and for Hammersmith (Andy Slaughter) spoke of a pattern of behaviour on the Government’s part in the last eight years, involving attacks on working people and their access to justice. In an interesting speech, the hon. Member for South Leicestershire (Alberto Costa) expressed his concern about a rise in premiums despite a reduction in the number of claims. My hon. Friend the Member for Lewisham West and Penge (Ellie Reeves) made an excellent speech in which she described a legal system in disrepair and said that the Bill would have a disproportionate effect on innocent victims’ access to justice. My hon. Friend the Member for Cambridge (Daniel Zeichner) spoke of vulnerable road users, and his worries about injured workers’ representation. The hon. Member for Croydon South (Chris Philp) described his experience of weekly phone calls following his accident, and Members on both sides of the House condemned such calls.
My hon. Friend the Member for Harrow West (Gareth Thomas) talked about the attacks on working people’s representation that would result from the Bill, but also asked whether it was time to consider a legal cap on insurance premiums. The hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee, called on the House to hold the feet of the insurance industry to the fire when it came to reducing premiums.
My hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury) spoke about cycling, and about how pedestrians, motorcyclists and cyclists would be removed from the scope of the Bill, as indicated by the Secretary of State. The hon. Members for Spelthorne (Kwasi Kwarteng) and for Walsall North (Eddie Hughes) talked about international comparisons on whiplash, and asked why there were fewer instances in other countries. Like so many other Labour Members, my hon. Friends the Members for Enfield, Southgate (Bambos Charalambous) and for High Peak (Ruth George) focused on the attack on injured people, and the bonanza for the insurance companies.
The changes proposed in the Bill will leave police officers, paramedics and firefighters who are injured on the roads without legal support and subject to fixed-tariff compensation, which will potentially reduce the damages that they can receive. The small-claims changes hidden behind the Bill will leave workers like the supermarket assistant, who was left unable to work for weeks after suffering a foot injury while moving stock, ineligible for legal support. Why? Because she was awarded £1,705. As a result of the package of changes associated with the Bill, workers like her, with claims worth less than £2,000, will either have to fight their cases alone or pay for lawyers with money that was meant to cover their injuries and losses.
Unison says that nearly two thirds of the people whom it represents—workers injured through no fault of their own, when there is no whiplash and no suggestion of fraud—would not seek justice without legal representation. The general secretary of USDAW, representing nearly half a million workers, says the changes
“will have a knock-on effect for workplace health and safety, as less scrupulous employers let standards slip because they know they’re unlikely to face the consequences in court.”
There is no suggestion of fraud or of increased numbers of claims by people injured at work. The Government should exclude such claims from this package of measures and from any small claims increase. We all want to stop insurance fraud, but a whopping 400% increase in the small claims limit for all road traffic accident claims means all injured road users—HGV drivers, firefighters, parents driving their kids to school—will be treated like fraudsters claiming falsely for whiplash, and be left with reduced tariff compensation and no legal help. Why?
The justice reforms that the Government passed in 2012 have saved insurers an eye-watering £11 billion, yet they want more. Back then insurers promised to reduce premiums, yet they are higher now than ever. Despite that, the Government have again swallowed the insurers’ promises to reduce premiums hook, line and sinker. This Bill saves insurers another £1.3 billion a year. Again, the rich get richer, the poor poorer. There appears to be a collective amnesia from this Government about the Prime Minister’s promise in 2016, so let me remind the House:
“The Government I lead will be driven not by the interests of the privileged few, but by yours…When we pass new laws, we’ll listen not to the mighty but to you.”
Yet here we are, two years later, with a policy created for the mighty: profitable insurance companies call the shots; working people pay the price.
If the Government will not listen to us and will not listen to the trade unions, will they listen to a Justice Committee headed by a Conservative Member or to experts like Lord Justice Jackson? In his report, approved by the Justice Committee, Jackson proposed that the limit should stay at £1,000 until “inflation warrants” an increase to £1,500. Jackson goes on to say that it should not be increased at all until inflation, from 1999, gets it to £1,500. The Justice Committee sends the same message; it could not have sent a clearer signal to the Government to stop this headlong rush to undermine access to justice.
Labour will be abstaining today in the hope that the Government will think again before the Committee stage. Without some key changes, we will vote against the Bill’s Third Reading. We sincerely hope, for the 99% of injured people even the insurers admit are honest, that they reconsider.
Domestic Abuse Victims and Family Courts
Gloria De Piero Excerpts(5 years, 9 months ago)
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Gloria De Piero (Ashfield) (Lab)
It is a pleasure to serve under your chairship, Ms Ryan, and I thank my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) for securing this debate. Since entering Parliament, she has campaigned tirelessly on behalf of women in her constituency and across the country, and she has pushed domestic violence up the Government’s agenda. I am in awe of her work.
Even today, domestic violence remains one of the most under-reported crimes, and in Britain one woman is killed every three days by a partner or ex-partner. According to the Office for National Statistics, four in five victims of partner abuse did not report the incident to the police last year. Although some progress has been made in recent years, victims still talk of battling to be believed by a system designed to protect the perpetrator. Even worse, the process of reporting abuse can be re-traumatising in itself. Victims talk of having to re-live the experience over and over again—first with the police and then in court, all the while dealing with the fear of reprisal from the perpetrator.
If we want to eradicate domestic violence from this country and have a truly accessible justice system, we must make that system more open and supportive to survivors of domestic violence. Today, however, we are a long way from that goal. The Government’s removal of legal aid for family law cases in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 had a catastrophic impact on access to justice for victims of domestic violence. Between 2012 and 2017, applications for civil legal aid in cases involving domestic violence fell by 20%. The imposition of a five-year limit on evidence and the restriction of evidence forms meant that 40% of female survivors were unable to meet the new requirements and were left without access to legal aid. According to Women’s Aid, the result was that victims were either prevented from fighting their cases or forced to represent themselves in person and risk being cross-examined by their partners.
In December, I uncovered figures showing that the number of domestic violence victims representing themselves in the family courts had increased by 147% since LASPO’s introduction. Recent figures from the Ministry of Justice show that the number of people without representation in domestic violence proceedings reached record levels in 2017. Imagine facing the decision between representing yourself in court, without legal support, against an abusive partner, and risking their obtaining custody of your children.
I pay tribute to the organisations, such as the charity Rights of Women and the Legal Aid Practitioners Group, that ensured that last year the Government finally published reforms to the evidence requirements for accessing the DV gateway for civil legal aid. Those changes were long overdue. However, we have yet to see a significant impact. Just 56 applications for legal aid in other family proceedings such as custody cases were made to the DV gateway in 2017-18; the figure was down from 83 in 2013-14. Can the Minister tell us what steps the Government are taking to ensure that victims of domestic violence are aware of the changes to the evidence requirements for accessing legal aid in the family courts?
Legal aid is available to victims of domestic violence on paper, but in reality the wholesale removal of family law cases from its scope means that people are now hard-pressed to find someone to represent them. Recent figures published by the Ministry of Justice show that the number of family law cases started with the assistance of legal aid has fallen by 84% since LASPO’s introduction. The figures also show that the number of legal aid providers giving support in family law cases has dropped by one third, with legal aid deserts opening up in parts of the country. The number of providers has fallen by 22% in London, but by 45% in the east of England and Wales. The devastating truth is that access to justice is simply not available for many victims up and down the country, because of this Government’s changes to legal aid.
For victims who do make it to the family courts, the ordeal does not stop there. Survivors frequently report being re-traumatised in the family court room, with the perpetrator allowed to continue their abuse by manipulating the court process. Women are still routinely cross-examined in front of or even by the perpetrator in what can be a deeply traumatising process; and outside the courtroom, survivors can come face to face with the perpetrator.
Opposition Members welcome the Government’s announcement of a new domestic abuse law, including the introduction of special protection measures for victims of domestic abuse. However, those protections must be available to victims in the family courts and not just the criminal courts.
A survey by Women’s Aid of more than 100 survivors who had been through the family courts showed that more than half had no access to special measures, and more than one third were verbally or physically abused by their former partner, in the family courts. Measures such as video links, screens and separate entrances, and exit times can be life saving; they prevent victims from being followed home by their abuser or confronted outside the courtroom. I understand that the Government have just finished consulting on the domestic abuse Bill. However, they have no reason to leave us in any doubt about where they stand on this issue. Can the Minister confirm today that family courts will be included in proposals to introduce special court measures for victims of domestic abuse, and will the Government set a deadline for when that right will become fully accessible to every victim of domestic abuse?
Of course, to support victims of domestic violence to have real access to justice, we have to do more than ensure that the courts are acting as a safe space. For survivors to come forward and access the justice process, they need security outside the court as well. We are extremely concerned about the proposals to remove refuges from the welfare system. The Government’s plans to remove housing benefit as a means to pay for refuge accommodation would remove half of refuge funding overnight. Currently, more than 10% of these women are forced to sleep rough because a place in a refuge is not available. We are calling on the Government to take those dangerous proposals off the table.
Our justice system is designed to protect the perpetrator, not the victim. Important checks and balances ensure that a person is presumed innocent until proven guilty, but they also routinely leave victims feeling like an afterthought in the process or, worse, like the person on trial. The issues raised today demonstrate the urgent need for reforms. Will the Minister commit to a wholesale review of the culture, practice and outcomes of the family courts in child contact cases where there are allegations of domestic abuse?
More generally, Labour has been pushing since 2015 for a stand-alone victims law that would enshrine the rights of victims in primary legislation. We need a victims law, rather than piecemeal reform, if we are to transform the experience of victims in the criminal justice process. More than three years ago, the Government agreed, and pledged, to introduce a victims law, but victims are still waiting. Now, instead of legislation, Ministers speak of a victims strategy, so can this Minister confirm when the victims strategy will be published? Do the Government still plan to introduce a stand-alone victims law as they promised?
Today, we have heard passionate speeches from hon. Members on both sides of the House on the need to ensure that victims of domestic violence receive the protection, support and representation that they need in the family courts. Let me now use my position to pay my respects to Claire, about whom my hon. Friend the Member for Penistone and Stocksbridge (Angela Smith) spoke so heartbreakingly and movingly. I hope that the Minister has listened to Claire’s story and the other stories raised today and realises that significant reform is urgently needed.
Joan Ryan (in the Chair)
Could I ask the Minister to finish her speech a couple of minutes before our time is up to allow the mover of the motion to wind up the debate?
Oral Answers to Questions
Gloria De Piero Excerpts(5 years, 10 months ago)
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Rory Stewart
The important thing to understand about the small claims process is that the shift from £1,000 to £2,000 is simply to ensure that the original 1991 legislation keeps up with inflation—the RPI increase—in line with the Judicial College guidelines. This is not about people with catastrophic, life-changing injuries, but about people with injuries below the £2,000 level. We are making sure that the small claims process is fair, transparent and easy for the public to access without expensive lawyers.
Gloria De Piero (Ashfield) (Lab)
In its report on the small claims limit increases, the Justice Committee noted the
“compelling evidence of the obstacles that would be faced”,
and concluded that the changes would
“represent an unacceptable barrier to access to justice.”
Will the Minister listen and think again before pursuing another attack on workers?
Rory Stewart
I am always prepared to meet the hon. Lady and to listen. I emphasise again that this is simply a change in line with RPI. The small claims limit was set at £1,000 in 1991. The proposal is now to move it to £2,000, which is simply in line with the retail prices index, so that we have the same fair policy today that we had in 1991.
Prisons (Interference with Wireless Telegraphy) Bill
Gloria De Piero ExcerptsFriday 6th July 2018
(5 years, 10 months ago)
Commons ChamberRead Full debate Prisons (Interference with Wireless Telegraphy) Act 2018 View all Prisons (Interference with Wireless Telegraphy) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts
Gloria De Piero (Ashfield) (Lab)
This welcome Bill goes some way to addressing the issues surrounding mobile phones in prison, and as my hon. Friend the Member for West Ham (Lyn Brown) said, evidence has shown time and again that mobile phones have been smuggled into prison for use by inmates, often to enable them to engage in further illegal activity. They are used illicitly to order drugs, harass victims, and organise crime, both inside and outside the prison. The use of phones for such activities is completely unacceptable, but figures indicate that the number of phones conveyed into prisons for use by inmates is increasing.
The hon. Member for Lewes (Maria Caulfield) gave some figures, and I shall present some others that show a similar trend. In 2013, there were around 7,500 reported incidences of mobile phones and SIM cards being found in prison, but by 2015 that figure had increased to nearly 17,000. Mobile phone use in prisons is a problem that needs tackling, and the Bill is a welcome step forward. I might question whether Back Benchers should be driving forward legislation to tackle illegal prison activity, rather than the Government, but nevertheless the ability to interfere with wireless telegraphy and to disrupt mobile phone use in a designated, specified area could have a significant impact in reducing the use of mobile phones and, subsequently, any further illegal activity through their use.
Although the Bill goes some way to addressing organised violence and drugs in prisons, it cannot be seen as a panacea to end the problems in our prisons. Violence, drugs, and further crime are not helped by the Government’s treatment of our prisons system, which has produced an environment that allows them to flourish. The Government’s decision to slash prison budgets, axe prison officers and neglect our prisons has led to overcrowding and violence. With nearly 4,000 fewer frontline prison officers than in 2010, searches are increasingly difficult and no amount of action on wireless telegraphy can replace the eyes and ears of staff on the ground. Without those staff and proper action to address overcrowding, mobile phones will continue to find a way in, drugs will carry on being smuggled through, and prison violence may continue.
Housing and Access to Legal Aid
Gloria De Piero Excerpts(5 years, 12 months ago)
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Gloria De Piero (Ashfield) (Lab)
It is a pleasure to serve under your chairship, Mrs Main. I congratulate my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury) on securing this important debate. I confess that I feel a heavy sense of déjà vu standing opposite the Minister once again: it is another week and yet another debate on the devastating impact of the Government’s cuts to legal aid. This time the issue is housing.
Most of us expect the right to a decent home that does not suck in two thirds of our income each month, that does not give us health problems and that does not endanger our safety. For too many people across the country, however, that expectation is simply not a reality anymore. We have a housing crisis in this country. Home ownership among young adults has collapsed. The Institute for Fiscal Studies reports that the chance of someone owning their own home has halved over the past 20 years. The number of council houses is at a record low. The Government have overseen the lowest rate of house building since the 1920s, which pushes more and more people to spend years in the private sector, but they have not made it safer or more secure to be a tenant; they have made it much harder.
Because of the cuts in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it is now more difficult to challenge a rogue landlord, to obtain compensation for damages to health and property because of poor living conditions, or to access basic advice that could prevent someone from losing their home down the line. New figures that we have uncovered show that 4,815 fewer people a year are being granted civil legal aid for representation on housing matters, including faulty repairs and poor maintenance of a property by landlords, as well as more serious issues such as possession of a home or where a tenant’s health or welfare is at serious risk. That is a drop of one third over the past five years—close to 5,000 more people a year are being denied the right to challenge poor living conditions and unfair treatment. Does the Minister recognise that there is a crisis in access to legal aid for housing issues?
The Government have set the bar so high for legal aid that housing lawyers warn that it is
“very difficult for a tenant to obtain funding in order to bring a claim against their landlord.”
Legal aid is available in disrepair cases only where it can be proven that there is
“a serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family”.
That bar means that a persistent cough that is likely being caused by mould or damp, or risk of accidental injury because of shoddy work, is often not enough to qualify for legal aid. If someone develops serious health problems as a result of poor living conditions that landlords refuse to sort out, the Government have taken away the legal aid to obtain compensation.
Ministers might argue that for the most serious cases, legal aid may still be available through the exceptional case funding scheme, but only 13 cases have been approved for exceptional funding since the legal aid changes were introduced—out of 211 applications. The truth is that people are simply being denied access to justice and have nowhere else to turn. It is the same old story of a two-tiered system; justice in this country is available only to those who have the money to pay for it.
That is not just the case for taking a claim to court. Many housing issues can and should be resolved at an earlier stage by people getting the right advice about their rights, but the Government’s cuts to housing legal aid included the removal of early legal advice. The effect is that tenants must now wait for a minor damp problem to have a serious effect on their family’s health before they can challenge a bad landlord and force repairs to be made. Rather than resolving a dispute with a landlord early with good legal advice, tenants face the point of being made homeless before they have access to legal aid. Since the introduction of LASPO, the number of cases of legal advice for housing has more than halved. It is not just housing cases; overall, the total number of legal advice cases has fallen by three quarters, which means that more than 400,000 fewer people are getting housing advice. That is not just bad for tenants; it is short-sighted policy making that will ultimately cost the country more.
The vice-president of the Law Society, Christina Blacklaws, has said:
“The current situation is unsustainable. If early advice was available to those who need it, issues could be resolved before they worsen and become more costly for the individual – and the public purse.”
The charity Citizens Advice estimates that every £1 of legal aid spent on housing advice has the potential to save £2.34 to the public purse. Lack of support to resolve a case early means potentially far more costly court proceedings down the line.
It is not just by helping to avoid court that early advice benefits the public purse. Social problems such as homelessness and debt, and health problems that come with not sorting out housing issues early, are a ticking time bomb for the Government. At the end of last year the Law Society published research that found that a quarter of those who received early advice resolved their problems within three to four months, compared with an average of nine months for those who did not receive early advice. Those costs must be factored into any assessment of the savings realised from cuts to legal aid. Will the Government, as part of their review of legal aid, publish their own cost-benefit analysis of the wider impact of reducing early legal advice?
Labour Members agree with the President of the Supreme Court, Lady Justice Hale, who described the Government’s legal aid reforms as “a false economy”. That is why we have announced that a Labour Government will restore early legal advice in housing cases to prevent small problems escalating into big ones. The impact of the Government’s cuts is not only being felt in cases where legal aid has been removed. Even in cases where individuals should still be entitled to legal aid, such as risk of homelessness, tenants are finding that support is not available because lawyers in their area have had to close up shop.
Hon. Members have already referred to the legal advice deserts, so I will not repeat those findings, but I will say that figures uncovered by the Bach commission on legal aid confirmed that, finding that the number of civil legal aid providers specialising in housing has declined by a third, from 681 to 449. What urgent action are the Government taking to reverse those trends to ensure that no area is left without a single legal advice provider?
The Government’s changes have made it simply not possible to operate for such a narrow category of cases, and the impact has been devastating. We are living through a time of high repossessions of homes and homelessness has risen by 78% since 2011. Yet at the same time there has been a steep decline in the number of challenges brought against eviction, according to figures from the Legal Action Group. Charities such as Shelter have warned that thousands of people a year are being made homeless because they cannot find lawyers to help them prevent eviction. The Government’s changes to legal aid have brought nothing but misery and pain since they were introduced. We have waited six years for the Government’s review into legal aid, but victims cannot wait any longer. I urge the Minister to heed the advice of the Law Society and legal professionals across the country and reinstate early advice for housing matters and take action now to prevent any more families being forced into destitution because of the lack of legal aid.