Challenging the politicisation of the judicial process

Challenging the politicisation of the judicial processChallenging the politicisation of the judicial processThis article first appeared in Modern Insurance Magazine Issue 31, June 2018

Ministers apparently made 6,787 laws by statutory instrument (SIs) between 2014 and 2016 under powers delegated to them by Parliament. The EU (Withdrawal) Bill currently creeping through Parliament is expected to generate between 800 and 1,000 SIs alone. In contrast, the Civil Liability Bill looks set to only generate a handful of pieces of secondary legislation delegating powers to the Lord Chancellor. They may be few, but they are already lining up to be the primary battle lines.

The Lords’ own Delegated Powers and Regulatory Reform Committee said that “by any standards, the Bill is skeletal”, meaning that it is a largely a framework of powers to be granted to Ministers, devoid of the all-important detail, to be added later in the form of one or more statutory instruments.

MASS has long argued that given the absence of medical qualifications or experience within MoJ, the regulations on the detailed definition of whiplash should be determined by independent, qualified medical experts. It was heartening that the Committee agreed, saying: “Neither the Lord Chancellor nor the Ministry of Justice is best placed to make this determination, which depends on medical expertise and clinical judgment.”

Similarly, we do not believe that it is appropriate that the Lord Chancellor set the levels of damages for accident victims under the proposed tariff. The Judicial College’s Guidelines have provided a clear and logical framework for the assessment of damages in personal injury cases since they were first published in 1992, and the courts have been assessing damages since the creation of the law of tort. We believe that it is entirely consistent and logical that the judiciary continue to determine damages under the revised regime. Once again, the Delegated Powers Committee agreed, saying: “We are not convinced that the Lord Chancellor will make a better job of this than the judges, who have had decades of experience dealing with damages for personal injury at the bar and on the bench.”

It is still early days in the passage of the Bill, and no-one knows whether it will emerge largely unchanged having been scrutinised by Parliament, but this politicisation of a judicial process cannot pass unchallenged. The sector, and most importantly, motor accident victims, have a great deal riding on it.

Simon Stanfield, author of ‘Challenging the politicisation of the judicial process’ is Chair of the Motor Accident Solicitors Society (MASS) and a Partner at Simpson Millar


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MASS promotes the highest standards of legal services through education and representation in the pursuit of justice for victims of road traffic accidents.