This article first appeared in Legal Futures, 20th April 2018
The government should set out the definition of whiplash and the levels of compensation claimants will be due on the face of the Civil Liability Bill, rather than leaving them to secondary legislation, so that peers and MPs can understand what they are voting on, a parliamentary committee has said.
The House of Lords’ delegated powers and regulatory reform committee also suggested it should be judges, rather than the Lord Chancellor, who should set the new tariff of damages.
The bill’s parliamentary journey starts in earnest on Tuesday, when it has its second reading in the House of Lords.
The Motor Accident Solicitors Society (MASS) had written to the committee to express its concern that the detail of these key provisions was not in the bill, but rather would be delegated to the Lord Chancellor, who would put them in secondary legislation.
The committee said it agreed with MASS that the extensive use of delegated powers in what it described as a “skeletal” 12-clause bill “will severely limit parliamentary scrutiny as the full impact of the proposed measures cannot be determined without consideration of the proposed regulations/secondary legislation. The devil is very much in the detail”.
The government’s justification for putting the definition into regulations was that whiplash must be defined accurately, there must be extensive consultation and the definition must remain accurate.
The committee said: “We agree with these propositions. But it does not follow from them that the definition of ‘whiplash injury’ should be contained in regulations rather than the bill.
“Neither the Lord Chancellor nor the Ministry of Justice is best placed to make this determination, which depends on medical expertise and clinical judgment.
“We take the view that it would be an inappropriate delegation of power for ‘whiplash injury’, a concept central to a full understanding of the bill, to be defined in regulations made by ministers rather than being defined on the face of the bill.”
In relation to the tariff, the government said it would need to be reviewed from time to time, to make reasonable allowance for inflation, for example, or because damages for pain, suffering and loss of amenity (PSLA) “are not capable of precise quantification”.
The committee said it was “not convinced” by the Ministry of Justice’s argument.
“Merely because a figure or a mechanism needs updating from time to time does not mean that it should not initially appear in primary legislation,” it said.
“Even if damages for PSLA are not capable of precise quantification, their quantification is not rendered easier merely because the choice of legislative vehicle is a statutory instrument rather than an Act of Parliament.”
The committee said it was also not convinced that the Lord Chancellor would make a better job of tweaking the tariff, for whatever reason, than judges, “who have had decades of experience dealing with damages for personal injury at the bar and on the bench”.
It added: “We also agree with [MASS] that it is not appropriate for the Lord Chancellor to be granted powers to make provision for damages relating to ‘minor psychological injuries’ occasioned by the whiplash injury.
“If this is not to be determined by the judges, it would be better determined by independent medical experts rather than by government.”
The committee recommended that the tariff should be set out on the face of the bill, “albeit amendable by affirmative statutory instrument”.
MASS chair Simon Stanfield said: “We have long held serious concerns that so many elements of the government’s proposed changes to whiplash claims were being delegated to ministers and officials, rather than the judiciary or independent medical experts.
“We are, of course, pleased that this House of Lords committee has agreed.
“Looking beyond the Civil Liability Bill, our concerns obviously extend to the fact that the grossly unfair proposed increase in the small claims track limit may receive minimal parliamentary scrutiny and debate.
“Such major and detrimental changes to the way in which accident victims seek the justice which they deserve must be fully transparent and the detail debated openly. We must now see how the government responds to this report.”