§ 5.2 pm
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
I beg to move amendment No. 1, in page 16, line 33, leave out '1 to 24' and insert '1, 3 to 24'.
§ Mr. Deputy Speaker (Mr. Michael Morris)
With this, it will be convenient to discuss amendment No. 2, in page 16, line 35, at end insert—'(2A) Section 2 shall come into force on the day after this Act receives the Royal Assent.'.
§ Dr. Godman
I have been advised that I should be brief, and I always follow wise advice.
The effect of the amendment is that section 2—now clause 2 of the Bill—would come into effect on the Bill's receiving Royal Assent. The reason for the amendment is powerful: the Bill provides that many sections will come into effect on such days as the Secretary of State will appoint; my amendment would ensure that there was no delay in bringing into force the provisions of section 2, which determines which payments will be affected by the Act.
What is the reason for the postponement? The Court of Session and the sheriff court in Scotland have co-extensive jurisdiction over cases for compensation. There are certain jurisdictional advantages in taking a case to the Court of Session rather than the sheriff court. The Minister is a lawyer and, while he may not have a degree in Scottish law, I know that he has some knowledge of Scottish law. Although I do not know what pertains in English and Welsh courts, a disadvantage in going to the Court of Session is that it can be difficult to stop proceedings in that court. Postponing matters in the sheriff court can also be troublesome, but the problem is particularly applicable to the Court of Session.
Given the area that I represent, The Minister will not be surprised to learn that asbestosis is all too common among my constituents. If Royal Assent and commencement were to coincide, would he not agree that that would obviate all clawback decisions that would arise if there was a time lag of some six to seven months between the two dates?
I should have said—although I suspect the Minister knows it—that I am not a lawyer and have had no legal training in Scottish law. Nevertheless, it seems to me that there is a real problem where cases are due to be heard. Several of my constituents have expressed deep concern about what they, as lay men and women, see as legal, technical and procedural problems. One man—a skilled tradesman who was severely injured at work a few years ago, who has a wife and children and who has not worked since the injury—asked me, "Why should there be these delays? Why October? Why not April?" Those are reasonable questions for the Minister to answer.
Mr. Frank Maguire, a Glasgow lawyer who advises Clydeside Action on Asbestos, wrote to the Minister as recently as 13 March and, after posting the letter to the 750 Minister, he kindly gave me a copy. I know that masses of correspondence fall on the Minister's desk, but I should like to remind him of what Frank Maguire—a fellow lawyer—had to say. He wrote:While many personal injury lawyers are not advancing cases in anticipation of the Act coming into force so that their case is not settled or determined as at that date there are cases where trials have been fixed.Although he is a good friend of mine, I have to say that he writes like a lawyer.The number of cases about which we are speaking is therefore limited.I do not think that the Minister will challenge that statement. I cannot speak about what is happening in England and Wales, but in Scotland the number of cases is relatively small.
Mr. Maguire continues:Having regard to the limited number we cannot see how the Act cannot apply to cases which have not been settled or determined at the date of Royal Assent and CRU recoupment applied after October 1997.He states that there is a precedent for that, and continues:While we appreciate you may not have been responsible for the original 1989 Act the Government then had no qualms in bringing into force an Act in the middle of 1989 which it applied to accidents or diseases after 1st January 1989.
I tabled amendment No. 1 because of my serious concerns for some of my constituents. The case of a young man in Port Glasgow is now being dealt with in the Court of Session and the sheriff court by a firm of lawyers in Greenock, who are highly skilled in such cases. Another man, who is an ambulance driver, was badly injured. He, too, is concerned about such delays.
I expect a positive response from the Minister, to make the dates of Royal Assent and commencement the same. If he were to do that, he would earn the gratitude of many people in constituencies such as mine.
§ The Parliamentary Under-Secretary of State for Social Security (Mr. Roger Evans)
The hon. Member for Greenock and Port Glasgow (Dr. Godman) mentioned his constituent's simple question on why the provisions of the Bill come into effect only in October and not on Royal Assent—I think that he mentioned April. That request is straightforward. It is, "Please, let us have the Bill in force now, and let it catch all the claims that are in the pipeline as of today or the day of Royal Assent." I readily understand, accept and appreciate the force of that argument, but there are real and considerable practical difficulties.
On 12 March 1997, after discussion in Standing Committee on that and other matters, I wrote to the hon. Member for Fife, Central (Mr. McLeish), the Opposition Front-Bench spokesman, and sent a copy of the letter to the hon. Member for Greenock and Port Glasgow as a member of that Committee. In it, I explained that, in the other place, Lord Mackay of Ardbrecknish gave undertakings that there would be extensive consultation with all interested parties on the detailed regulations that would be consequent to the Bill's passage. Those undertakings were specifically asked for by the Opposition. The Labour party tabled about 10 amendments on consultation, and undertakings were given.
751 Therefore, even if the hon. Member for Greenock and Port Glasgow were to persuade Opposition Front Benchers to release us from those undertakings, the undertakings were given not only to the Labour party but to the world at large. The first difficulty is that the Government and Ministers are committed to consultation. Moreover, it is important that there should be consultation. There are important legal and technical issues—as I know the person in the street and the injured party will appreciate—and, in the interests of all those involved in the process, it is important that we get the regulations right.
As I explained, if we are to have proper consultation, it is probably necessary to allow the months of April and May for the process. "Consultation" means just that; it does not mean hitting people over the head with a tablet of stone and saying, "That's what we'll do." Therefore, it would be wrong to think that the process of drafting the regulations can be properly advanced beyond a preliminary stage until the consultation process has been completed.
In the timetable in the letter that I sent to the hon. Member for Fife, Central—which was copied to the hon. Member for Greenock and Port Glasgow—I stated that we envisage that the regulations will be drafted in June and July, possibly extending into August. Our intention is that, at the beginning of the summer recess, the legal framework will be in place so that the legislation can be implemented from the beginning of October 1997.
It is a matter, however, not simply of legislating but of rewriting the software that runs the compensation recovery unit's computer systems. Although we can attempt to do both tasks in parallel, the people who deal with the programmes complain bitterly when we attempt to do so, because it infinitely complicates their job, adds to expense and can cause delays in itself. They prefer to have the rules made by the House in final-cast form before translating them into the necessary instructions and software for the computer programmes that run the system.
There will also be some administrative adjustments. However, I stress to the hon. Member for Greenock and Port Glasgow that one of the striking features of the evidence given to the Social Security Committee on the workings of the compensation recovery unit—very possibly some of the people who gave the evidence were slightly surprised to be giving it—was that, administratively, the system worked well. Accordingly, we think that not only consultation but a process of drafting the regulations and subsequently writing the software is necessary, so that the system will come into effect in October in a ready state that will not cause any technical or administrative hiccups for those who must deal with it.
Those who deal with personal injury actions—whether on behalf of the plaintiff and trade unions or defendants and insurers—cannot settle or dispose of cases under the old or the new rules without the vital certificate from the compensation recovery unit. If that process were not to work reliably and efficiently, considerable difficulty and inconvenience—if not chaos—would be caused. I therefore suggest to the hon. Member for Greenock and Port Glasgow that—although I understand the point of view of his constituent, who would say, "Why can't we do it more quickly?"—there are real practical reasons, which I have partly explained in writing and amplified today, why a process of six months is necessary after Royal Assent, which I anticipate will occur soon.
752 I take the point made by the hon. Gentleman that that necessity will cause considerable difficulties for those with claims in the pipeline. The Government intend, and the legislation has been cast, to ensure that, on the day the provisions come into force at the beginning of October, all cases in the pipeline at that point that have not been settled or determined will be caught by the new rules of the new regime. If they are settled or determined before the beginning of October, they will be covered under the current regime. I readily accept and appreciate that that causes concern. Many hon. Members have written to me about specific problems of constituents, who ask, "What do I do between now and October?"
Individuals must take proper legal advice. It may well be that the change of rules will not affect their specific case to their advantage. We are talking about some hard cases that were identified—particularly by the Select Committee, and particularly the asbestosis cases from the constituency of the hon. Member for Greenock and Port Glasgow—when the old regime was particularly harsh and unfortunate. In other cases, there will be no financial difference, whichever way individuals settle. Therefore, constituents must first take legal advice on whether they will benefit.
If an individual will be affected and it is a matter of settling, he must determine what he can do to postpone the settlement—if that is the advice—until after the beginning of October and the introduction of the new regime. It was once easier to do that than in these modern interventionist days, when the rules of court encourage progress. I have no doubt that, if one has commenced proceedings, it will be more difficult to postpone than if one has not. If one has not commenced proceedings and is within the limitation period, one is entitled to dilly-dally if necessary. One is ultimately at risk of being penalised with costs if one dilly-dallies too much, but if one has not yet started proceedings, there is an opportunity to slow up the process. Most plaintiffs hate delay. They say bitterly to their lawyers, "Why doesn't the process operate more quickly? Why can't we get it through faster?"
Let us suppose that postponement is not possible because proceedings have already begun. The hon. Member for Greenock and Port Glasgow said, with more generosity than accuracy, that I might have some knowledge of Scots law. I have only a layman's understanding of what takes place in Scotland, so I am not in a position to comment in detail on the differences in procedure and litigation between the Court of Session and the sheriff court. Not having practised at the English Bar for nearly three years, I may also have forgotten—or not had occasion to attend to—the precise evolution of the rules of the Supreme Court and the county court.
In the bad old days, once a writ had been issued, one had a year in which to serve it. In other words, a person could do nothing for a year and probably even renew the writ within the limitation period. So the plaintiff, in the driving seat, could decide to park the car if he really wanted to do so.
Under the modern system of more instructions, both through the rules of court and through the operation of the listing procedures and the application of automatic directions, there is indeed a problem—people may be driven to proceed more quickly.
§ Mr. Michael Clapham (Barnsley, West and Penistone)
I detect that the Minister is being helpful, but he will realise that, when a case has already been prepared for court, the employers will apply pressure—even though the lawyers working on behalf of the victim may want a postponement. Because they stand to benefit, however, the employers will press for a case to be heard.
§ Mr. Evans
The hon. Gentleman is absolutely right. Ironically, one of the beneficial consequences of the Bill will be the strong financial incentive, for the first time, for the defendant's insurers to speed up the process. That will happen after October, because recoupment and liability stop at settlement or determination. So for the first time, once the Bill comes into effect, there will be a direct financial incentive for the defendant's insurers to press for haste.
As is well known, some such insurers have before now dragged out litigation on the basis that, five years down the line, the plaintiff may have died, or become exasperated, or gone away, or decided to accept a pittance, or not turned up on the day. It may have become easier to buy the plaintiff off by then, and in any case the money allocated will come from the sixth financial year, not the first or second—even though the latter might have been more just and commonsensical. That is all part of the workings of the insurer's mind.
In short, this legislation will act as a powerful financial incentive for insurers to get a move on, because recoupment will be more substantial. That is a good thing, but it may be awkward and unhelpful for the class of person to whom the hon. Member for Barnsley, West and Penistone (Mr. Clapham) referred, who may be wondering what will happen between April and October. Such a person, who may have begun the court process, may want to stop it reaching court before October because that will be to his advantage.
There may be quite powerful tools in the hands of the defendant's insurers, enabling them to make life awkward for the plaintiff. They can make generous payments—one can only hope, generous enough to compensate for the circumstances. At least in England and Wales—I cannot speak for Scotland—Lord Woolf's inquiries into speeding up the civil justice system have all been directed to the sort of judicial activism that speeds up these processes. In this context, that has led to a problem.
One of the difficulties inherent in a substantial change to the law, as this is, is that some people will be adversely affected if they are on one side of the line rather than the other. I can see the force of the argument for activating the measure earlier, but I cannot carry out the undertakings that the Government have given and, at the same time, implement the proposals earlier.
To make matters more complicated, I can well understand the purpose of the amendments from a purely humanitarian point of view. We all have constituents in this position; they tell us that the Bill is necessary and represents an improvement. It rights a harsh injustice for the limited class of people whom the Select Committee rightly identified as needing assistance from legislation. I regret to say, however, that complications arise when some people are caught out by the timing.
An additional problem is the fact that the amendments do not even accomplish what they are meant to. I regret to say that they would bring about general chaos, with 754 unknowable consequences. Amendment No. 1 means that clause 2 alone would come into effect on Royal Assent. Clause 2 reads:This Act applies in relation to compensation payments made on or after the day on which this section comes into force".The problem with the amendment is that nothing else would come into force until the Secretary of State issued the appropriate commencement orders—I refer at this point to amendment No. 2.
The results would be complications beyond measure. One is that the clause in the Bill which repeals part IV of the Social Security Contributions and Benefits Act 1992 would not be implemented. We would thus have one law prescribing one regime, and a later section of the new Act suggesting that there was a new regime in force. Unless the Secretary of State then advanced the process of implementing the remaining sections, there would be no machinery to apply the new regime—no framework for regulations to come into force. My right hon. Friend the Secretary of State would not have the power to make such regulations unless the rest of the Act was in force, too.
I cannot predict what the courts might make of that. I can only respectfully suggest that it would generate such uncertainty that I cannot believe that the hon. Member for Greenock and Port Glasgow would want to place us in that position. Litigation and/or chaos would be left to resolve the situation; it certainly would be an unfortunate one.
I fully appreciate the hon. Gentleman's desire for us to hurry up and activate the legislation at the earliest possible moment, but I cannot see how to do that practically. I am stuck with the undertakings given by the Minister in the other place. What is more, the 1948 scheme was riddled with anomalies and difficulties until it was swept away, on 1 January 1989, by the present arrangements. I suggest, in the interests of the expeditious disposal of personal injuries litigation, that we get the rules and regulations right and make them fair and comprehensible for all involved.
Accepting the force behind what the hon. Gentleman is attempting to achieve, I invite him not to press the amendment, for the reasons that I have outlined.
§ Dr. Godman
In mitigation I might point out that I am neither a lawyer nor a parliamentary draftsman. I sincerely hope, however, that the Crown Office in Scotland will be made aware of the Minister's remarks today so that, if need be, advice can be given to sheriffs and judges in the Court of Session—
§ Mr. Roger Evans
I do not know whether it is right for a Minister to attempt to give guidance to an independent Scottish judge, but I undertake carefully to examine what can be done.
§ Dr. Godman
I am grateful to the Minister. He might mention my concerns in passing to his colleagues at the Scottish Office. I am sure that they will give him the appropriate advice.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.