HL Deb 27 March 2003 vol 646 cc996-1033

5.40 p.m.

House again in Committee on Clause 92.

[Amendments Nos. 140ZA and 140ZB not moved.]

Baroness Scotland of Asthal moved Amendment No. 140ZBA: Page 45, line 24, leave out second "or

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 140ZBB and 140ZBC: Page 45, line 27, at end insert ", or

  1. (d) the source of payment under the new method is a government or health service body."
Page 45, line 33, at end insert— (1A) For the purposes of section 2(4)(c) and (7)(d) "government or health service body" means a body designated as a government body or a health service body by order made by the Lord Chancellor. (1B) An order under subsection ( 1A)—
  1. (a) shall be made by statutory instrument, and
  2. (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 140ZBD: Page 45, line 37, leave out "or

The noble Baroness said: I shall speak also to Amendment No. 140ZBE. In the event of the insolvency of an insurer funding periodical payments, new Section 4, inserted in the Damages Act 1996 by Clause 93, provides that the claimant's payments are fully protected under the Financial Services Compensation Scheme. In order to receive compensation under the scheme, it may be necessary for the claimant to assign his or her right to the payment to the scheme manager. Amendments Nos. 140ZBD and 140ZBE ensure that claimants can do so without having to seek the court's approval. I beg to move.

Lord Hunt of Wirral

I shall know these affectionately as the "zebedee zebedoo-dah" amendments. There must be a better way of listing amendments. The references 140ZBD and 140ZBE give much cause for merriment, but the Minister has moved the amendments with her usual clarity.

On Report, I shall seek to return to the question of whether "or" is disjunctive or conjunctive, and the extent to which throughout the Bill "or" appears where I believe that it should not appear and does not appear where I believe that it should. But that merriment lies ahead. In the mean time, I welcome the amendments.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 140ZBE: Page 45, line 40, at end insert ", or

On Question, amendment agreed to.

Lord Hunt of Wirral moved Amendment No. 140ZC: Page 46, line 3, leave out from beginning to end of line 42 on page 47.

The noble Lord said: We now move to a very important debate on periodical payments. As I mentioned, they are much welcomed by a range of bodies, including the National Health Service Litigation Authority, the Medical Defence Union, the Medical Protection Society, the Association of British Insurers, the International Underwriting Association and various other bodies representing claimants and defendants.

That is the general welcome. The concern is that there is provision in the Bill for the structured settlement, involving a series of periodical payments, to be reviewed. That appears to be an open-ended situation. If the provision were implemented, there would be genuine concerns that the concept of reviewability would cause more litigation and endless uncertainty. I know that many people involved in work for and on behalf of people with disability believe that that could put claimants under constant scrutiny and that there would be financial instability for defendants, whether they were government departments, the National Health Service or insurers and re-insurers and their policy holders. There is a belief that it could be a fatal flaw.

One of the points made by the Minister that received a warm welcome was that she foresaw the widespread use of periodical payments. I agree that lump sums are unsatisfactory. To some extent, they place huge pressure on the people least able to cope. The Minister added that she did not want the reviewability provisions to jeopardise the new concept. I could not agree more. If the Bill is to allow reviewability in the way presently outlined, some provision must be inserted to restrict its use. The provision for review could pursue the adversarial system for the rest of a claimant's life and impose undue burdens on defendants. In certain cases, insurers might feel that a programme of surveillance was justified, to make sure that the claimant used the funds appropriately.

Several other issues arise from this group of amendments. I realise that it is not a matter for the Minister, but I must point out that seven amendments in my name have been grouped. I know that we are anxious to make progress on the Bill, but we will need time on Report to go into the matters in further detail. I want to hear what the Minister has to say about the amendments before deciding which issues to take forward in a wider debate.

Amendment No. 140ZC would leave out the provision for reviewability. Amendment No. 140C would lay it down clearly that, for reviewability to be allowed, it would have to be envisaged in the original court order that that variation would take place at some stage. The amendment would insert the following words: provided that the original court order for periodical payments expressly permits a party to apply to a court for variation in those circumstances".

Amendment No. 141ZA is in the name of the noble Lord, Lord Goodhart, but I have tabled Amendment No. 141ZB, which is a similar amendment. It is a rather lengthy provision, but it would allow variation only if there had been serious deterioration or a substantial improvement. The change would have to be of some magnitude for variation even to kick in at any stage. I shall come back to Amendment No. 141A.

Amendment No. 141AA would delete the provision whereby the Lord Chancellor could take steps, even if those steps would be better taken by the civil justice rules committee. Amendment No. 141 AB would omit lines 27 and 28 from page 46—the Henry VIII provision—which would leave out the opportunity for an order to be brought forward in any way that would amend the enactment. There is another amendment that would delete the words "or amend". Subsection (4) reads: An order under this section may apply (with or without modification) or amend an enactment about provisional further damages". That would create a tremendous uncertainty because it allows anything to be enacted.

Amendment No. 141C seeks to ensure widespread consultation. I do not want to descend into a debate on whether the wording should be "may" or "shall", but I hope that the Minister realises the imperative of consultation. Amendment No. 141D would leave out the opportunity for the Lord Chancellor to consult with, such persons as he thinks appropriate", but to consult, as widely as is reasonable in the circumstances". Perhaps that gives the noble Baroness an opportunity to comment on the extent of the consultation envisaged.

Amendment No. 141E is an important amendment which seeks to ensure that these provisions are not retrospective. Before dealing with Amendments Nos. 141EA and 148A, I shall pause to spend a moment considering retrospection.

The effect of uncertainty cannot be underestimated. Looking back over recent years, there have been many examples of the stockpiling of claims that are awaiting decisions on levels of damages, multipliers, interest rates and now costs. There are also many examples of the backdating of increases in damages and costs. Therefore, there are real concerns that the provision for possible retrospective effect would create a serious problem for all those involved in structured settlements.

To give an example: at the moment there are a number of structured settlements being entered into. That is being encouraged. They are being entered into with the consent of the parties. Will they be entered into when the parties to them realise that now these provisions could be retrospective? The structured settlement into which they are entering could be changed at some stage and reviewability imposed on an already existing agreement that does not allow for it. On the face of the Bill that would be possible. Any comments from the Minister would be much appreciated. Otherwise, I fear that we may see a sudden full stop to the evolution of structured settlements.

That demonstrates the dangers of variation. Although I spoke about the need to restrict the provision, I still return to the fact that most people to whom I have spoken outside this House regard the possibility of variation as a very serious flaw—perhaps even a fundamental flaw—in the development of structured settlements. It is a serious worry.

It is a worry not only to insurers, reinsurers and claimants, but I know that it is a particular worry to the National Health Service. I recall a very effective speech today made by the noble Baroness, Lady Finlay of Llandaff. She pointed out that the provision now for the National health Service has been increased so that the anticipated claims for clinical negligence now stand at £5.25 billion. That is an appalling figure. Of course, it takes into account the likelihood of settlement of all claims as determined by actuaries. But in 12 months the total liability has increased by £850 million.

One reason why it has increased so substantially is that there have been a number of retrospective changes to the law which have resulted in damages awards being revisited and increased substantially. As the noble Baroness pointed out, the total of £5.25 billion is not to be paid out in any one year. The actual sum paid out during the 2001–02 financial year amounted to £446 million. But that, in itself, was £31 million more than the amount paid in 2000–01.

Aside from the NHS Litigation Authority, which has made its views very clear, the two main organisations here are the Medical Defence Union and the Medical Protection Society. The MDU has made a strong case against reviewability which includes some of the points I have already made: lack of finality and certainty; difficulty in defining the circumstances that might give rise to review, in particular for the defendant; causation—to which I shall return in a moment; costs; the wishes of the parties and retrospective costs.

Causation is an interesting point. If a structured settlement is reached, but is open to review, in many medical negligence cases or cases involving allegations of medical negligence, it will be necessary to determine the extent to which a change in circumstances is related to the negligent act rather than, for example, the effects of an illness, old age or another reason unrelated to the original negligence. That would require revisiting the whole problem. I can well understand why the Medical Defence Union is so concerned about this aspect.

The Medical Protection Society has also demonstrated a point made by a whole range of defendants; namely, that the society needs to be able to close its books, as do insurers and reinsurers. Reviewability will create a continuing uncertain liability that would be extremely difficult to manage. For example, the bodies would need to increase their reserves to meet the possibility of an order for increased payments demanded, say, 10, 20, 30 or even 40 years after the initial settlement. Furthermore, the MPS has pointed out that, as a mutual organisation, it collects from its members the subscriptions needed to meet expected liabilities. The introduction of reviewable settlements introduces a huge degree of uncertainty about those future liabilities.

In many cases of clinical negligence a claim that reaches court may well relate to what had happened years earlier. However, the MPS provides indemnity on an occurrence basis; that is, provided that the doctor was in MPS membership at the time of the incident giving rise to the claim, he or she can apply for assistance even if they ceased to be a member long before the claim is made. So the introduction of rules applying to new claims is retrospective from the society's point of view because they apply to past subscription years. The society also makes the point that I have already put forward concerning claimants being spied on.

I shall end on the most serious point of all. Reviewability may inhibit rehabilitation. I believe that there is now a widespread consensus that what is most important in such claims is to ensure that, where appropriate, everyone's efforts concentrate on helping the individual to secure an early and prompt return to work or, in other circumstances, to an early and prompt return to the community. Later we shall address the question of future medical care, but surely the emphasis in all these structured settlements—we wish them well because a system of periodical payments is far better than the old lump sum damages system—should be that the interests of the claimant, the victim, are paramount.

Lastly, as I mentioned earlier, those involved with organisations promoting disability rights feel strongly that in all this, the central focus must be placed on getting an individual back into the work and back into the community. They fear that reviewability may well inhibit the process. I beg to move.

6 p.m.

Lord Goodhart

I shall speak to Amendments Nos. 141ZA, 141A and 141B in this group. This is part of a very important group of amendments. Clause 92 is probably the most controversial clause outside the provisions relating to the administration of the magistrates' courts. It certainly caused great concern to the insurance bodies such as the Association of British Insurers and the Medical Protection Society.

The right to re-open a claim for damages in very limited circumstances has existed for several years by virtue of Section 32A of the Supreme Court Act 1991, which was introduced by a later amendment. Basically, that provides that the original damages may be awarded on a provisional basis in very limited circumstances. Amendment No. 141ZA brings the restrictions on claiming provisional damages into the definition of the circumstances in which it will be possible to re-open an award which has taken the form of periodical payments.

What has to be shown before an order can be made is that in the original case it was proved or admitted that there was a chance at some definite or indefinite time in the future that the injured person would develop, as a result of the act or omission which gave rise to the cause of action, some serious disease or suffer some serious deterioration in his or her physical or mental condition and the court assessed the provisional damages on the assumption that the injured person would not develop the disease or suffer deterioration in his or her condition. That simply transposes those restrictions into periodical payments.

A right to re-open a case in those limited circumstances, whether it be provisional damages or periodical payments, seems justifiable. There are clearly cases where a condition may develop and there may be a serious deterioration in the condition, but it is simply impossible at the time of the hearing to determine. In the past, before it was possible to claim provisional damages, it led to the case being delayed as long as possible so it was possible to ascertain as accurately as may be done, whether the condition was likely to develop or not. Introducing provisional damages has made it unnecessary to delay the case in those circumstances.

There are cases where the damages cannot be easily assessed until a future date when it becomes clearer whether a condition will develop. If the court was forced to come to a final view at the original trial it might award a great deal too much in damages or a great deal too little. I entirely accept that in such circumstances a power of variation is needed both as regards provisional damages and periodical payments. I also believe that these are rare circumstances. I understand that few orders have been made for provisional damages.

Therefore, I agree with most, but not all, of what the noble Lord, Lord Hunt of Wirral, said. The issue on which I disagree is retrospectivity. From what I have said it is obvious that I do not agree that there should be no power of variation, but it should be at a limited level on the basis of the provisional damages limitation.

Amendment No. 141ZA would restrict variation to cases where the court, when making the original order, has expressly allowed the claimant to come back for further damages at a later date.

There are a number of reasons for this. First, if there were to be a general right to come back for damages, it would be likely to add substantially to the cost of insurance. It would also mean, for example, that medical records relating to any case where the claimant had been awarded damages—or periodical payments—would have to be kept for decades just in case further actions arose.

Despite that, if I thought that, in general, it would be for the benefit of claimants if they were allowed to reopen claims at a later date because of some change in their condition, I would support a general right. However, there is clear evidence—referred to by the noble Baroness, Lady Finlay of Llandaff—to show that a general right to reopen a claim for damages would not be in the interests of most claimants because of the importance of closure and the importance of the claimant, having received damages, being able to get on with his or her life.

Under proposed new Section 2B(1) of the Damages Act the Lord Chancellor may allow a variation of an order to be made in any circumstances that he specifies. As I understand it, the Government intend, at any rate initially, to restrict the circumstances in which an order for periodical payments could be reopened. But that would leave the power, which could be exercised by some future Lord Chancellor, to give a general right to reopen cases. I believe that that is inappropriate. Certainty is of great importance here. It is plainly undesirable that insurers should he faced with the risk that, at some time in the future, the Lord Chancellor might return to this legislation and widen the circumstances in which a variation could be made. I believe that we should place the same limits on the variation of periodical payments as apply in primary legislation to the variation of the order for provisional damages.

I turn to Amendment No. 141A. It is largely consequential on Amendment No. 141ZA. It seeks to remove paragraph (b) in proposed new Section 2B(3) of the Damages Act 1996. It would remove the provision under new Section 2B(3) that an order may make provision, which has effect irrespective c f the conditions or other terms of the court's order or of the agreement". That wording is extremely wide. It is highly undesirable to allow existing orders or agreements to be overridden. That should not be allowed to happen. It is not clear, frankly, what is the purpose of new Section 2B(3)(b). It also appears to be in some conflict with the provision in new Section 2B(2)(b), which allows the courts to reopen a structured settlement only if the agreement for settlement expressly allows that to happen. Will the Minister explain in what circumstances the provision in new Section 2B(3)(b) can be used. It may have some legitimate purpose; but, if so, I believe that it could be contained in a narrower set of words.

I have also tabled Amendment No. 141B in this group. Its effect would be to remove the words "or amend" from subsection (4) of proposed new Section 2B. The noble Lord, Lord Hunt, referred to that. The subsection states: An order under this section may apply (with or without modification) or amend an enactment about provisional or further damages". While it may be appropriate to allow consequential amendments, the power appears to go a long way beyond consequential amendments. It could be used to alter the existing primary legislation about provisional damages so as to extend the circumstances in which provisional damages could be awarded. That is a matter we have not discussed and will not discuss. It is highly undesirable that it should be possible to introduce the power by secondary legislation even if, as is provided by subsection (6), it has to be by the affirmative resolution procedure.

Finally, I refer briefly to the issue of retrospectivity. I am unable to agree with the noble Lord, Lord Hunt, on this part of his argument. There is already a power to award provisional damages. Where there is a power to award provisional damages by definition there must be a power to reopen that award; otherwise the damages would not be provisional. I cannot understand any real difference of principle which would require us to refuse to allow an order for periodical payments to be varied in circumstances where, if the order had been made for provisional damages, it could have been varied. I do not believe that the matter would have the serious consequences suggested by the noble Lord, Lord Hunt.

Subject to that, I entirely agree with the noble Lord's views on the issue. Therefore, I am happy to support in general what he said.

Baroness Finlay of Llandaff

I have spoken to this group of amendments but perhaps I may add a couple of points and comment on matters raised.

The noble Lord, Lord Goodhart, rightly highlights how damaging delays are for patients, in particular if that is on the premise that, "We'll see what is going to happen". I understand that for a small number there is an argument for an interim settlement followed by a rapid review. There is a danger that the patient will feel in a state almost of suspended animation from the time of the interim settlement until the review. The benefits are very small. On balance, unsettled issues for patients can be psychologically damaging.

As the noble Lord, Lord Hunt of Wirral, said, uncertainty hangs over patients. It is like a sword of Damacles. Patients are terrified that they will be watched, with any recovery going against them. Uncertainty works against them in clinical care. Perhaps I may outline the reality of a patient currently going through litigation. Everyone is frightened of looking after him. The patient goes into hospital because he is ill or into another part of healthcare because he has something wrong with him and needs treatment. However, because there is ongoing litigation all clinicians are scared of dealing with the problem. It is a natural response. There is a huge tendency towards defensive medicine. Defensive medicine is not good medicine. With good medicine, one is always undertaking risk assessment and going for management which is of least risk and most benefit to the patient. But there are no absolutes. It is always a matter of professional judgment on behalf of the clinicians.

When one is being defensive in one's practice, that balance and clinical acuity is often impaired. I have seen patients who have gone back for repeated operations, offered to them in good will and with the best of intentions. They have been accepted by the patients in the false hope that they will be a magic answer to their problems but they have only compounded the problems. I had one patient in my care who was operated on 30 times. It all began when he was reoperated on when in the process of a complaint—a litigation—against someone from a previous operation. A downward spiral can occur in clinical care.

The other problem is rehabilitation. I declare an interest, because I run a chronic pain management programme for patients who have chronic intractable pain that has not responded to any interventions when all interventions and investigations have been exhausted. I know from first-hand experience that patients do not do well who undergo litigation and have not achieved closure. They are always worried that someone will say that it is all in their minds, as a way of getting out of financial or care liabilities. Such patients cannot move on in the rehabilitative process, and it becomes almost a waste of expensive resources in pursuing a rehabilitative programme when, psychologically, they and their families are not ready for it.

Such patients come under huge pressure from those around them, who love them. Everything that happens to them is blamed on the original problem. Whenever they get a headache or a backache, which we all get from time to time, it is blamed on the original problem. People tell them that it must be because of what happened to them, which reinforces their inability to rehabilitate and move on. To put it in simple words, it impairs their ability to look at the bits that still work well and maximise them, and to learn to live with the bits that are damaged.

For those reasons, and because of my genuine fear that the clinical care of these patients will be seriously compromised if it is known that they are in the process of litigation that may go on to be revisited, I do not believe that the process of review of structured periodical payments or any other type of settlement would do any patient a service. In fact, I fear that it would do patients a great disservice.

6.15 p.m.

Lord Renton

Unlike the noble Baroness and the two noble Lords who spoke before her, I cannot claim to have had any experience or expertise in the working of this matter. I retired from the Bar when I was 66, which was 28 years ago. However, as a parliamentarian who happens to be a lawyer, I like to see any legislation dealing with the administration of the law put into workable and simple phraseology and practice.

Amendment No. 140ZC would remove from the Bill a system that would cause delays and unnecessary confusion. Surely, the aim of obtaining necessary flexibility should be achieved in ways that do not cause delay. On page 46, in new Section 2B, under the heading, "Variation of orders and settlements", we find a most elaborate scheme. The Lord Chancellor is given wide powers to cause variation without, it seems, much consultation on his part.

Under subsection (6) we find: An order under this section … shall be made by statutory instrument". It cannot be made, unless the Lord Chancellor has consulted such persons as he thinks appropriate". But who are they? Are they the parties to the action which perhaps took place long before? The order may not be made, unless a draft has been laid before and approved by resolution of each House of Parliament". Of course it is right for Parliament to lay down what the law should be and endeavour to achieve justice, but it is extraordinary to suggest that the variation of an order should become the responsibility of Parliament, requiring that a draft be laid and approved by resolution of each House of Parliament.

The provision goes into further complication when it states that the statutory instrument, may include transitional, consequential or incidental provision". We are anxious to achieve justice. Indeed, as I understand it, although it is so many years since I practised, the Supreme Court Act 1991 and the Damages Act 1996 have caused justice to be further obtained. However, I sympathise with the views put forward by my noble friend Lord Hunt of Wirral when he criticises the whole scheme of new Section 2B. I most earnestly hope that the noble Baroness, on behalf of the Government, will think twice about it.

Lord Donaldson of Lymington

I have just one small point. The noble Lord, Lord Renton, was speaking, as I understood it, in contemplation of the Lord Chancellor making an order with regard to a specific case. I certainly had not so read it. I had thought that this was a power to create categories of case in which the court can take that action. Perhaps the Minister will tell me whether I am right about that.

Baroness Scotland of Asthal

I thank all noble Lords who have so far spoken. A number of themes are clear. First, there is general assent to the need for periodical payments and for them to be robust. Secondly, there is total agreement that closure—mentioned by the noble Baroness, Lady Finlay of Llandaff—for claimants who find themselves involved in this sort of litigation is absolutely critical. We hope that the way in which the Bill is currently phrased will enable such closure to take place, and the variation which is permitted within the Bill will not do violence to that principle. This group contains some very complex and detailed amendments and I want to do each of them justice. I think that they merit individual consideration.

These amendments, none of which is consequential on any other, all relate to the provisions in the Bill for the variation of periodical payments orders and settlements. Amendment No. 140ZC would remove Section 2B entirely. I am sure that the noble Lord, Lord Hunt, will not be surprised to hear that the Government cannot accept this amendment. The principal purpose of periodical payments is to meet as accurately as possible the actual needs of claimants as they arise. The provision of a power to allow scope for variation in defined circumstances is an important element in realising the full benefit of periodical payments. I say in passing that the comment of the noble and learned Lord, Lord Donaldson, was apposite.

Our recent consultation paper sought views on a number of options. The majority of respondents. were in favour of some form of variation, with a significant number wanting something much wider that that which we are now proposing. However, I fully understand the views expressed by the insurance industry and medical defence organisations—and their desire for certainty regarding their outstanding liabilities, which were fully outlined by the noble Lord, Lord Hunt. For that reason, we have adopted a cautious approach to variation.

As stated in the Explanatory Notes, the order will, as far as practicable, adopt the mechanism currently applying to claims for provisional damages. The circumstances in which further damages may be requested shall be set out in the initial order oft he court and relate only to the individual claimant's medical condition attributable to the original accident.

There are two small but important differences when compared with provisional damages: the rules on variation will allow defendants to apply, and the circumstances will include both deterioration and improvements. Circumstances sufficient to justify a variation will have to amount to a significant change, which will keep minor disputes away from the courts.

Our intention is that the power to vary awards of periodical payments will be tightly drafted and carefully controlled—including a requirement for the court's permission before any application can be made. Any future exercise of the Lord Chancellor's power to specify the circumstances in which a n order can be varied would be subject to consultation and affirmative resolution by Parliament.

Such a restricted system of variation should not require additional compensation over and above that already payable. Insurers are already providing for such eventualities—usually by way of contingency payments—but because the amount of the award has to be calculated at the time of the original order, that can involve estimates of future need that may not be accurate. I am sure that your Lordships have known of many such instances.

In some cases, claimants might not receive the compensation to which they are justly entitled, resulting in their needs not being met or having to be funded by the taxpayer. In other cases, defendants and insurers may make substantial and unnecessary payments for events that never occur. That is clearly the worst of both worlds.

In cases where there are real difficulties in assessing the likelihood of a claimant developing a particular medical condition or overcoming a medical disability at the time when the periodical payments order is made, a variable order can provide the best solution. The Government recognise that in the majority of cases a non-variable award is likely to be more appropriate. Many foreseeable changes can be built into an annuity—and some are. The annuity can be used in a flexible way to reflect anticipated changes in the claimant's needs. There is no reason for that not to continue. The more creative that the insurance industry can be in providing flexible annuities to meet future change, the less likely that wider scope for variation will be needed. It will be less likely too that the order-making power will need to be used again.

I reassure the Committee that we have no plans to extend the scope of variation after the initial order. We want to see how the intended regime works. But that should not prevent us from keeping open the option of extending or limiting further the extent of variation in the light of experience and future developments in the insurance market, or making any minor adjustments should that prove necessary. I believe that an order-making power provides the flexibility to do so and is the best way of dealing with variation. The need for consultation and affirmative resolution will ensure that any future proposal—and, as I have indicated, none is planned—is subjected to rigorous scrutiny and debate. We believe that the greater use of periodical payments will have benefits not only for claimants but also for defendants and their insurers and that the power to vary is a necessary and important part of the new system.

I understand and have listened carefully to the anxieties expressed. I hope that now, as I respond to specific amendments in turn, I shall be able to allay those anxieties to noble Lords' satisfaction. Amendment No. 140C would limit the power to vary to circumstances where the original court order expressly permits it. We intend that the initial order will allow variation only where it is specifically provided for in the court order. This type of detail is more appropriate to the order-making power. We believe that it is unnecessary and unduly restrictive to include such a requirement in primary legislation.

Amendments Nos. 141ZA and 141ZB limit the provisions that may be included by the Lord Chancellor in an order enabling the upward variation of a court order for periodical payments. The limits they would introduce are based on the wording of Section 32A of the Supreme Court Act 1981 relating to the courts' existing power to award provisional damages, but are considerably more restrictive. Section 32A permits provisional damages to be awarded where there is proved or admitted to be a chance that, at some definite or indefinite time in the future, the claimant will develop some serious disease or suffer some serious deterioration in their physical or mental condition as a result of the defendant's act or omission.

The amendments would require proof or admission at the time of the original court order that the disease, deterioration, and, in the case of Amendment No. 141ZB, improvement, would occur.

6.30 p.m.

Lord Goodhart

I must point out that Amendment No. 141ZA states that it has to be proved or admitted in the original hearing that, there was a chance that at some definite or indefinite time in the future". I confess that in my original amendment I left out the words about chance, but it was replaced by the present version, which refers to "a chance" rather than to proof.

Baroness Scotland of Asthal

I am grateful to the noble Lord for his clarification. By restricting the scope of the order to circumstances where it was proved or admitted that the disease, deterioration or improvement in the claimant's condition would definitely occur rather than where there was a chance that it would occur the amendments would prevent our making the initial order in the terms we propose, which go no further than the provisional damages. If the noble Lord seeks to replicate the position in relation to provisional damage there is probably nothing between us.

Restricting the terms of variable periodical payments beyond those governing provisional damages would discourage their use and could force awards to be made by way of lump sums and provisional damages where variable periodical payments were more suitable. That is our worry. By preventing any future orders being made in different terms in the light of experience and future developments in the insurance market, the amendments would undermine the purpose of the order-making power. Not only would they prevent extensions to the scope for variation, they would also prevent any restriction that might be necessary.

Amendment No. 141A proposes the removal of the provision that allows an order for variation made by the Lord Chancellor under Section 2B(1) to have effect irrespective of the original terms and conditions of the court order or agreement. That provision is intended to ensure that the framework for the order-making power is wide enough to capture all possible eventualities for variation. Any such order would of course be subject to consultation and the affirmative resolution of Parliament under the terms of Section 2B(6).

However, I recognise the concern outlined by noble Lords and the noble Baroness, Lady Finlay of Llandaff, about the provision. They fear that it could create unacceptably high levels of uncertainty, and the Government are therefore willing to accept the amendment. I hope that that gives the noble Lord, Lord Goodhart, pleasure.

Amendment No. 141AA removes the provision enabling an order of the Lord Chancellor to make provision of a kind that could be made by civil procedure rules. The provision in the Bill is intended to provide greater flexibility, as it is likely that provisions relating to variation may contain elements of substantive law which would be more appropriate to an order than rules of court. There may also be occasions where it is more efficient to deal with a particular matter wholly by order rather than by rules. As noble Lords are aware, rules of court are subject to negative resolution by Parliament. If it is decided to implement any provision by way of an order, it will be subject to consultation and the greater scrutiny of affirmative resolution.

Amendments Nos. 141AB and 141B would prevent an order for variation amending legislation governing provisional damages. Amendment No. 141AB would also prevent an order from applying such legislation. As we intend that the initial order for variation will operate on similar terms to that of provisional damages, it is clearly practical that an order should be able to apply the legislation that governs those damages. There is also the possibility that the courts may wish to award a lump sum by way of provisional damages in conjunction with a variable periodical payments order. If the power to amend provisional damages legislation was removed from the scope of the order-making power, any necessary amendments to ensure that the two regimes could operate in tandem would have to be made through primary legislation instead. That would be extremely cumbersome and inefficient. We believe that the most effective way to achieve compatibility is through the order-making power. That provision has, of course, been considered by the Delegated Powers and Regulatory Reform Committee, which did not consider that the attention of the House needed to be drawn to it.

Amendment No. 141C raises a drafting point. The use of the word "may" in Section 2B(6)(b) is standard drafting and is not permissive but prescriptive. It is used elsewhere in the Bill. The Lord Chancellor will be required to consult before making an order under Section 2B(1). I hope that the noble Lord will agree that the amendment is unnecessary.

The Bill requires the Lord Chancellor to consult, such persons as he thinks appropriate". The noble Lord, Lord Hunt, raised that issue in relation to Amendment No. 141D. He and the noble Lord, Lord Renton, asked about the people whom the Lord Chancellor was likely to consult. Consultation will include—I hesitate to call them the usual suspects—the legal profession, the Association of Personal Injury Lawyers, the Forum of Insurance Lawyers, the insurance industry, the Association of British Insurers, medical defence organisations, the National Health Service Litigation Authority, the judiciary, the Civil Justice Council, disability groups and other government departments. It will be available on the departmental website.

Lord Renton

I am grateful to the noble Baroness for giving way. She has now made it clear that, although it appears to me from the wording of the clause that the Lord Chancellor can require the courts to deal with cases on an individual basis, that is not the intention of it and that, therefore, there is no question of particular cases being dealt with by an order by the Lord Chancellor but merely dealt with by the powers given to the courts.

That being so, and I suppose I must apologise for thinking that it could be meant the other way. I believe that between now and Report the Government should consider the wording of the clause in case other people imagine—it is quite easy to interpret it as such—that it gives power for action to be taken in individual cases.

Baroness Scotland of Asthal

I hear and accept what the noble Lord says. However, I hope that during these debates in Committee we shall give those who come to construe the Bill in due course the kind of information that will enable them to be clear as to how these matters should properly be read. I hope that that will prove to be of assistance to them.

Amendment No. 141D would replace the words, such persons as he thinks appropriate", with the words, as widely as is reasonable in the circumstances". The wording used in the Bill is not intended to limit the scope of consultation. It will of course be important to seek the views of all those with an interest before any change is made. If Parliament is not satisfied with the degree of consultation in any particular instance, then it will be able to indicate that under the affirmative resolution procedure. Therefore, I believe that Amendment No. 141D adds nothing further to the existing provision.

Amendment No. 141E provides that an order for variation would apply only to claims arising after the date of the commencement of this section. Amendment No. 141EA has a similar effect but limits the application of an order further—that is, to injuries which occur after the date of commencement. Although I recognise the general concerns of defendants and insurers on the "retrospective" effect of legislative change, the initial order will be no more than is provided for under the current system of provisional damages. I understand that those damages cause no difficulty at present.

In those circumstances, where it is known that there is a chance of medical deterioration in the future, compensation is now paid, one way or another, either as provisional damages or built into the award as a contingency payment. As I explained, this latter practice may well lead to overcompensation overall while leaving some people who need it undercompensated. Where the court makes a variable periodical payment order, insurers should be able to reserve or reinsure against that, as they do now with provisional damages orders.

If the provisions relating to the court's power to vary periodical payments applied only to claims arising or injuries occurring after the date of commencement, it could be several years before the provisions took effect. In the meantime, awards would continue to have to include provision for events which might never occur in cases where a variable order might be more appropriate. The precise transitional arrangements for the provisions regarding periodical payments have yet to be settled.

However, I can say now that the relevant clauses of the Bill will not apply to claims concluded by its implementation date. I hope that that statement will give the noble Lord, Lord Hunt, the clarity and assurance that he needs in relation to this difficult and, I accept, testing issue.

While I understand the need for suitable insurance products to fund variable periodical payments, it is not practical to require the Lord Chancellor to be satisfied with all the arrangements that might be put forward by defendants before the provisions come into effect, as Amendment No. 148A would require. Under the intended terms of the initial order, the possibility of variation will be known at the time of the original court order. As I have said, insurers should be able to reserve or reinsure against that.

In addition, the court will have to be satisfied before making a periodical payments order that the continuity of the payments is reasonably secure. It would be open to the defendant to inform the court if the terms of an order would cause particular difficulties. In the event that a second order under the order-making power was considered, the need for different funding options would undoubtedly be taken into account and consulted upon. I therefore invite noble Lords not to press those amendments.

I have tried to answer comprehensively, because these are difficult issues. There has been a lot of worry and concern among all parties about how they will operate, but I hope that there is now sufficient clarity for noble Lords to be comfortable that these are sound provisions that they can support.

6.45 p.m.

Lord Goodhart

I am obviously grateful to the Government for accepting Amendment No. 141A. We shall have to return to Amendments Nos. 141ZA and 141B, together with other amendments in the name of the noble Lord, Lord Hunt, no doubt, because there is still some difference of opinion between us. I am particularly concerned that it is desirable in everybody's interests that the restrictions on the making of orders should be parallel with those in relation to provisional damages and that that should be on the face of the Bill.

Lord Hunt of Wirral

This has been a very important debate. We have spent over an hour productively. There have been some very important speeches. I congratulate the noble Baroness, Lady Finlay, on her moving account of the serious problems that could be caused to rehabilitation. She gave us a practical insight into some of those difficulties. With great experience behind her words, that was of great benefit to the Committee. I congratulate the noble Lord, Lord Goodhart, on his points. If he had not tabled the amendment to delete subsection (4), I would have done so. I therefore share his delight about the Minister's agreement to delete that subsection, although the noble Lord must take the credit.

My noble friend Lord Renton made an important point, although it was helpful to have the contribution of the noble and learned Lord, Lord Donaldson, to put it in context. We shall have to consider further the point raised by my noble friend. On the face of it, his interpretation of events looks reasonable, but I take the point of the noble and learned Lord, Lord Donaldson, that that may not be the effect and we must look at the issue further. I thank my noble friend for his comments.

I praise the noble Baroness, who has given the Committee a meticulous and reassuring response. As she knows, there have been some serious concerns. Her statement in summing up this wide-ranging debate will give comfort to those who have had serious cause for concern. She did not answer all the points, but I welcome the wording that she has used, in particular the adoption of a cautious approach to variation, the circumstances that she has clearly set out and the way in which she has made clear that the relevant clauses will not apply to claims concluded by the implementation date of the Bill. That series of matters is of enormous importance. We must now take time to examine carefully what the noble Baroness has said. I believe that I could summarise by saying that she has done much to reassure those who had cause for concern. It is now our task to set her words against the terminology of the Bill to ensure that it has the effect she seeks.

Sadly, rising stars do not stay in the same place for very long. I am sure that the noble Baroness, when she looks down on us from a new Cabinet position in the short time—I suppose I must say—left for the Government, she will understand that we must make sure that the legislation will apply to her successor of whichever colour. It may well occur that her successor does not share her views that it should be as restricted as she has announced, particularly in later form. I hope she will now give us an opportunity to think carefully about what she has said this evening, but we thank her for her reassuring words. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 140A not moved.]

[Amendment No. 140B had been withdrawn from the Marshalled List.]

[Amendment No. 140C not moved.]

[Amendment No. 141 had been withdrawn from the Marshalled List.]

[Amendments Nos. 141ZA and 141ZB not moved.]

Lord Goodhart moved Amendment No. 141A: Page 46, leave out lines 17 and 18.

On Question, amendment agreed to.

[Amendments Nos. 141AA to 141EA not moved.]

Baroness Scotland of Asthal moved Amendment No. 141F: Page 47, line 12, after "court" insert "in so far as it is

The noble Baroness said: My Lords, in moving the amendment, I shall speak also to the other amendments in the group. It is intended that the Bill should maintain the present position that periodical payments in respect of personal injury are exempt from income tax. The amendments ensure that the provisions of Clause 92 accurately achieve this.

Amendments Nos. 141F, 141G, 141H and 141K clarify that the tax exemption for periodical payments paid in respect of personal injuries does not extend to other types of damages.

Amendments Nos. 141J, 141L and 141M clarify that periodical payments made by the Motor Insurers' Bureau, which compensates the victims of uninsured and untraced drivers, are tax exempt.

Amendments Nos. 141P, 141Q and 141R reflect these changes in the definition of "periodical payments" in Clause 93. They appear on the Marshalled List under Clause 92, but that should be Clause 93.

Amendments Nos. 141N and 153 remove subsection (8) from Section 329AA of the Income and Corporation Taxes Act 1988, because the terms it applies no longer appear in the section as amended. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 141G to 141N: Page 47, line 13, at end insert ", or Page 47, line 14, leave out "settling" and insert "in so far as it settles Page 47, line 16, leave out from "varied)," to end of line 22. Page 47, line 26, leave out "and" and insert—

Page 47, line 32, leave out "and Page 47, line 36, at end insert— , and
  1. (c) the reference to an agreement in so far as it settles a claim or action for damages in respect of personal injury also includes a reference to an undertaking given by the Motor Insurers' Bureau (being the company of that name incorporated on 14th June 1946 under the Companies Act 1929), or an Article 75 insurer under the Bureau's Articles of Association, in relation to a claim or action in respect of personal injury.""
Page 47, line 36, at end insert— , and.
  1. (d) omit subsection (8)."

On Question, amendments agreed to.

Clause 92, as amended, agreed to.

Clause 93 [Periodical payments: security]:

Baroness Scotland of Asthal moved Amendments Nos. 141P to 141S: Page 48, line 34, after "court" insert "in so far as it is Page 48, line 35, at end insert ", or Page 48, line 36, leave out "settling" and insert "in so far as it settles Page 48, line 37, leave out from "varied)," to end of line 42 and insert—

  1. "(6) In subsection (5)(b) the reference to an agreement in so far as it settles a claim or action for damages in respect of personal injury includes a reference to an undertaking given by the Motor Insurers' Bureau (being the company of that name incorporated on 14th June 1946 under the Companies Act 1929), or an Article 75 insurer under the Bureau's Articles of Association, in relation to a claim or action in respect of personal injury.""

On Question, amendments agreed to.

Clause 93, as amended, agreed to.

Clause 94 [Power to alter judicial titles: Northern Ireland]:

[Amendment No. 142 not moved.]

Clause 94 agreed to.

Baroness Scotland of Asthal moved Amendment No. 142A: After Clause 95, insert the following new clause—

"ALTERATION OF PLACE FIXED FOR CROWN COURT TRIAL: NORTHERN IRELAND An application under section 48(3) of the 1978 Act (application for variation of place fixed for Crown Court trial) is no longer required to be heard in open court; and accordingly section 48(4) of the 1978 Act ceases to have effect.

On Question, amendment agreed to.

Clause 96 agreed to.

Clause 97 [Rules, regulations and orders]:

[Amendment No. 143 not moved.]

Baroness Anelay of St Johns moved Amendment No. 144: Page 52, line 1, after "made" insert "under section 31(4) which contains provision of the type specified in section 31(5) or

The noble Baroness said: I hate to spoil the party after such a long run of amendments not moved or formally moved. I shall speak to an amendment for a change. Earlier in the Bill, some weeks ago, we debated the pilot schemes for fines enforcement that will be launched under Clause 31 and Schedule 2. Orders made under Clause 31(4) allow pilot schemes to be introduced in particular areas and, in relation to those areas, may modify Schedule 2 or any enactment in connection with its operation.

When the Select Committee on Delegated Powers and Regulatory Reform considered the matter, it said that it would accept that delegation was appropriate as would be the negative procedure. But it said that that would be in the context of Parliament approving the idea of pilot schemes as proposed in the Bill. The difficulty is that, when we debated those matters some weeks ago, noble Lords demonstrated significant concerns about the operation of the new pilot scheme. We share the Government's objective of trying to ensure that fines collection is far more effective and efficient than at present. But considerable concerns were expressed about the manner in which the Government intend that the new scheme should come into operation.

So the reason for tabling the amendment is to ask the Minister whether she has taken the opportunity in the intervening weeks since our last debate to reflect further on whether the negative procedure might be appropriate in this matter, and, if she has so reflected, to share her conclusions with the Committee. If she has not had the opportunity so to consider, will she undertake to do so before we reach the matter, as we surely shall, on Report? I beg to move.

7 p.m.

Lord Bassam of Brighton

As the noble Baroness explained in moving the amendment, it would make a modification to ensure that pilot schemes were subject to the affirmative resolution procedure.

We have given the matter careful thought, and we fully understand the interest in the details of the proposed arrangements that prompted the amendment. The enforcement measures are a radical departure from existing practice, and the Government believe that they should be thoroughly tested before implementation. There would be little merit in piloting the measures unless it were possible to change or even abandon elements of the package that did not work as intended. Pilots will be carried out immediately following Royal Assent, during late 2003 or early 2004, with the aim of introducing the fines collection scheme as soon as possible following evaluation.

The pilots will allow different elements of the scheme to be tested in different areas so that their effectiveness in improving the payment rate can be evaluated. For example, a discount for prompt payment and/or an increase for default may be piloted in one area; wheel clamping or registration of the debt as sanctions for defaulters may be piloted in another.

As the Bill stands, the Lord Chancellor may, once the pilot schemes have been evaluated, make an order under Clause 31(8) modifying Schedule 2 and associated legislation in the light of experience of the pilots. That final package, which may still be the whole scheme as presently envisaged or a modified scheme, would then be put to Parliament for approval under the affirmative resolution procedure before being rolled out nationally. That approach will enable the Government to bring forward a package of tried and tested measures that, we can be sure, will deliver the improvements in performance that the Committee will want to see.

Amendment No. 144 would make the piloting of the schemes, details such as which parts of the scheme were to be piloted in which area and any temporary change to enactments to allow the pilots to take place subject to affirmative resolution. The Select Committee on Delegated Powers and Regulatory Reform found that the power as a negative resolution had been appropriately delegated.

The final package will be subject to the affirmative resolution procedure, and that provides the necessary flexibility. I repeat that the Select Committee found that, in this instance, the negative resolution procedure was as appropriately delegated. We are not providing a blank cheque, and there is an opportunity to have a full and detailed debate on the details of the final scheme. We think that we have covered the concerns that the noble Baroness understandably raised in moving the amendment.

Baroness Anelay of St Johns

I am grateful to the Minister for that explanation. It goes further than was possible when we covered the matters in a grouping on the operation of the pilot schemes.

I remind the Minister that the Select Committee put its approbation of the negative procedure in the context that it applied only if Parliament approved the pilot scheme, which we have not yet done. That is why I do not wish to take the matter further, even if I disagreed wholly with the Minister, which I do not.

I shall consider the Minister's explanation in the light of the discussions we shall have on Report. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 144A: Page 52, line 2, after "officers)" insert ", section 68 (power to amend legislation in connection with Criminal Procedure Rules) or section 75 (power to amend legislation in connection with Family Procedure Rules)

The noble Baroness said: In moving Amendment No. 144A, I shall speak to Amendment No. 145. Clauses 68 and 75 contain powers for the Government to amend legislation in connection with criminal and family rules respectively. At the moment, they are subject only to the negative resolution procedure. Our view is that that is inadequate, and the Select Committee on Delegated Powers and Regulatory Reform agreed with that view in its second report, dated 11th December, 2002.

I simply tabled Amendment No. 144A in order to ask the Government when they intend meeting the commitment that they have already given on this matter to the Delegated Powers and Regulatory Reform Committee—in their response to the Committee's report on the Bill at Annex 2 of the seventh report of the Committee—and the commitment given by the Minister on 11th February at col. 658.

After hearing the commitment made by the Minister on that date, I eagerly awaited sight of a government amendment. However, naturally patient as I am in all matters, last week I gave up on patience and tabled my amendment.

Earlier today the Minister was gracious enough to accept another amendment. I live in hope that she might accept this one. However, if she is unable to do so, I should love to know why the drafting is wrong and why the Government are to table an amendment at a later stage—or, indeed, if they will bring one forward.

I shall speak briefly also to Amendment No. 145, grouped with Amendment No. 144A. I tabled this amendment in response to paragraph 17 of the Select Committee's report. We have debated at length the Government's plans to divide England and Wales into administrative areas to be known as local justice areas. That is dealt with in Clause 8.

Clause 97(4)(a) states that the first order under Clause 8 shall be laid before Parliament only. In other words, it is not subject to the affirmative or, indeed, the negative procedure. Subsequent orders under Clause 8 will be subject to the negative procedure, as set out in Clause 97(5). The reason for the Government doing that is that the first order, will simply be renaming petty sessions areas as local justice areas and will not change any boundaries". But, as the Committee points out, the power to make the first order is not limited in this way. The Committee goes on to state that it considers that unless it is so limited, there is no reason why the first order should not he subject to the same procedure as subsequent ones. I agree on that matter too. It is another case in which it is to be hoped that the Minister will say that she will accept the amendment or, indeed, return with a better drafted amendment. But how on earth one could draft something better than leaving out paragraph (a), I shall live and learn! I beg to move.

Lord Goodhart

Amendment No. 146 standing in the name of my noble friend Lord Thomas of Gresford and myself is also in this group. It deals with the statutory instruments made for the purpose of changing court fees. The existing position is that an order to vary fees must be laid before Parliament. It is not subject to any parliamentary scrutiny and it cannot be prayed against.

Clause 87, taken together with Clause 97(4) would keep the existing position. The Delegated Powers and Regulatory Reform Committee criticised this and recommended that a fees order should be subject to the negative procedure and so could be prayed against. In response to the Committee, the noble and learned Lord the Lord Chancellor said in his letter: The Committee was also concerned about the scrutiny afforded to Clause 87. allowing the Lord Chancellor to set fees by order. I have carefully considered the views of the Committee and agree that it would he preferable that this clause be subject to negative resolution". This amendment does exactly that. It takes the order under Clause 87 out of the list of orders referred to in Clause 97(4) which lists those amendments which are not subject to parliamentary procedure.

Orders relating to fees under Clause 87 would then fall to be covered by Clause 97(5) which applies the negative resolution procedure to all statutory instruments not otherwise dealt with. As the Government have not put down their own amendment I hope that they will accept ours. I, too, support the noble Baroness, Lady Anelay, in her Amendments Nos. 144A and 145.

Lord Bassam of Brighton

I think that I shall make noble Lords happier, though I feel rather mean because I believe that my noble friend Lady Scotland should be doing so having toiled as long as she has today.

I shall work through each of the amendments in turn. Amendment No. 144A is similar to an amendment tabled earlier in Committee. On that occasion, I said to the noble Lord, Lord Goodhart—at col. 658 of the Official Report of 11th February 2003—that it was the Government's intention to follow the recommendation of the Select Committee on Delegated Powers and Regulatory Reform with regard to Clauses 68 and 75.

The Select Committee on Delegated Powers and Regulatory Reform reported that it was not satisfied that the Government had made the case for the negative resolution procedure in those clauses. As a consequence, in January the Lord Chancellor responded to the noble Lord, Lord Dahrendorf, stating that he accepted the recommendation and would consider an appropriate amendment to the clause.

I want to reassure noble Lords once again that this remains the Government's intention. We shall bring forward an amendment to the Bill on Report addressing the issue. The amendment will provide that any order made under these clauses to amend or repeal primary legislation would be subject to the affirmative resolution procedure. I hope that the noble Baroness will feel able to withdraw her amendment.

The effect of Amendment No. 145 would be to make the first order made under Clause 8 setting up local justice areas subject to the negative resolution procedure. We are grateful to noble Lords for raising the matter. If the amendment has been prompted by concerns that the Lord Chancellor would radically alter local boundaries when making the first order under Clause 8, then the amendment is unnecessary. I can assure noble Lords once again that the boundaries of local justice areas will be the same as those of petty session areas when the new arrangements set out in the Bill come into operation.

As I said during our debate on Amendment No. 35, we shall spell this out in the transitional provisions of the Bill to be introduced as a government amendment. Current petty session area boundaries are of course subject to changes made by magistrates' courts committees using the existing procedures. In our view it is not necessary to make the first order under Clause 8 subject to any parliamentary procedure.

Finally, I turn to Amendment No. 146. Its effect would be to make orders under Clause 87 subject to the negative resolution procedure. The current, separate fee-setting powers for each of the three tiers of courts are not subject to parliamentary scrutiny and Clause 87 sought to replicate that position. However, following the reports of the Select Committee on Delegated Powers and Regulatory Reform and the Human Rights Select Committee, along with the views wisely expressed by the noble Lord, Lord Goodhart, in his remarks at Second Reading, the Lord Chancellor has considered the matter again and has determined that it would be preferable if this clause was subject to the negative resolution procedure.

While the Government agree with the principle behind the noble Lord's amendment, I am afraid that, as currently drafted, it is technically deficient. On page 52 of the Bill, the word "or" should be inserted at the end of line 6, while the word "or" should be deleted at the end of line 8, in addition to the noble Lord's proposal to omit paragraph (c) in line 9.

I can confirm that the Government intend to bring forward an amendment on Report to achieve the same effect and I therefore invite the noble Lord not to press his amendment.

Baroness Anelay of St Johns

We wait with bated breath to see what superior drafting the Government bring forward, but we welcome the commitments just made by the Minister. However, I am little concerned with regard to his response to Amendment No. 145 when he spoke of the government amendment being part of a package of transitional provisions. Naturally we shall want to look at that to ensure that it properly covers the point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 145 and 146 not moved.]

Clause 97 agreed to.

Clause 98 [Minor and consequential amendments, repeals, etc.]:

Baroness Anelay of St Johns moved Amendment No. 147: Page 52, line 31, at end insert— ( ) An order under subsection (3) shall not be made until a draft has been laid before both Houses of Parliament and approved by a resolution of each House.

The noble Baroness said: In moving the amendment, I shall, with the leave of the Committee, speak to Amendment No. 148 and also to Clause 98 stand part. I appreciate that I shall take a little longer than is usually the case when moving amendments, but I thought it appropriate to group these together and, it is hoped, knock the matter on the head today rather than take up time on Report. I hope to reach a position where I shall not need to return to this matter at the next stage.

I tabled Amendment No. 147 because I was concerned that the Government thought that the negative procedure would be appropriate for future amendments to primary legislation in connection with the Bill. It is important that changes to primary legislation are made by affirmative order. I have raised these matters in the presence of the noble Lord, Lord Bassam, during our previous debates on the Crime (International Co-operation) Bill. I have not done so within the context of this Bill.

The Delegated Powers and Regulatory Reform Committee points out that Clause 98 enables the Lord Chancellor to lay orders to make any supplementary, incidental or consequential provision and any transitory, transitional or saving provision which he believes is necessary or expedient for the purposes of, in consequence of, or for giving full effect to any provision of the Bill. That includes the power to amend or repeal primary legislation. But these orders are only subject to the negative procedure. So the committee's conclusion is that in view of the fact that orders under that section may amend or repeal primary legislation, the Committee may wish to consider whether the negative procedure under this section is justified.

I have concerns overall about Henry VIII clauses. I was very intrigued to note the suggestion of the chairman of the Select Committee, the noble Lord, Lord Dahrendorf, in the debate on 14th January. He spoke not as chairman, but as an individual giving his personal views. He said that the debate on these matters, goes right to the heart of the key constitutional question of the limits of executive power, and of the ability as well as the duty of Parliament to prevent the unchecked extension of these limits"".—[Official Report, 14/1/03; col. 165.]

He went on to raise the question of whether there should be sunset clauses on such matters.

My questions relate to issues which arose from that debate. I begin with the last first, which is the matter of sunset clauses. I appreciate that the delegated powers committee has a further special report on such clauses, which would be valuable. I ask the Minister to undertake that the Lord Chancellor's Department reviews very carefully the use of sunset clauses and how it might concentrate the minds of Ministers as regards the proper drafting of Bills. As ever, I do not point the finger of blame at those who physically draft the Bills. They are at the mercy of Ministers who change their minds at the last minute, sometimes with good reason, but sometimes not. Has the Lord Chancellor's Department any intention to review the possible good uses of sunset clauses?

I have two specific questions which relate to the issues raised by the scrutiny committee. The first is as regards the presumption in favour of the affirmative procedure. The committee recommended this. As regards this Bill, it said at that stage that if the Government choose the negative procedure they should give their reasons in full before departing from the affirmative procedure and the Explanatory Notes. Why should these notes precede the comments of a Select Committee?

The question is whether in future the Lord Chancellor's Department will be of good behaviour or be bound over, so to speak. However, I understand now from Europe that we are not allowed to say that. I shall be a recidivist and keep to the old wording for the time being. Could the Government give an assurance that the LCD will follow the committee's recommendation on that matter?

As regards the wording of such clauses, the committee accepted that they could not always follow a standard form, but it was persuaded that when the Government drafted the Explanatory Notes they should offer an explanation of the reasons why a particular form of wording has been used in each case for a Henry VIII clause. Will the Lord Chancellor's Department follow that procedure in future if there is another blockbuster Bill or a teeny-weeny one? I hope that it is going to follow good practice on that. I beg to move.

Lord Bassam of Brighton

We are grateful to the noble Baroness for tabling this amendment, which raises wider issues surrounding delegated powers contained in legislation of which the Government are well aware. The Government are keen to take seriously the views of all those with an interest in powers of this nature, particularly those of the Delegated Powers and Regulatory Reform Committee. Indeed, the report of the noble Lord, Lord Dahrendorf, published on 11th December last year was welcomed by the Lord Chancellor in his letter of 6th January. We agreed to address all of the committee's concerns. We have given that undertaking. As I am sure the Committee is aware, the Delegated Powers and Regulatory Reform Committee, in its special report on delegated powers, recommended a, presumption in favour of the affirmative procedure", for such powers. My noble and learned friend Lord Williams, in response to the report, expressed the view that each case should be looked at individually; and, in this case, we agree that amendments to primary legislation should be subject to the affirmative procedure. To this end, we intend to bring forward a government amendment which will subject all orders by the Lord Chancellor amending primary legislation under Clause 98 to the affirmative resolution procedure. It would clearly not be sensible to subject amendments to statutory instruments to the affirmative resolution procedure. I am sure that that is not the intention of the noble Baroness, although it would be the result were the amendment to be accepted.

Amendment No. 148 proposes that orders made by the Lord Chancellor for supplementary, consequential and transitional provisions be limited to a period of three years following the passing of the Act.

I do not think that we can be quite so accommodating on this amendment as on the previous one. The provision under Clause 98, as I am sure the noble Baroness will be aware, is necessary for a number of reasons. Given the scale of the consequential amendments necessitated by the Bill, we believe that a clause of this nature is unavoidable. It is impossible to know which other Bills in the current parliamentary Session will receive Royal Assent before the Courts Bill. This could mean that Bills containing, for example, references to petty sessions areas could be enacted before provisions in the Courts Bill, requiring a consequential amendment.

We believe, therefore, that imposing an arbitrary time limit on this provision could impair the effectiveness of the Bill. It is, unfortunately, impossible to ensure that all references to petty sessions areas, for example, are dealt with before the expiry of, say, a three-year period. Noble Lords may be amazed to learn that we have identified some 1,025 different references to petty sessions in primary and secondary legislation, all of which would need to be dealt with, whether by the Bill or by orders made under it. It is not simply a matter of substituting one phrase for another in every case. Some legislation dates back to the 19th century and is not easy to amend. As your Lordships can imagine, guaranteeing that we covered every single reference would be something of a major exercise, and, were one to be identified at a later stage, the amendment would mean that a suitable opportunity would have to be found to amend the relevant statute by primary legislation.

I would, however, like to reassure the noble Baroness that the scope of this order-making power is limited and will be used only to make minor supplementary, incidental or consequential amendments or transitional provisions. It is our intention to be specific in using the power. It would not be possible for an order made under this clause to make amendments to legislation introducing new policy.

In addition, as it is our intention to make orders which amend primary legislation subject to the affirmative resolution procedure, this House will have the opportunity to debate any such amendments whenever made. I hope that that reassurance and the explanation I have given go some way towards satisfying the noble Baroness and that she will feel able to withdraw the amendment.

The noble Baroness asked whether the Lord Chancellor would keep these matters under review. Yes, of course, the Lord Chancellor will keep all the matters relating to sunset clauses and so on under very careful review.

Baroness Anelay of St Johns

I am grateful to the Minister for his helpful and thorough response. I, too, shall keep matters under review, in particular as regards good behaviour on what should or should not appear in the Explanatory Notes.

I am grateful to the Minister for telling us about the scale of consequential amendments necessitated by the Bill. It chills the heart and numbs the brain to think of the numbers that he has thrown at us. How I look forward to them! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 148 to 148A not moved.]

Clause 98 agreed to.

Schedule 6 [Minor and consequential amendments]:

Lord Donaldson of Lymington moved Amendment No. 149: Page 104, line 19, at end insert—

"Judicial Pensions and Retirement Act 1993 (c. 8)

In section 26 (7) (retirement date for holders of certain judicial offices etc.)—

  1. (a) at the end of paragraph (a), insert the words "or a person who has been a Lord of Appeal in Ordinary or a judge of the Court of Appeal";
  2. (b) at the end of paragraph (b), insert the words "or a person who has been a Lord of Appeal in Ordinary or a judge of the Court of Appeal"; and
  3. (c) at the end of paragraph (c), insert the words "unless he is a person who has been a judge of the Court of Appeal"."

The noble and learned Lord said: There have been many times when I wondered whether this day would ever come. The provision was the last amendment. It has been overtaken by some later amendments. But the day has now come and I am very happy to move the amendment.

Let me clarify that where the amendment states, In section 26(7) (retirement date for holders of certain judicial offices etc.)",

we are not concerned with retirement dates but 'with "etc". Section 26(7) of the Judicial Pensions and Retirement Act 1993 states: After the day on which a person attains the age of 75, he shall not hold any relevant office nor shall he—

  1. (a) be a member of the Judicial Committee of the Privy Council…
  2. 1023
  3. (b) participate in the hearing and determination of any appeal, or any petition for leave to appeal, to the House of Lords, unless he is the Lord Chancellor;
  4. (c) act as a judge under or by virtue of section 9(1) of the Supreme Court Act 1981".

My amendment does not affect the question of whether anyone shall continue to hold a relevant office after the age of 75 because it refers throughout to former holders of office.

So when one strips it down, one comes to this position: if the amendment is agreed, we shall restore the position to that which existed when I ceased to be Master of the Rolls in 1992 whereby, when pressed for judicial manpower, it is open to the Master of the Rolls to invite those who have retired, usually recently retired or who have been appearing recently as members of the court, to assist on a daily basis.

The great saving grace of that system was that particular retired lords justices could not arrive suddenly and say, "Now I should like to sit" if the Master of the Rolls had grave doubts about whether age had overtaken their usual faculties. So there was no problem about that. In my experience I thought it right—no one has ever suggested that I was wrong in this respect at least—to invite Sir John Megaw and Sir David Cairns to sit from time to time, often at very short notice (a matter of hours) in the Court of Appeal. I gave up inviting them when they each reached the age of 84, not because they were not as bright as buttons (if I may use the expression) but because they themselves felt that perhaps the age of 84 might create some criticism if anyone ever discovered it. No one ever did discover it because it was certainly not apparent from the way in which they framed judgments and so on. That is what I suggest, but it is a matter not for me but for the Master of the Rolls, the noble and learned Lord, Lord Phillips. When I spoke to him on this matter, he said that he was in favour, as he is very pressed indeed.

I hope that the amendment commends itself to the Minister. I should make it clear that, prima facie, I have a considerable interest in this matter because it would enable me to sit as a member of the judicial member of the Privy Council and as a Member of this House judicially, which I have never done. I could also go back to the Court of Appeal. However, let me make it clear that wild horses—including the Master of the Rolls—will not drag me back. When one has not done that kind of thing for 10 years, the strain of doing it again would be overwhelming. The amendment intends to enable those who have recently retired to be brought in and to help out. If they have kept their skill up, those of a considerably greater age might be invited to come back. But that is a matter for the Master of the Rolls, not for me.

Having declared my interest and negatived that interest, I beg to move.

7.30 p.m.

Lord Borrie

I commend the noble and learned Lord for introducing the amendment. It is not surprising that a number of people in this House are not keen on compulsory retirement ages. I commend the noble and learned Lord for striking a blow at compulsory retirement ages. For example, the age of 60 for civil servants is absurdly young.

On the other hand, of course—and I am sure that the noble and learned Lord will agree with me, although I have not discussed it with him—there is a particular justification for a compulsory retirement age for High Court judges.

Lord Donaldson of Lymington

I did, I hope, make it clear that I was not striking blows in relation to retirement ages. I referred only to post-retirement.

Lord Borrie

I am not sure that I have fully understood the difference. If the noble and learned Lord intervenes in the course of my remarks, I shall happily give way to him.

I believe that he will agree with me that there is a particular justification for the existence of a compulsory retirement age for High Court judges, which has existed since 1959. They enjoy a substantial security of tenure, which is justified in its turn by the constitutional imperative to ensure the independence of the judiciary. High Court judges, as all your Lordships know, may be dismissed only by a vote of both Houses.

The difficulty before a compulsory retirement age was introduced was that, inevitably, some judges who did not appreciate their declining abilities stayed in their posts for too long. Professor Robert Stevens was, until recently, the Master of Pembroke College, Oxford. After delving into the records of the Lord Chancellor's Department, he wrote of the very great difficulties that successive Lord Chancellors and their Permanent Secretaries have had when struggling to ease out judges who were past their prime.

The late Lord Denning referred in his memoirs to a High Court judge in the 1950s who was strongly criticised by the Court of Appeal for his unusually extensive questioning of counsel. The then Lord Chancellor arranged for the judge to continue to sit for a little while and then to resign, which he did a few months later.

The extension of the service of a judge for a certain period, after the compulsory retirement age of 70, depends no doubt on careful consideration by the Lord Chancellor's Department in consultation with senior judges. If a judge is asked to continue to sit as a judge until he is, let us say, 75, his sitting does not depend on the decision of the judge himself; it is of course a request that is periodically renewed by the Lord Chancellor's Department.

However—I mention this because it was the view of the Peel Commission, in 1936—there is at least a theoretical risk that the power to extend a judge's judicial life may be used as a means of control over judges. He will get the opportunity, he may think, to continue to be asked to sit only if he acts in a way that he thinks the authorities would approve of. In 1936, the Peel Commission—on which some distinguished judges sat; it was chaired by a former member of the Cabinet, who I think was the first Earl Peel—thought that any such power to give a conditional extension to a judge's judicial life was undesirable.

Unfortunately, the noble Lord, Lord Lester of Herne Hill, is not in his place. I have not discussed it with him. but he might say that the European Convention on Human Rights is not being complied with if judges can continue to sit on the say-so of the Lord Chancellor's Department or of particular heads of particular courts. That service can, of course, be discontinued. I have great sympathy with the flexibility of Amendment No. 149, but I wonder how it would fit with the European Convention on Human Rights.

Although the noble and learned Lord himself referred principally to the example of the Master of the Rolls—a position which he held, as we all know—asking judges to continue to sit from time to time, his amendment is much wider than that and refers to other courts including, as he himself mentioned, the Judicial Committee of the Privy Council. I myself see no reason why a judge beyond the age of 75—into his eighties, if you like—may not be perfectly fit. But I am not sure that I like the idea of judges being allowed to sit only on the say-so of senior judges or the Lord Chancellor's Department. I am not sure that I see that as fitting in with the principle of an independent judiciary.

Lord Donaldson of Lymington

Perhaps the noble Lord will accept it from me, first, as I said, that this amendment has nothing whatever to do with retirement; and, secondly, that the retirement age is not 70 for a large number of judges. Anyone appointed after 1993, I suppose—I forget the exact date—is subject to 70. Up to that date, the age is 75. As for the noble Lord's idea that any sort of pressure would be exerted on a retired Lord Justice because of the possibility that the Master of the Rolls might not wish to ask him back to the Court of Appeal, all I can say is that he can never have met them.

Lord Borrie

Of course the noble and learned Lord is absolutely right. However, it is a matter of perception. I can assure him that the Peel Commission, in the 1930s, was worried about that risk. He may also think that the European Convention on Human Rights is somewhat concerning in this respect.

Baroness Anelay of St Johns

The noble and learned Lord, Lord Donaldson, has instigated a very interesting debate. I am much struck by his argument that flexibility may be needed to call upon those who have great experience, and to do so at fairly short notice. However, there is a question that I must put to the Minister. If the Government feel that they cannot accede to the request of the noble and learned Lord—if so, we would be interested to hear their reason—can they give an assurance that sufficient numbers of the judiciary will be able to perform the necessary tasks? I note that there was recently a statutory instrument from the Lord Chancellor's Department to increase the number of judges by two. In response to my noble friend Lady Seccombe, the reason given concerned the huge increase in judicial review appeals regarding asylum. One can see greater volume arising in that way, so there may need to be not only greater flexibility but more full-time appointments. If the Minister cannot accede to the noble and learned Lord's request, one hopes that she will be able to assure the House that there will be sufficient numbers of the judiciary to perform the appropriate work.

I end by wishing the noble Lord, Lord Borrie, a happy 72nd birthday this month—proving the noble and learned Lord's point that 70 is no bar to effective service.

Lord Goodhart

My Lords, I have some sympathy with the amendment. One of the greatest 20th-century judges in the common law world, Oliver Wendell Holmes, was not appointed to the American Supreme Court until he was in his 60s. He continued to sit with no loss of skill until he was past 90. So there are cases where persons of advanced age can continue to add to the court.

I take the point of the noble Lord, Lord Borrie, about the International Convention on Human Rights, but it has not been suggested that the present system—by which former judges can be called upon to sit between their retirement age and 75—contravenes the convention. I imagine that is because the selection of panel members is in the hands of other judges, not of the Lord Chancellor or the Lord Chancellor's Department.

Baroness Scotland of Asthal

My Lords, this has been an enlightening debate. I hope that your Lordships will not think that I am burdened by youth when I comment that having witnessed the performance of the noble Lord, Lord Renton, this evening, anyone who claims that one reaches one's prime before the age of 92, 93 or 94 might be much mistaken.

I understand entirely the purpose of the amendment so eloquently moved by the noble and learned Lord, who is right that the facility to invite skilled judges to sit when the need arises was much taken advantage of before 1993. I am not surprised by the noble and learned Lord's comments in relation to the acceptance by the current Master of the Rolls that it might be a tempting consideration.

I assure the noble Baroness that there are sufficient judges to meet current needs—and the Lord Chancellor, as already demonstrated by a recent order, will take steps to enhance their number if further needs are identified. The Court of Appeal has made significant improvements in minimising delay and the momentum is being maintained through continued skilled management.

I recognise the noble and learned Lord's concerns in seeking to exempt former Lords of Appeal and Court of Appeal judges. I am also conscious that in passing the 1993 Act, Parliament sought to strike a delicate balance in sensitive constitutional territory. Earlier decisions may need reappraisal in light of developments. Your Lordships will know that a European Council directive establishing a general framework for equal treatment in employment and occupation in terms that, it is believed, encompass the judiciary includes provisions to prevent discrimination on the basis of age. Domestic implementation is required by 2006 and careful consideration will be given to how the age provisions are to be implemented. The continuing relevance of the retirement regime established by the 1993 Act will form part of that consideration.

I believe therefore that it will be preferable to address age-related restrictions as a single exercise rather than through piecemeal changes to existing arrangements. Of course I bear in mind the historical references made by my noble friend Lord Borrie; the importance of preservation of independence and the need to give certainty. Those issues will have to be taken into account when these matters are reconsidered.

There is no way to diminish the qualities that continue to be displayed in abundance, as on this occasion, by the noble and learned Lord, Lord Donaldson, and other noble Lords who left the 75-year mark behind a little time ago. I endorse everything the noble Baroness, Lady Anelay, said about the performance of my noble friend Lord Borrie. He is a mere youth and there is much to expect from him, as indeed there is from the noble Baroness, Lady Seccombe, whom I see in her place. I had the great pleasure of telling her earlier how surprised I was when she said that she is now a retired magistrate. I rightly expressed my disbelief that that could be so.

I hope that the noble and learned Lord will withdraw his amendment. He has had to wait a long time. This issue should and could be looked at again before 2006 when we come to consider the implementation of the directive.

7.45 p.m.

Lord Donaldson of Lymington

Once again kind flattery by the Minister gets me nowhere. In 1993 ageism was on the ascendant. The position is entirely changed now. It is ridiculous to say, "Oh well, this is piecemeal. We have to look at it all in the light of a European directive". What does it have to do with Europe? It is our judicial system. The Master of the Rolls says that he wants to do this and I have no reason to doubt him. I do not want anyone to be misled by the Minister's perfectly bona fide assurances that orders will be brought forward—as they have been recently—to increase the number of judges.

I have lived with this situation for 10 years. What happens is that under extreme pressure the Lord Chancellor brings forward an order for the number of judges—I forget what it is called. That looks fine. The trouble is that it is subject to the Treasury's consent and the Treasury does not give consent, so it is purely a paper transaction. The matter should have been dealt with straightaway. Whether there will be sufficient support at a later stage to divide the House I do not know; I do not command any battalions, so I have to leave it to others. But it is a great pity.

I am 82 now. I hope to live until 2006, but the matter should be dealt with long before then in the interests of doing things for a mass of people who will probably have different objectives. This is a unique body where it is left to independent people to decide whether they should continue giving service to the state. Nowhere else is that true. I beg leave to withdraw the amendment. I hope that before the Bill leaves this House something can be done about the matter.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Schedule 7 [Repeals]:

Lord Hunt of Wirral moved Amendment No. 150: Page 107, line 34, at end insert— Law Reform (Personal Injuries) Act Section 2(4)." 1948 (c. 41)

The noble Lord said: In view of the limited time I have in which to move the amendment, I merely point out that representations have been received from a range of bodies, especially those in the National Health Service, to the effect that the old 1948 provision should be removed; that is, the provision that prevents the courts from taking into account the provision of future care by the NHS. Under Section 2(4) of the Law Reform (Personal Injuries) Act 1948, no regard can be given in determining the reasonableness of any claimed future care costs and expenses or in reducing those costs and expenses by taking advantage of facilities for providing future care services, which may be available under the National Health Service. That produces a ridiculous situation, under which the NHS—or the Medical Defence Union or the Medical Protection Society—are compelled to make substantial awards for setting up in effect private care at home on a 24-hour basis for one individual for the rest of his or her life when there is evidence that it is not in the best interests of the claimant to have what is virtually a private hospital built around them. The NHS must allow the claimant to receive what may be better treatment from the NHS when all the money has been spent. The person can then claim that better treatment free of charge on the NHS.

At the moment, the courts are precluded by this provision from balancing the cost of private treatment against the cost of public treatment even where evidence is presented to the court that the claimant, in their own best interest, should receive treatment under the NHS. I have in mind my own experience of cases in which isolating the claimant in a 24-hour private hospital that is built around their home is probably the last thing that should happen, particularly with regard to their rehabilitation. They should be among other people with similar injuries, who are often receiving better care. The courts cannot currently review the reasonableness of future private expenses or the possibility that the extra costs can be minimised or avoided by taking advantage of facilities that are available in the NHS.

How serious is that? The experience in the NHS in dealing with claims is that future care costs are the largest single item in damages awarded in large claims. About two-thirds of the total liability for clinical negligence resides in a small number of large claims where much of the award payments are channelled into the private sector for the patient's long-term care. That means that, for patients who suffered their injuries in NHS hospitals, a large amount of money is transferred out of the NHS and into the private sector for the benefit of a very small number of people.

I understand that the Medical Defence Union believes that about £1,000 million leaves the NHS—I refer to the total NHS liabilities, which have been estimated at £5.25 billion—in order to set up those facilities. It estimates that £1,000 million could be redirected into NHS care if patients who needed longterm care were guaranteed that care under the NHS rather than the NHS having to pay damages that reflect the cost of private provision of long-term care.

I hope that the Minister will take time between now and Report to consider that matter. It is strongly felt by many doctors, dentists, nurses, consultants and people in the NHS. I have not discussed the amount of money coming from insurance premiums to pay for that care. With regard merely to the NHS, we should consider how much better that money could be spent within the NHS by setting up even better facilities for everyone. I beg to move.

Baroness Finlay of Llandaff

I rise briefly to support the amendment. The noble Lord, Lord Hunt of Wirral, has outlined the case very eloquently from the financial perspective. But I believe that another perspective needs to be outlined—that of the patients themselves.

A large amount of complex, highly technical and skilled care is now available to the NHS but is not available in the private sector. If a patient has had the misfortune to put forward a complex and unusual negligence claim and he has a rare and complex condition requiring ongoing intervention, he will almost inevitably have to access NHS care. There may almost be a duplication of care provision and continuity will be lost. Perhaps I may cite one simple example. If someone has lost his whole bowel and is dependent on total parenteral nutrition, even if he is managed at home on a 24-hour basis, he will inevitably have to access the NHS.

Legislation made in 1948 was appropriate to the services of the time, but there is a danger that the level of technical care available today bears no resemblance at all to what was scientifically known in 1948. I worry that the care delivered to patients does not, in this sense, offer redress. It does not help them to live with whatever problems they have and it does not help them towards a more integrated and better quality of life.

Baroness Scotland of Asthal

I say both to the noble Lord, Lord Hunt, and to the noble Baroness, Lady Finlay, that I understand the concerns which the amendment seeks to highlight. I am not able to accept the amendment because the implication of the change would not be restricted to personal injury claims involving periodical payments alone, and it is questionable whether the amendment is within the scope of the Bill.

In any event, I do not believe that such a significant change to the substantive law on damages would be appropriate without full consultation. The amendment, as proposed, would also have considerable resource implications for the National Health Service.

In opposing the amendment, we do not wish to prejudge any recommendation that the Chief Medical Officer might make on possible reforms to the arrangements for clinical negligence cases in the longer term. The Government would wish to consider those before deciding the appropriate way forward. I can certainly tell the Committee that the issues referred to by the noble Lord, and alluded to by the noble Baroness, have been raised and are being considered. We await the report of the Chief Medical Officer with not only great anticipation but interest. I can assure noble Lords that that report will be read with great care, and any recommendations that the Chief Medical Officer may make will be given the utmost consideration.

Lord Hunt of Wirral

I am grateful to the noble Baroness. It would be helpful to know what kind of timescale we are operating on and whether or not the Chief Medical Officer's report will be made public.

Baroness Scotland of Asthal

I do not know at this moment and I am not privy to that precise information. I know that we have been anxiously awaiting the report. Particularly bearing in mind the scope of the issues which the Chief Medical Officer must address, the noble Lord will know that we would obviously prefer the consideration to be comprehensive. We await the report within the timescale appropriate to the Chief Medical Officer.

We are very aware how important this issue is. I know that a great deal of care is being taken in structuring the recommendations. If I am able to give the noble Lord specific details, I shall certainly write to him.

Lord Hunt of Wirral

I am very grateful to the noble Baroness. Obviously I shall consider carefully the points that she raised. I am particularly grateful to the noble Baroness, Lady Finlay of Llandaff, for, again, having brought us face to face with some very practical consequences of the 1948 legislation. Of course the amendment must be within the scope of the Bill or it would never have been accepted by the Public Bill Office. However, I shall reflect on it and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8 p.m.

Baroness Scotland of Asthal moved Amendment No. 151: Page 109, line 18, column 2, at beginning insert— Section 48(4).

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 152: Page 109, line 18, column 2, at beginning insert— In section 70(2)(a), the words ", or in the case of the Official Solicitor a solicitor,".

The noble Lord said: I am extremely tempted to read out the long explanation, which is technical, detailed and full of exciting information—the stuff that I know noble Lords love to hear at this time of day—but I shall resist that temptation. The purpose and effect of the amendment is to repeal any remaining legislative references that are inconsistent with the removal of the Official Solicitor, principal secretary and legal secretary posts from the list of statutory officers in Schedule 3 to the 1978 Act. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 153 and 154: Page 110, line 40, at end insert— Income and Corporation Taxes Act 1988 Section 329AA(8)." (c. 1) Page 111, line 43, at end insert—

"Judicial Pensions and Retirement Act 1993 (c.8) In Part II of Schedule 1, in the entry for Schedule 3 to the Judicature (Northern Ireland) Act 1978, the words from ", other than" to the end.
In Schedule 5, in the entry for the Judicature (Northern Ireland) Act 1978 the words "or 75(1)"."

On Question, amendments agreed to.

Lord Hunt of Wirral moved Amendment No. 155: Page 112, line 13, column 2, at end insert ", except section 26

The noble Lord said: I do not propose to speak at length to the amendment, but it is a further opportunity for us to refer to the duties of the Chancellor of the Duchy of Lancaster. I declare an interest as a previous holder of that office.

We shall debate the issue at length in the many days that are being set aside for Report. I do not wish to preempt that. However, I hope that the noble Baroness will assure us that she is conducting wide consultation on the proposals in the Bill as they affect the Chancellor of the Duchy of Lancaster. She will be aware that another previous holder of the office— Mo Mowlam—conducted extensive consultation about a proposed change and then concluded that no change was advisable. There has been no similar consultation period this time, but the proposals have now come forward.

As the noble Baroness acknowledges, some strong views are held on the subject. It would be helpful to have an assurance that widespread consultation is planned or is proceeding at the moment on this important issue. I beg to move.

Baroness Scotland of Asthal

I am not able to accept the amendment. I heard with trepidation the noble Lord's words that he will return to the issue at length on Report. Of course I understand why he says that.

The amendment is deficient. Section 26 of the Justices of the Peace Act says that references to the Lord Chancellor, in Sections 5(1), 6, 7(4) to 7(6), 8 and 25 should be construed as references to the Chancellor of the Duchy of Lancaster. These sections will naturally be different under the Courts Bill. Additionally, Clause 6(4) of the Courts Bill would need to be amended. So, in any event, we would not be able to accept the amendment in this form.

However, as the noble Lord knows, I have wider and less remedial concerns. First, I should set this question in context. I know that noble Lords are concerned that the provision to transfer the duchy's responsibilities for the appointment and removal of magistrates is unwelcome to some magistrates in the region.

There has been a great deal of concern expressed by the Chamber during the passage of the Bill about the lay magistracy, and the Government's regard and intentions for it. I hope that the Committee will agree that we have gone some distance to meet these concerns. We have promised to restore the Supplemental List. We have demonstrated our commitment to the role of the lay magistracy in its general criminal jurisdiction and its specialist jurisdictions. The plans to extend magistrates' sentencing powers are also a demonstration of the faith in the magistracy. We have enhanced the position of Benches in statute as a step to allay magistrates' concerns about local justice; and also because we believe that Benches are a valuable institution and important to magistrates. I do not think that we can be accused of disregarding those issues.

I welcome the opportunity to explain why Ministers of both departments are in agreement that we should transfer those responsibilities to the Lord Chancellor. The current split of responsibility for appointing magistrates is anomalous even under the current system. It does not apply to professional judges. It does not apply to other ancient duchies. Other historical counties and regions accept that local advisory committees, chaired by lord lieutenants of counties and advising the Lord Chancellor, constitute a valid means of appointing magistrates for the locality. That system will continue in the duchy area, as it will across the jurisdiction. Indeed, many would argue that in such an important matter as the appointment and removal of magistrates, the heightened opportunity for inconsistent practice represented by the split of responsibilities is hardly acceptable.

On the last occasion I answered this question I outlined the nature of the consultation. I went through the fact that when Lord Justice Auld consulted on the matter there was wide consultation about whether there should be jurisdiction bringing all the courts together to unify the system. Those matters were taken into account. Because of the lateness of the hour, I shall not go through the extensive reasons why this decision was taken. I have set out the full reasons in a letter to noble Lords. If the noble Lord returns to the issue on Report, I shall delight in extolling the reasons in full. I hope that the noble Lord will not think it discourteous of me if I do not go into any further detail at this point and that he feels content to withdraw the amendment.

Lord Hunt of Wirral

I caution the Minister not to discard those very detailed notes because they will be necessary. Tomorrow I shall table for consideration on Report the kind of amendment that she seeks in order to be able to utilise those extensive notes and the speech that she has in preparation.

I warn the noble Baroness that extensive feelings are held on this issue by many people across the Duchy of Lancaster and elsewhere. There is a feeling that they have not been specifically consulted about this proposal, save by Mo Mowlam, albeit a short time ago. The virtually unanimous view was that this provision should be retained. Someone decided to alter that view without any further consultation on the specific proposal. That is why such strong feelings are held. We shall return to the matter on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendment No. 156: Page 113, line 8, at end insert— Justice (Northern In section 18(9), the words "and in the Ireland) Act 2002 (c. entry relating to the Official Solicitor"." 26)

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 99 agreed to.

Clause 100 [Extent]:

Baroness Scotland of Asthal moved Amendment No. 157: Page 53, line 10, leave out "or 95" and insert ", 95 or (Alteration of place fixed for Crown Court trial: Northern Ireland)

On Question, amendment agreed to.

Clause 100, as amended, agreed to.

House resumed: Bill reported with amendments.