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Prospects of Civil Liability Bill becoming law improved

18 September 2018
A glass cubicle boardroom with white chairs
The Civil Liability Bill passed through its Committee Stage last Tuesday, as the Conservative members of the committee held firm to defeat various Labour amendments which were each in turn voted down - 23 times in all.

After this quicker than expected progress through the Public Bill Committee, what does future progress for the Bill look like? We look ahead in this update to its prospects.

The way ahead

The House of Commons returns from the conference recess on 9 October and while no date has yet been set for the Bill's Report Stage, the early timetabling of the Committee Stage after the summer recess suggests that subject to Brexit-related matters, the CLB will continue to be seen as a government priority so that it is likely that a date in October will be allocated.

The Report Stage will again be of the entire House, and further opposition amendments and votes upon them can be expected. After that the Bill will be expected to move forwards to Third Reading. While this usually follows on immediately after Report Stage, in this case it can be expected that the extra steps involved in the EVEL or 'English votes for English laws' process will need to be satisfied before Third Reading.

When entering the House of Commons the Bill was understandably certified by the Speaker as affecting England and Wales only, and none of the amendments which have been added in the Commons are expected to change a the required re-certification after Report Stage. The EVEL process will therefore need to be fulfilled and this will involve an additional stage where the Bill is approved in a consent motion voted upon only by MPs representing constituencies in England and Wales.

The government's position should be more comfortable in terms of votes when only those of English and Welsh MPs are taken into account, as opposed to votes of the entire House when it continues to need to rely for a majority on those of the Democratic Unionists under the current confidence and supply agreement.

Looking only at English and Welsh seats for an EVEL vote where a Bill is certified as applying only to England and Wales, 287 is needed for a majority, so that deducting the 13 Scottish seats from the 315 won by the Conservatives at the last General Election still leaves them with 302, 15 more than required. An EVEL majority will be easier to achieve than of the entire Commons.

No amendments can be tabled at Third Reading: at that point the choice of MPs is a binary one – yes or no to the Bill progressing.

After the next stages: Report Stage, the consent motion vote by English and Welsh MPs, and Third Reading, as there have been Commons amendments the Bill will enter ping pong between the Houses. As the amendments from the Commons are limited and are likely to be seen as relatively uncontroversial, ping pong may be brief, and if the government overcomes the remaining hurdles, progress through to Royal Assent may be quick, even by the end of November. Certainly before the Christmas recess begins on 20 December seems achievable.

Future prospects

The prospects of the legislation reaching the statute book will have increased as a result of the government's successful progression of the Bill through the Commons so far. The maintenance of a committed line to the key aspects of the reform both by ministers and now by all of the Conservative members of the Public Bill Committee justifies a view of increased prospects of success.

The government's amendments are now mainly included within the Bill, but further attempted amendments are expected from opposition MPs. It is though difficult to see any additional opposition amendments being passed by the House at Report Stage based on progress to date.

Similarly, there are no current signs of significant doubts amongst Tory MPs sufficient for those MPs to be unable to support the legislation going forward. Part 1 of the Bill does of course implement a Conservative Party manifesto commitment made at the last General Election. On this basis while it is too early to count chickens, the government can now be expected to win the remaining votes at Report Stage, on the EVEL consent motion, and at Third Reading.

The passing into law of what would then be the Civil Liability Act 2018 would give the opportunity for the swift implementation of Part 2 and the review of the discount rate. Any changed rate could be in place relatively early in 2019.

In relation to Part 1 of the measure and the plans as to whiplash reform, the relevant law in the form of the Act would then be in place and the continuing work setting up new processes would continue up to the revised go-live date in April 2020. Remaining uncertainties in relation to implementation of Part 1 would link to potential political developments during 2019 caused by Brexit-related factors and their impact on the government and the current parliament which remain impossible to predict.

Looking back at the Committee Stage – government position

Some clarification was given of the government position both on specific clauses of the Bill, and of the rationale behind its aims.

Justice minister Rory Stewart gave the intended definition of Vulnerable Road Users who are to be excluded both from the Bill and the SCT rise as "anybody who is neither driving a motor vehicle nor a passenger in one; in other words the definition includes pedestrians, motorcyclists or anyone else on the road who is not in a motor vehicle". No specific mention of pedal cyclists but clearly they will fall within that definition.

The government brought forward its own amendment now in clause 3(11) to deal with concerns expressed and will require the Lord Chancellor to consult with the Lord Chief Justice before making regulations as to the amount of the tariff.

In relation to children's claims, where it was pointed out by the opposition that a court hearing would be required to approve settlement, the minister accepted that a "very interesting point" had been raised, and that he was keen to discuss it outside of the committee and would be very interested to see an amendment tabled. Clearly further thought will be given to this aspect.

In support of the need for reform, Mr Stewart referred on a number of occasions to the fact that the opposition had failed to explain what he referred to as the 40% increase in claims since 2005, while accidents had decreased by 30% and cars had become much safer. No explanation from opposition MPs was attempted in committee.

Labour arguments

Rejected Labour amendments were:

  • to have whiplash defined by the Chief Medical Officer rather than the Lord Chancellor. Mr Stewart referred to this being a medico-legal matter rather than purely a medical one
  • to exclude claims arising in the course of employment. Mr Stewart countered that what was unimportant was the reason why the person was in the vehicle when injured as there were other compelling reasons to be travelling
  • to have damages determined by the Judicial College Guidelines rather than the tariff. The minister argued against this wrecking amendment on the basis that that the tariff was appropriate where whiplash was hard to detect and claims for it almost impossible to fight
  • to require medical reports to be obtained via MedCo. Mr Stewart said that it was the government intention that they should be but that their legal advice was that MedCo should not be referred to by name
  • to limit the tariff system to whiplash lasting up to 12 rather than 24 months. This was not in fact taken to a vote but the opposition said they would raise it at later stages. The government estimated that this would exclude 11% of claims while the opposition referred to an estimate from Carpenters that 15% was the figure.
  • to allow judges to award in excess of the tariff where they considered the tariff amount was insufficient
  • to allow the recovery of legal costs on the issue of quantum or where liability was in dispute
  • to assess a future SCT rise to CPI inflationary increases and only allow an increase where a rise of £500 was appropriate
  • to require insurers to pass on savings. The government has introduced clause 11 into the Bill giving the FCA powers to monitor savings and to report
  • to require the Civil Justice Council to review and report on the effect of the discount rate provisions in Part 2 of the Bill on the use of PPOs. Instead Mr Stewart indicated that the MoJ had written to the Master of the Rolls to request that the CJC look at the use of PPOs
  • One Labour member of the committee referred to the suggestion that at last year's MASS conference, on the subject of the government's anticipated savings, a speaker from LV had referred to "the £35 may or may not be achievable". The claimed quote seemed absent from all previous reporting of the conference and of its Twitter feed.

In remains to be seen which matters will be returned to by Labour at Report Stage, while the date for the next stages in the Bill's progression are also anticipated shortly.

Further Reading