Prisons and Courts Bill (HC Bill 170)

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loss of amenity payable in respect of the minor psychological injury or injuries
is to be an amount specified in regulations made by the Lord Chancellor.

(4) If regulations made by the Lord Chancellor so provide, the total amount of
damages for pain, suffering and loss of amenity payable in respect of both—

(a) 5the whiplash injury, and

(b) a minor psychological injury or injuries suffered by the claimant on the
same occasion,

is to be an amount specified in regulations made by the Lord Chancellor
(notwithstanding subsections (2) and (3)).

(5) 10Regulations under this section may in particular—

(a) specify different amounts in respect of different durations of injury;

(b) specify amounts in respect of minor psychological injuries by reference
to the duration of the related whiplash injury.

(6) Regulations under this section may provide for a person’s whiplash injury or
15minor psychological injury to be treated as if the person had taken reasonable
steps to mitigate its effect.

(7) Regulations under this section amending or replacing earlier regulations may
increase or reduce amounts payable in respect of injuries.

(8) Nothing in this section prevents a court, in a case where a person suffers an
20injury or injuries in addition to an injury or injuries to which regulations under
this section apply, awarding an amount of damages for pain, suffering and loss
of amenity that reflects the combined effect of the person’s injuries.

(9) Nothing in this section prevents the amount of damages payable being
reduced by virtue of section 1 of the Law Reform (Contributory Negligence)
25Act 1945.

(10) This section does not apply in relation to damages payable by a person because
of the person’s breach of the duty under section 143(1)(b) of the Road Traffic
Act 1988 (duty not to cause or permit any other person to drive without
insurance or security in respect of third party risks).

(11) 30Regulations under this section are subject to affirmative resolution procedure.

63 Uplift in exceptional circumstances

(1) Regulations made by the Lord Chancellor may provide for a court—

(a) to determine that the amount of damages payable for pain, suffering
and loss of amenity in respect of a whiplash injury is an amount greater
35than the tariff amount that applies to that injury because of regulations
under section 62(2);

(b) to determine that the total amount of damages payable for pain,
suffering and loss of amenity in respect of both a whiplash injury and
one or more minor psychological injuries is an amount greater than the
40tariff amount that applies to those injuries because of regulations under
section 62(4);

(c) in a case where a person suffers an injury or injuries in addition to an
injury or injuries to which regulations under section 62 apply, to
determine the amount of damages payable for pain, suffering and loss
45of amenity in respect of the person’s injuries by reference to—

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(i) an amount of damages payable for pain, suffering and loss of
amenity in respect of the whiplash injury, or

(ii) a total amount of damages payable for pain, suffering and loss
of amenity in respect of both the whiplash injury and the minor
5psychological injury or injuries (as the case may be),

that is greater than the tariff amount that applies to that injury or those
injuries.

(2) The regulations may require a court to be satisfied, before using an amount
greater than the tariff amount to determine damages payable for pain,
10suffering and loss of amenity, that—

(a) the degree of pain, suffering or loss of amenity caused by the whiplash
injury makes it appropriate to use the greater amount, and

(b) the circumstances giving rise to that degree of pain, suffering or loss of
amenity are exceptional.

(3) 15The regulations must specify the maximum percentage by which the amount
used by a court in determining the amount of damages payable for pain,
suffering and loss of amenity may be greater than the tariff amount.

(4) Regulations under this section amending or replacing earlier regulations may
increase or reduce the maximum percentage.

(5) 20The Lord Chancellor must consult the Lord Chief Justice before making
regulations under this section.

(6) Regulations under this section are subject to affirmative resolution procedure.

(7) In this section “tariff amount” means an amount or total amount of damages
for pain, suffering and loss of amenity that would, but for regulations under
25this section, be payable in respect of—

(a) a whiplash injury, or

(b) a whiplash injury and one or more minor psychological injuries,

because of regulations under section 62(2) or (4).

Settlement of whiplash claims

64 30Rules against settlement before medical report

(1) This section applies if a person makes a whiplash claim.

(2) A regulated person is in breach of this section if—

(a) the regulated person knows or has reason to suspect that a claim made
by a person is a whiplash claim,

(b) 35the regulated person does, or arranges or advises the doing of, an act
mentioned in subsection (3), without first seeing appropriate evidence
of the whiplash injury, and

(c) the regulated person is acting as such when the regulated person does,
or arranges or advises the doing of, that act.

(3) 40The acts referred to in subsection (2) are—

(a) inviting a person to offer a payment in settlement of the whiplash
claim;

(b) offering a payment in settlement of the whiplash claim;

(c) making a payment in settlement of the whiplash claim;

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(d) accepting a payment in settlement of the whiplash claim.

(4) The Lord Chancellor may by regulations make provision about what
constitutes appropriate evidence of an injury for the purposes of this section.

(5) The regulations may in particular—

(a) 5specify the form of any evidence;

(b) specify the descriptions of persons who may provide evidence;

(c) require persons to be accredited for the purpose of providing evidence;

(d) make provision about accrediting persons, including provision for a
person to be accredited by a body specified in the regulations.

(6) 10Regulations under this section are subject to affirmative resolution procedure.

(7) In this section “whiplash claim” means a claim that consists only of, or so much
of a claim as consists of, a claim for damages for pain, suffering and loss of
amenity caused by—

(a) a whiplash injury suffered by a person because of driver negligence
15and in relation to which section 62 applies, and

(b) one or more minor psychological injuries suffered by the person on the
same occasion (if any).

65 Effect of rules against settlement before medical report

(1) The relevant regulator must ensure that it has appropriate arrangements for
20monitoring and enforcing compliance with the restrictions imposed on
regulated persons by section 64.

(2) The relevant regulator may make rules for the purposes of subsection (1).

(3) The rules may in particular provide that, in relation to anything done in breach
of section 64, the relevant regulator may exercise any powers that the regulator
25would have in relation to anything done by the regulated person in breach of
another restriction (subject to subsections (5) and (6)).

(4) Where the relevant regulator is the Financial Conduct Authority, section 66
applies instead of subsections (1) to (3).

(5) A breach of section 64—

(a) 30does not make a person guilty of an offence, and

(b) does not give rise to a right of action for breach of statutory duty.

(6) A breach of section 64 does not make an agreement to settle the whiplash claim
in question void or unenforceable.

66 Regulation by the Financial Conduct Authority

(1) 35The Treasury may make regulations to enable the Financial Conduct
Authority, where it is the relevant regulator, to take action for monitoring and
enforcing compliance with the restrictions imposed on regulated persons by
section 64.

(2) The regulations may apply, or make provision corresponding to, any of the
40provisions of the Financial Services and Markets Act 2000 with or without
modification.

(3) Those provisions include in particular—

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(a) provisions as to investigations, including powers of entry and search
and criminal offences;

(b) provisions for the grant of an injunction in relation to a contravention
or anticipated contravention;

(c) 5provisions giving Ministers or the Financial Conduct Authority powers
to make subordinate legislation;

(d) provisions for the Financial Conduct Authority to charge fees.

(4) The power to make regulations under this section is subject to section 65(5) and
(6).

(5) 10Regulations under this section are subject to affirmative resolution procedure.

67 Interpretation

(1) In relation to an act mentioned in section 64(3)

(a) a regulator is any person listed in the first column;

(b) a regulated person is any person listed in the second column;

(c) 15a regulator in the first column is the relevant regulator in relation to the
person listed in the corresponding entry in the second column.

Regulator Regulated person
The Financial Conduct Authority An authorised person (within the
meaning of the Financial Services
20and Markets Act 2000) of a
description specified in
regulations made by the Treasury
The Claims Management
Regulator
A person authorised by the
Regulator under section 5(1)(a) of
25the Compensation Act 2006 to
provide regulated claims
management services
The General Council of the Bar A person authorised by the
Council to carry on a reserved
30legal activity within the meaning
of the Legal Services Act 2007
The Law Society A person authorised by the
Society to carry on a reserved
legal activity within the meaning
35of the Legal Services Act 2007
The Chartered Institute of Legal
Executives
A person authorised by the
Institute to carry on a reserved
legal activity within the meaning
of the Legal Services Act 2007

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Regulator Regulated person
A licensing authority for the
purposes of Part 5 of the Legal
Services Act 2007 (alternative
business structures)

A person who is—

(a)

licensed by the authority
5to carry on a reserved
legal activity within the
meaning of the Legal
Services Act 2007, and

(b)

of a description specified
10in regulations made by
the Lord Chancellor





15
A regulatory body specified for
the purposes of this subsection in
regulations made by the Lord
Chancellor
A person of a description
specified in the regulations in
relation to the body

(2) 20Regulations under subsection (1) are subject to negative resolution procedure.

(3) In sections 64 to 66—

(a) a reference to making a claim against a person includes a reference to
notifying a person of the basis of a claim;

(b) a reference to making a payment to a person includes a reference to
25conferring a benefit on a person or a third party.

(4) In sections 64 to 66 and this section—

  • “benefit” means—

    (a)

    any benefit, whether or not in money or other property and
    whether temporary or permanent, and

    (b)

    30any opportunity to obtain a benefit;

  • “claim” includes counter-claim;

  • “insurer” means—

    (a)

    a person who has permission under Part 4A of the Financial
    Services and Markets Act 2000 to effect or carry out contracts of
    35insurance;

    (b)

    an EEA firm of the kind mentioned in paragraph 5(d) of
    Schedule 3 to that Act, which has permission under paragraph
    15 of that Schedule (as a result of qualifying for authorisation
    under paragraph 12 of that Schedule) to effect or carry out
    40relevant contracts of insurance;

  • “whiplash claim” has the meaning given by section 64.

Part 6 Final provisions

68 Consequential and transitional provision etc

(1) 45The Secretary of State or Lord Chancellor may, by regulations, make
consequential, supplementary, incidental, transitional, transitory or saving
provision in relation to any provision of this Act.

(2) The regulations may, in particular, amend, repeal or revoke—

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(a) any provision of an Act passed before this Act or in the same Session, or

(b) any provision made under an Act before the regulations come into
force.

(3) Regulations under this section that amend or repeal any provision of an Act
5(whether alone or with other provision) are subject to affirmative resolution
procedure.

(4) Any other regulations under this section are subject to negative resolution
procedure.

69 Regulations

(1) 10Regulations under this Act are to be made by statutory instrument.

(2) Where regulations under this Act are subject to “negative resolution
procedure” the statutory instrument containing the regulations is subject to
annulment in pursuance of a resolution of either House of Parliament.

(3) Where regulations under this Act are subject to “affirmative resolution
15procedure” the regulations must not be made unless a draft of the statutory
instrument containing them has been laid before Parliament and approved by
a resolution of each House of Parliament.

(4) Regulations under this Act may—

(a) make different provision for different purposes or areas;

(b) 20include consequential, supplementary or incidental provision;

(c) make transitional, transitory or saving provision.

(5) Subsection (4) does not apply to regulations under section 71.

70 Extent

(1) This Act extends to England and Wales only.

(2) 25But that is subject to the following provisions of this section.

(3) Any amendment, repeal or revocation made by this Act (except those referred
to in subsections (4) to (6)) has the same extent as the enactment amended,
repealed or revoked.

(4) The amendments made by section 2(2), (4) and (7) and section 3(4)(b) extend—

(a) 30to England and Wales, and

(b) in their application to immigration inspection functions, to Scotland
and Northern Ireland.

In this subsection “immigration inspection functions” means functions
conferred by virtue of section 5A(5A) of the Prison Act 1952.

(5) 35The amendments made by section 3(4)(a) extend to England and Wales,
Scotland and Northern Ireland.

(6) The amendments made by the following provisions extend to England and
Wales only—

(a) section 47;

(b) 40paragraph 1 of Schedule 13.

(7) Sections 37 to 45 and Schedule 8 extend—

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(a) to England and Wales,

(b) in their application to the First-tier Tribunal and the Upper Tribunal, to
Scotland and Northern Ireland, and

(c) in their application to employment tribunals and the Employment
5Appeal Tribunal, to Scotland.

(8) Sections 4 to 17 and section 20 and Schedule 1 extend—

(a) to England and Wales, and

(b) in their application to immigration-related functions, to Scotland and
Northern Ireland.

10In this subsection “immigration-related functions” means functions relating to
immigration detention facilities and immigration escort arrangements.

(9) Subsection (8) does not apply to paragraphs 5 to 7 of Schedule 1 (and so
subsection (3) applies).

(10) This Part extends to England and Wales, Scotland and Northern Ireland.

71 15Commencement

(1) This Act comes into force on such day as the Secretary of State may by
regulations appoint.

(2) But that is subject to subsections (3) to (5).

(3) Section 47 comes into force on such day as the Lord Chancellor may by
20regulations appoint.

(4) Section 60 comes into force at the end of the period of two months beginning
with the day on which this Act is passed.

(5) This Part comes into force on the day on which this Act is passed.

(6) Regulations under this section may—

(a) 25appoint different days for different purposes;

(b) appoint different days for different areas;

(c) make transitional, transitory or saving provision.

72 Short title

This Act may be cited as the Prisons and Courts Act 2017.

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SCHEDULES

Section 4

SCHEDULE 1 The Prisons and Probation Ombudsman

Appointment

1 (1) 5It is for the Secretary of State to appoint a person as Ombudsman.

(2) A person may only be appointed as Ombudsman if the person has been
selected on merit on the basis of fair and open competition.

(3) The terms and conditions of appointment as Ombudsman are to be
determined by the Secretary of State.

10Status

2 (1) The Ombudsman’s functions are exercisable on behalf of the Crown.

(2) The Ombudsman is a Crown servant for the purposes of the Official Secrets
Act 1989.

(3) But service as the Ombudsman is not service in the civil service of the
15Crown.

Staff and other resources

3 (1) The Secretary of State must provide the Ombudsman with such staff, goods,
services, accommodation and other resources as the Secretary of State considers are
needed for the exercise of the Ombudsman’s functions.

(2) 20The Secretary of State must make such remuneration payments as the Secretary of
State considers are needed for the terms and conditions of the Ombudsman’s
appointment to be complied with.

(3) In this paragraph “remuneration payments” means—

(a) payments of remuneration, pensions, allowances, gratuities or
25compensation payable to, or in respect of, the Ombudsman, and

(b) payments towards the provision of such remuneration, pensions,
allowances, gratuities or compensation.

Delegation

4 (1) Any function of the Ombudsman may be discharged on the Ombudsman’s
30behalf—

(a) by any member of the Ombudsman’s staff or any other person that
the Ombudsman considers appropriate, if the staff member or other
person is authorised by the Ombudsman for that purpose, and

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(b) to the extent so authorised.

(2) An authorisation under this paragraph in relation to a function—

(a) does not prevent the Ombudsman from carrying out the function,
and

(b) 5does not affect the Ombudsman’s responsibility for the carrying out
of the function.

Parliamentary Commissioner Act 1967 (c. 13)1967 (c. 13)

5 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
subject to investigation), at the appropriate place insert—

  • 10“The Prisons and Probation Ombudsman.”

House of Commons Disqualification Act 1975 (c. 24)1975 (c. 24)

6 In Schedule 1 to the House of Commons Disqualification Act 1975 (offices
disqualifying for membership), in Part 3, for “The Prisons and Probation
Ombudsman for England and Wales” substitute “The Prisons and Probation
15Ombudsman”.

Freedom of Information Act 2000 (c. 36)2000 (c. 36)

7 In Schedule 1 to the Freedom of Information Act 2000 (public authorities), in
Part 4, for “The Prisons and Probation Ombudsman for England and Wales”
substitute “The Prisons and Probation Ombudsman”.

Section 21

20SCHEDULE 2 Interference with wireless telegraphy in prisons etc

Introduction

1 The Prisons (Interference with Wireless Telegraphy) Act 2012 (interference
with wireless telegraphy in prisons etc) is amended as follows.

25Section 2: safeguards

2 (1) Section 2 is amended as follows.

(2) After subsection (3) insert—

(3A) A public communications provider that is authorised to interfere
with wireless telegraphy under section 1 must act in accordance with
30directions given under this section.”

(3) In subsection (4), for “section 1” substitute “section 1(1)”.

(4) After subsection (4) insert—

(4A) Where the Secretary of State authorises an interference with wireless
telegraphy under section 1(2A), the Secretary of State must also give
35directions to the public communications provider so authorised—

(a) specifying descriptions of information—

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(i) to be provided to persons in charge of relevant
institutions in England and Wales, or

(ii) to be provided to the Secretary of State;

(b) specifying intervals at, or occurrences on, which such
5information is to be so provided;

(c) as to the circumstances in which the use of equipment for the
purposes of an interference with wireless telegraphy
authorised under section 1 must be modified or discontinued
(and, in particular, directions aimed at ensuring that the
10authorised interference will not result in disproportionate
interference with wireless telegraphy outside the relevant
institution).

(4B) Where the Secretary of State gives a direction under subsection (4A),
the Secretary of State must also give directions to persons in charge
15of relevant institutions in England and Wales—

(a) specifying descriptions of information (which may include
PCP information) to be provided to the Office of
Communications;

(b) specifying intervals at, or occurrences on, which such
20information is to be so provided.

In this subsection “PCP information” means information provided
by a public communications provider in accordance with a direction
under subsection (4A).

(4C) A person in charge of a relevant institution in England and Wales
25must comply with a direction given under subsection (4B).”

(5) In subsection (5), for “mentioned in subsection (4)” substitute “authorised
under section 1 to interfere with wireless telegraphy”.

Section 3: retention and disclosure of information obtained under section 1

3 (1) Section 3 is amended as follows.

(2) 30In subsections (5) and (6), after “section 1(2)(b)” insert “or (2B)(b)”.

(3) After subsection (9) insert—

(10) A reference in this section to a relevant institution is—

(a) in the case of information obtained by virtue of an
authorisation under section 1(1), a reference to the relevant
35institution to which the authorisation relates;

(b) in the case of information obtained by virtue of an
authorisation under section 1(2A), a reference to the relevant
institution to which the information relates.”

Section 4: interpretation

4 40In section 4, after the definition of “the appropriate national authority”
insert—

  • ““public communications provider” means a person who is a
    public communications provider for the purposes of Chapter
    1 of Part 2 of the Communications Act 2003 by virtue of
    45paragraph (a) or (b) of the definition of that term in section
    151(1) of that Act;”.