Supplementary memorandum submitted by
the Ministry of Justice
In the course of my evidence to the Justice
Select Committee regarding the draft Civil Law Reform Bill on
10 March you asked why it had taken until the last days of
this current Government to bring into legislation, and then only
draft legislation, the damages proposals in the draft Bill, which
derive ultimately from recommendations made by the Law Commission
in 1999. In my reply I promised to write to you with a fuller
explanation.
The proposals to reform the law of damages now
contained in the draft Bill derive from wide ranging work on the
law of damages carried out by the Law Commission in the late 1990s.
The Law Commission reports most relevant to the provisions in
the draft Bill are:
— Damages for Personal Injury: Medical,
Nursing and Other Expenses; Collateral Benefits (LC262) 1999
— Claims for Wrongful Death (LC 263) 1999
However, at around the same time the Commission
also published reports on:
— Liability for Psychiatric Illness (LC
249)
— Aggravated, Exemplary and Restitutionary
Damages (LC 247)
These lengthy and detailed reports, which addressed
complex legal policy issues, needed careful consideration, which
had to be accommodated within the available resources and subject
to the competing priorities of other work.
Nonetheless, it has clearly taken an unreasonably
long time to develop this policy. This is unsatisfactory and is
one of the reasons why we have made such efforts to improve both
the way that the Government works with the Law Commission to develop
law reform and the way that Law Commission Bills are implemented.
The new Parliamentary procedure in the House of Lords has already
borne fruit in terms of implementation of Law Commission work
in the Perpetuities and Accumulations Act 2009 and may lead
to the enactment of the Third Parties (Rights against Insurers)
Bill this session. The Law Commission Act 2009 has paved
the way for a statutory protocol designed to increase collaborative
working between the Law Commission and Whitehall and for Parliament
to be more closely involved in scrutinising the Government's rate
of implementation of Law Commission reports. We hope shortly to
lay the protocol before Parliament. Hopefully, as a result of
these reforms, slow progress of the kind that has afflicted the
reform of the law of damages will become a thing of the past.
Since the publication of the response paper
to the consultation matters have moved on more quickly and I am
delighted that we have been able to lay the draft Bill before
Parliament for pre-legislative scrutiny and to publish it for
public consultation. This takes the preparation of the potential
Bill one step further and we will consider the outcome of the
pre-legislative scrutiny and the public consultation very carefully
before deciding how to proceed with these important reforms.
March 2010
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