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Lord Irvine of Lairg: My Lords, I have some concern about this amendment and I desire to be enlightened by the noble and learned Lord.
I am referring to the addition of the words "if any" to Clause 1(1) so that it will read:
- "take into account such rate of return if any as may from time to time be prescribed by an order made by the Lord Chancellor".
Therefore, if Amendment No. 1, by the words "if any", signals a retreat from the principle that the Lord Chancellor should, from time to time, set a prescribed rate in the interests of legal certainty so as to ensure that the plaintiff victims are compensated fully, then I regard that as a troubling change of position on the part of the Government.
Therefore, I should welcome the noble and learned Lord's comments on that point. The issue will obviously have to be pursued further when the Bill is considered in another place and this House will have the benefit of returning to it in the light of the discussions there. But I should welcome the noble and learned Lord's observations as regards my anxiety.
Lord Meston: My Lords, my reaction to the first amendment was exactly the same as the reaction of the noble Lord, Lord Irvine of Lairg. Do the words "if any" emphasise or indicate that the Lord Chancellor may well decide not to prescribe any rate at all in the foreseeable future, notwithstanding the enactment of this Bill and it coming into force two months after enactment, as is provided in Clause 8?
It strikes me that that could add uncertainty in an area of law and practice where there is already considerable uncertainty. That uncertainty may not be resolved for several months ahead, particularly as the question of rates of return is to be considered by the Court of Appeal and may, quite possibly, be considered further on appeal by this House in its judicial capacity. My concern is the uncertainty which may be brought about by that situation.
Viscount Chelmsford: My Lords, I should like, first, to thank my noble and learned friend the Lord Chancellor for the words he used on Report which enabled me to withdraw the amendment that I had moved. So far as concerns Amendment No. 1, I understood my noble and learned friend to be using
the amendment to reinforce the discretionary nature of his power. If that is so, it would be helpful if he could indicate the circumstances in which he would take the discretionary power and those in which he would not. Alternatively, if that is difficult--and I imagine that it might be--perhaps he will at least explain certain circumstances where it is quite clear that he would use it and other circumstances where it is quite clear that he would not. In that way, we will have some feel for the middle ground.So far as concerns Amendment No. 2, I wonder whether I have fully understood the definition that my noble and learned friend intends to use regarding the words "different classes of case". If that means, as my noble and learned friend said on Report on 4th June (Hansard, col. 1234), that,
- "the power can be exercised in relation to claims not yet accrued in a way that might be different from the way in which it affects claims already accrued",
Lord Simon of Glaisdale: My Lords, I share the concern that has been expressed, but from a slightly different angle. I should like, first, to say that the practice of this House is highly convenient for allowing parliamentary draftsmen to have second and third thoughts, so that when a Bill which originates in this Chamber goes to another place it should do so without any blemish.
I can only speak to Amendment No. 1 at the moment, because Amendment No. 2 has not yet been called. I cannot for the life of me see why Amendment No. 1 is necessary. The noble Lords, Lord Irvine and Lord Meston, suggested that it may actually be mischievous. But why is it necessary at all? If the Lord Chancellor does not prescribe any rate of return, obviously the courts cannot have regard to that which does not exist. Therefore, why are the words "if any" necessary?
I shall have something to say on Amendment No. 2, on which the noble Viscount spoke valuably. However, I believe it would be helpful if, before I do so, my noble and learned friend has a chance to deal with the arguments raised on Amendment No. 1 and to comment on what was said on Amendment No. 2 by the noble Viscount.
The Lord Chancellor: My Lords, the emphasis on the words "if any" which I propose in Amendment No. 1 is simply to deal with the point that I tried to make clear on the last occasion; namely, that I would not wish to put in place a rate of return until the courts had decided the current cases. I believe that it is right and appropriate to emphasise that, unless and until a rate is prescribed, the courts must decide in accordance with their own appreciation of the present law. It is possible, as my noble and learned friend Lord Simon said, that that is assumed. However, I think that it is desirable in the context of this particular discretion to make that clear. That is why I have done so.
I turn now to classifications. When looking at the way in which, for example, the Court of Appeal may decide such matters, I believe it to be perfectly possible that it may think that different rates of return might rightly be taken into account in different classes of case, possibly, to some extent, by reference to the size of the award and the nature of the portfolio on which it would be based; or, indeed, in relation to the period over which it was anticipated that the damages should run. For example, if a comparatively short period were envisaged for the loss anticipated, the rate might be different from that applicable to a longer period. I cannot tell.
I believe that one should retain as much flexibility as possible. I certainly wish to maintain flexibility to deal with the matter which my noble friend raised on the last occasion. If there were any question of the rate being different from that which the law would in any event carry as a result of the decisions under existing law, it would be right in my submission to distinguish between cases in respect of which the right of action had already accrued at the date upon which the matter was in question and cases in respect of which the right of action had not accrued. Of course, that would involve a degree of change in the law and that is certainly not something that I would contemplate. I hope that the provision will last for a long time. However, circumstances can change and it is right to make it clear that there is a wide discretion.
I have already spoken to Amendment No. 2. I am certainly anxious to deal with any points which arise upon it either now or when I come formally to move the amendment.
On Question, amendment agreed to.
7.45 p.m.
The Lord Chancellor moved Amendment No. 2:
The noble and learned Lord said: My Lords, I have already spoken to the amendment, but I should remind the House that my moving of this amendment is subject to a correction in that instead of the word "present", the amendment, as set out on the Marshalled List, should read,
Lord Simon of Glaisdale: My Lords, I hope that my noble and learned friend will forgive me if I say that he left me utterly unconvinced that Amendment No. 1 is necessary. Amendment No. 2 is more doubtful, but presumably its purpose is to meet the case. If the Lord Chancellor prescribes different rates of return for different classes of case, as evidently my noble and learned friend envisages from what he just said, would that not be ultra vires, or would it be acceptable? It seems to me to be absolutely incredible that any court could conceivably hold that the Lord Chancellor was
Among his other multifarious duties, my noble and learned friend is responsible for the state of the statute book. The statute book becomes more and more inflated. The format is enlarged but it soon needs as many volumes as it did before, even in a larger format. It is time that we took some notice of the interests of the user of the statute book and also of the taxpayer who has to pay for printers, ink, secretaries, wordprocessors and all the paraphernalia of publicising an Act of Parliament. Unless it is really necessary to have either of these two amendments--in my respectful submission it is not--they should not be put into this measure.
Then there is the question of what my noble and learned friend says may be a misprint. I rather suspect that the Public Bill Office was unable to read the handwriting of parliamentary counsel. I had that experience, together with parliamentary counsel, on a recent amendment that I submitted. In any event there is on the Marshalled List the word "present" instead of "prescribe". We can only pass the amendment in the form in which it appears on the Marshalled List. If it makes nonsense, my noble and learned friend should withdraw it and submit it in the correct form to the other place.
On the first amendment I said that we were under a duty, when we pass any measure that originates in this House, to see that it goes to the other place in an impeccable condition. That will not be so if Amendment No. 2 is incorporated. Of course if one could make a manuscript amendment on Third Reading, the matter could easily be put right. I have raised the matter on a number of occasions. On the first two occasions, when it caused great inconvenience, I made a submission to the Procedure Committee and got nowhere. As a result I ceased troubling the Procedure Committee or the various people who had to type my documents. It is just another example of how inconvenient this irrational rule is. There are times--on Report or during consideration of Commons amendments--when manuscript amendments can be accepted. On this occasion they cannot. That is highly inconvenient. It is time that the Procedure Committee looked at the matter again.
Page 1, line 12, at end insert--
("( ) An order under subsection (1) above may prescribe different rates of return for different classes of case.").
"may prescribe different rates of return for different classes of case".
I believe that that error was due to a misprint. I need not, perhaps, further investigate the precise place where it occurred.
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