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The Lord Chancellor: My Lords, with regard to Amendment No. 2, the view I have formed is that on the wording of the clause as drafted it is not clear that I would be acting within my powers, therein specified, if I prescribed different rates of return for different classes of case. I understood, in the light of discussion on a previous occasion, that it was highly desirable that that should be made clear. That is why I tabled the amendment.
As regards the point my noble and learned friend made, the notice of amendments is the basic document; that is, amendments to be moved on Third Reading by the Lord Chancellor. Amendment No. 2 states:
- "An order under subsection (1) above may prescribe different rates of return for different classes of case".
Lord Simon of Glaisdale: My Lords, I am much obliged to my noble and learned friend for allowing me to intervene. I do not know in what form he will ask us to pass the amendment. Is it with the word "prescribe", and if so how does he get there? Or is it with the word "present" as it appears on the Marshalled List? So far as I know--subject to correction from those who know better--that is the only amendment that can be submitted at this stage.
The Lord Chancellor: My Lords, the amendment I ask your Lordships to pass uses the word "prescribe" because that is the amendment of which I gave notice to be moved on Third Reading. The rules certainly allow the amendment, as notified, to be passed. There is a misprint on the Marshalled List of amendments. However, the actual notice of amendment to be moved on Third Reading uses the word "prescribe". Therefore I submit that I am perfectly in order to move the amendment with that word in place.
Lord Simon of Glaisdale: My Lords, will my noble and learned friend be kind enough to cite the passage in the Companion to the Standing Orders on which he is relying?
Lord Irvine of Lairg: My Lords, is it not the position that Standing Order 46 requires amendments to be tabled in sufficient time to be printed and circulated in the form in which these amendments are to be moved? That was done. There was, however, a printing error but as I understand the position--with the leave of the House--the error can be corrected and obviously should be corrected.
The Lord Chancellor: My Lords, with the leave of the House, what is definitive, for the purposes of the rule to which my noble and learned friend takes objection--I can quite understand why he would like to have manuscript amendments on Third Reading, although the Procedure Committee has not so far agreed with him--is the form in which the amendment was printed and circulated. That is what I am referring to; namely, the list of amendments to be moved on Third Reading by the Lord Chancellor in which Amendment No. 2 uses the word "prescribe". That is what I am asking to give effect to. I have so moved.
The Question is that Amendment No. 2 be agreed to in the form,
- "An order under subsection (1) above may prescribe different rates of return for different classes of case".
Lord Simon of Glaisdale: My Lords, I must protest at the Question being put in that form. The word is "present" not "prescribe".
The Lord Chancellor: My Lords, the amendment I am moving states:
- "Page 1, line 12, at end insert--
- "An order under subsection (1) above may prescribe different rates of return for different classes of case".
On Question, amendment agreed to.
An amendment (privilege) made.
The Lord Chancellor: My Lords, I beg to move that the Bill do now pass. The Bill is of a fairly simple variety intended to facilitate the proper application of the law of damages at present. As your Lordships know, it is based on the work of the Law Commission and I am sure that all of us are grateful for that work.
I thank the noble Lords, Lord Irvine of Lairg, and Lord Meston, for the part that they have played on their respective Benches; my noble and learned friend Lord Ackner and my noble and learned friend Lord Simon of Glaisdale for their participation on a variety of issues in particular in relation to Clause 1; my noble friend Lord Chelmsford for the way in which he explained the concerns of the insurance industry throughout the Bill's passage in a way that I believe we have been able to accommodate; the noble Lord, Lord Mishcon, for amendments to Clauses 5 and 7 which he raised during Committee; and my noble friend Lord Balfour in relation to consideration of Clause 3 as regards Scotland. For all those participations I am grateful. I hope that with your Lordships' expert help on the Bill it may go forward to the other place with reasonable hope of passing into law in due course.
Moved, That the Bill do now pass.--(The Lord Chancellor.)
8 p.m.
Lord Simon of Glaisdale: My Lords, my noble and learned friend showed quite exceptional charitableness in thanking my noble and learned friend Lord Ackner and myself for our participation. I am afraid that I shall trespass upon his indulgence just a little further on the same point as regards whether it is correct, or permissible, that the Treasury should be consulted on the rate of return when, as my noble and learned friend Lord Ackner pointed out, a government department may be a party to the action.
My noble and learned friend, having raised the matter at Committee and on Report, quite rightly did not table an amendment again, even with a misprint, at Third Reading. However, at this stage we are contemplating the Bill as it stands and as it goes to another place. Perhaps I should say at the outset that it seems to me a valuable Bill and it is a great pity that it should have this blemish.
There are only two possibilities. The first is that my noble and learned friend is entitled to consult the Treasury in the circumstances of Clause 1. If so, the words are unnecessary because, as I ventured to point out, the ordinary machinery of Government provides for constant consultation of that kind, and that has not been controverted. So if my noble and learned friend is entitled to consult the Treasury, and the Treasury is entitled to be consulted, those words are unnecessary. As we mourn over the constant inflation of the statute book, surely we should not neglect any opportunity to pare it somewhat. That is the first possibility.
The second is the point that was argued by my noble and learned friend Lord Ackner: that it is improper for the Treasury to be consulted when it has an interest, or a possible interest, in the matter. That again has not been controverted. Not only should justice be done, but justice should manifestly be seen to be done. If an interested party is consulted, that fundamental rule is set at nought. It is no use to say that the Treasury knows a great deal about these matters; so it does. But it is still an interested party.
With all his wisdom, you do not consult King Solomon if a question of monogamy is at issue. You do not consult any interested party in any matter where his decision may be seen--whether or not with justice--to be liable to be influenced by his interest.
In presuming to give a general blessing to the Bill, I presume once again to draw attention to the great pity that those words are included. The Bill is now going to another place, which I trust will take up that point.
Lord Meston: My Lords, I thank the noble and learned Lord the Lord Chancellor and his officials for the obvious care and attention which has been given to the Bill. The impact of the Bill remains unknown for the reasons that we have been discussing earlier this evening. But it seems to me to have at least considerable potential to give certainty on the question of damages in an area which, as I have already observed, is presently in a state of some uncertainty. Any reduction of uncertainty must be to the benefit of litigants and of insurers.
As regards the point repeatedly and properly raised by the noble and learned Lord, Lord Simon of Glaisdale, it is regrettable that the Treasury as a potential defendant has to be consulted. Nevertheless, whether or not the provision is on the face of the Bill, it seems inevitable that the Treasury will be consulted given the structure of the Bill; and the Treasury, like the Lord Chancellor's Department, will inescapably be a participant in the machinery of the Bill if it becomes enacted. From time to time they will themselves be defendants in personal injury actions. It occurred to me at an earlier stage of the Bill in debate on this point that perhaps I should have declared an interest. I once acted for the Lord Chancellor's Department when it was sued by a lady who had slipped over in a corridor in the Law Courts. The case involved a fascinating comparative analysis of the different types of floor polish used by various government departments. However, the risk of
such litigation, or more serious litigation, cannot be a reason for not allowing the Bill to go forward in the form in which it now appears.
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