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Earl Russell: Before the noble Baroness replies, without entering into the question of which form of words is better in a perfect world, I am extremely glad to see the Minister's amendment. I thank him warmly for tabling it.
Baroness Turner of Camden: I thank the Minister for his explanation and for the statements he made in moving his amendment. In view of that, I am willing to withdraw my amendments and shall support Amendment No. 12 when it is moved by the Minister.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 10:
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish moved Amendment No. 12:
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Baroness Turner of Camden moved Amendment No. 13:
The noble Baroness said: This is a simple amendment which places an obligation upon the Minister by putting "shall" instead of "may" in this section of the Bill. I hope the Minister will be prepared to accept it. I beg to move.
Earl Russell: I warmly support this amendment, which is a point of some importance. Drafting of legislation must not become too permissive or it fails to serve its purpose as legislation. I very much hope that the Minister can accept the case for this amendment, which I do not think would do him any harm and would do a lot of other people a great deal of good.
Lord Mackay of Ardbrecknish: I am in a little difficulty because Amendment No. 13 is grouped with some others. I do not know whether the noble Baroness wishes to take them separately. I will deal with Amendment No. 13 which, as the noble Baroness said, would require the Secretary of State to issue replacement certificates of recoverable benefits whenever existing certificates expired.
There are many circumstances when it would be completely unnecessary to issue such a certificate, perhaps the best example being when the negotiating parties have already agreed a settlement and no further certificate is therefore required. I am concerned that such an amendment might lead to a never-ending series of certificates issued by the recovery unit, at significant administrative expense and to no practical purpose.
Clause 4(2) of the Bill places an obligation on the Secretary of State to respond to an application for a certificate within a set period. This arrangement will facilitate the settlement process without adding unacceptable administrative burdens. I believe it is properly a case of "may" because, particularly in the circumstances of subsection (5)(b), one would not want the Minister to have to do that in all cases and have an obligation upon him. There will be certain cases in which he may wish to do it, but I do not
Earl Russell: The Minister has made a perfectly serious point, which I take on board; but the noble Baroness, Lady Turner, has also made a perfectly serious point. At present, there is not quite a correct fit between those two points. The Minister's "may" stretches a little too far. It does not only cover the cases to which he referred, where there is no reason for such a certificate to be issued; it extends to any case whatsoever, as I understand it. In any circumstance, the Secretary of State might, perhaps through sheer inadvertence, perhaps because something else has happened that day, fail to get round to issuing a certificate.
Is it possible that we might find a form of words that could bridge the gap between these positions? Perhaps we could think about some form of words as follows: "The Secretary of State must either issue a certificate or show good cause why he has not done so". That is a tentative, on-the-spur-of-the-moment suggestion. Does it come anywhere near bridging the gap?
Lord Mackay of Ardbrecknish: I am not sure if there is a very big gap here. The real problem is that, where a compensator applies for a certificate, the Secretary of State, under subsection (2), must issue a certificate before the end of the following period, as it says on the face of the Bill. That seems to cover the point. The "may" is much more relevant to subsection (5)(b), where no application has been made.
I will look at what the noble Earl says and see whether there is some mismatch in the construction here; I do not think there is any mismatch about what we aim to achieve.
Baroness Turner of Camden: I thank the Minister for that explanation and the noble Earl, Lord Russell, for his intervention. There is a point to be made here, but I think that perhaps we should be better advised to think about it and have another look at it at Report stage. I think that what the Minister said has some relevance to our discussions and I am prepared to accept what he said. On the other hand, there may be occasions when a certificate ought to have been issued but has not been and to have a stronger wording here might be more helpful. I should like to think about what has been said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
The Deputy Chairman of Committees (Lord Aberdare): I should tell Members that, if Amendment No. 16 is agreed, I cannot call Amendment No. 17.
Lord Mackay of Ardbrecknish moved Amendment No. 16:
The noble Lord said: This amendment relates to Clause 4(6). In the present draft of Clause 4(6), as is the case under the present scheme, no application for a fresh certificate may be made while any existing certificate remains in force. This can in some cases lead to a slight delay between the expiry of a certificate and the issue of the next certificate, which can be inconvenient to the negotiating parties. The amendment in my name addresses this problem by allowing an application to be made before the expiry of an existing certificate. However, certificates may remain in force for a considerable period of time. If the Secretary of State were obliged to issue such a replacement certificate during the same time limit as that set out in subsection (3) of this clause, some overlapping confusion as to the proper recoverable amount would result. The amended subsection (6) therefore sets the time limit for the issue of a certificate to run from the date of the expiry of the old certificate, although replacement certificates may be issued as soon as the original certificate expires. I commend the amendment to your Lordships. I beg to move.
Baroness Turner of Camden: I thank the Minister for that explanation of his amendment. On the other hand, I must say that I prefer my own amendment, Amendment No. 17, because there is no definition of "prescribed period" for the purpose of this clause. The purpose of our amendment is to ensure that there is continuity from certificate to certificate. The Government's amendment does not deal with the fundamental criticism which we make of the existing Clause 4, which is that there can be a substantial hiatus between the expiry of one certificate and the issue of a new certificate. We suggest that the certificate must be issued within the period provided for in Amendment No. 17. A hiatus could delay a settlement and leave the parties in limbo, particularly where a case is coming up for trial. We therefore think that our amendment, which is very clear and attempts to cover the hiatus in Clause 4, is preferable to the Minister's amendment.
Lord Mackay of Ardbrecknish: Amendments Nos. 16 and 17 tackle a similar problem but in a different way. Amendment No. 17, which the noble Baroness has just discussed, would allow applications to be made for certificates up to four weeks before the expiry of a current certificate. We believe that the effect of this amendment would be rather inflexible
In order to meet their legal obligation to issue certificates within four weeks, the unit might have to issue a new certificate before the expiry of the certificate in force. It might therefore be difficult to avoid having two conflicting certificates in force at the same time, which is the point I made when I spoke to my own amendment. I believe that my amendment will allow an application for a certificate to be made during the currency of an earlier certificate but will not give rise to the possibility of conflicting certificates being in circulation at the same time. I have little doubt that the noble Baroness will be content to accept my amendments. If she wants to go a little further, perhaps she can reflect on what I have said and see that I have gone some way to meeting her concerns.
Earl Russell: I wonder whether I have followed this point correctly. I should be grateful for a little more clarification. What the Minister has provided is that one may apply for a fresh certificate while the old one is in force. But he has not closed the gap, so that the fresh certificate must arrive before the expiry of the old one.
The Minister's fear is that there may be two certificates in force at one time, which I should have thought could have been perfectly successfully dealt with on the same principle as is used in the making of wills: "This will revokes all former wills"--"This certificate revokes all former certificates". I wonder whether the Minister has perhaps seized here on a purely imaginary danger that there is a rational way of providing for it.
Let me put the point about a gap, even if it is a very small one. Under the Minister's amendment, I understand that it must be less than four weeks. Let us suppose that that four weeks comes, as the noble Baroness, Lady Turner, suggested, when a High Court case is about to come to trial. We heard a great deal yesterday in the Civil Procedure Bill about the amount of confusion that can be caused if court listings go wrong and the cost to public funds that may result from it. If indeed, we achieve anything like a civil justice commission, it might well have views to express on this matter.
So I wonder whether the Minister is perhaps being not sufficiently careful of the public funds of another department and whether some further thought here might be worthwhile.
Page 2, line 26, leave out ("a person") and insert ("the compensator").
Page 2, line 27, after ("must") insert--
("(a) send to him a written acknowledgement of receipt of his application, and
(b) subject to subsection (6),").
Page 2, line 37, leave out ("may") and insert ("shall").
Page 2, line 41, leave out subsection (6) and insert--
("(6) Where the compensator applies for a fresh certificate while a certificate ("the existing certificate") remains in force, the Secretary of State must issue the fresh certificate before the end of the following period.
(6A) The period is--
(a) the prescribed period, or
(b) if there is no prescribed period, the period of four weeks,
which begins with the day following the day on which the existing certificate ceases to be in force.").
5.30 p.m.
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