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Lord Mackay of Ardbrecknish: The noble Lord rightly predicts that I shall make the same speech I made earlier today in response to a similar amendment moved by the noble Baroness, Lady Hollis. As the noble Lord did not weary Members of the Committee with a repeat of his speech, I shall not weary noble Lords with a repeat of mine. I simply underline the fact that it is our intention, as always, to consult interested parties where appropriate before the first set of regulations under the provisions of the Bill are made. Thereafter, the SSAC comes into play for any changes made after the period of six months from the date of commencement of the regulation-making powers.
Those are the normal procedures. I like to think, especially in regard to the pensions legislation, if I may say so, that the assurances I give about consultation are carried out. On the subject of the pensions Act, I can assure Members of the Committee that they most assuredly are being carried out.
Lord McCarthy: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clause 12 [Reference of questions to medical appeal tribunal]
Baroness Hollis of Heigham moved Amendment No. 32:
The noble Baroness said: We turn now to a fresh issue. In Clause 12 there are two, so to speak, parallel jurisdictions: the courts and the medical appeal tribunal, and they may on similar information come to different decisions. There are, therefore, two separate
What sort of case might we be talking about? Well, the typical case is one involving a pre-existing medical condition; for example, a back injury. The plaintiff has a pre-existing problem with his back, such as spondylosis. Inevitably this will have troubled the plaintiff at some stage in his life and he has, say, received benefit for four years. He claims damages on the basis of four years' exacerbation of his back condition--namely, that the symptoms came on four years earlier than would otherwise have been the case. He has medical evidence to support that contention. At trial, the insurance company produces medical evidence to say that the exacerbation was only for two years, and that any continuing symptoms after two years were down to the underlying back condition and not to the effects of the accident. The judge compromises and decides that the exacerbation was for three years. The claimant is thus compensated by the court for three years' worth of loss; but, as he has received benefit for four years, the DSS demands four years' worth of recoupment.
The claimant appeals and, as the clause is presently drafted, the medical appeal tribunal could come to a different decision from that of the court. That would be unfair to the claimant as the point has already been tried at court. When making that decision, the judge will have had before him the medical reports of consultants called by both sides and the benefit of hearing the doctors giving evidence under cross-examination. However, the medical appeal tribunal will have had the benefit of medical reports but will not necessarily have called the doctors to give evidence. The doctors in court would have been leading consultants, whereas the doctors appearing at the medical appeal tribunal are likely to be two local GPs who may have a general knowledge of the condition in question but they will not necessarily have the specialist knowledge of the consultants whom the judge has heard.
Therefore, we may have a bizarre situation in which the medical appeal tribunal comes to a different decision from that of the court, even though it had, so to speak, inferior and less expert information on which to base its judgement. We feel it right that the medical appeal tribunal should be bound by any finding of the court on the same issue, given the fact
Earl Russell: If I do not repeat the arguments put forward by the noble Baroness, I hope that she will take it for granted that it is for no other reason than that I agree with them entirely. I want to take the matter on another front. I want to take up the words in subsection (3) of the clause; namely,
I cannot help thinking that if I were a judge and I looked at this provision in the Bill I might feel very much the same way as the person who was advising me on that day. In a country subject to the rule of law, you do not take into account decisions of courts; you abide by them. This is a very unwise and, I am sure, entirely inadvertent piece of wording in the Bill which I believe we might be wise to correct.
The Minister may well remember--if not, I am sure that his department will--the judgment of Lord Justice Millett in the Court of Appeal in the case of Bate v. Chief Adjudication Officer. It is a case that I have been with in various capacities since the second Bill that I led on in 1990. I know that that judgment has been overturned by the Appellate Committee of this Chamber, but it steered round the reasoning of that judgment without ever directly rejecting it. That judgment dealt with a provision in the 1990 Act which required courts to judge as if past judgments had not been made. In an area where precedents rule, the Court of Appeal thought that this was to require the judges to judge contrary to law, which was contrary to their judicial oaths and which they could not do. Those are the kind of areas that we are extremely unwise to explore. I do not think it should be suggested that tribunals should be so cavalier as merely to take into account court judgments; I think that they ought to be bound by them. Before we go into other fundamental, far-reaching cases, the Minister might be wise to amend the Bill accordingly.
Lord Mackay of Ardbrecknish: The purpose of this amendment is to bind a medical appeal tribunal to a decision of the court where that decision relates to the same question in respect of the accident, injury or disease at issue. In some cases where the courts have decided an issue it will be clear that the tribunal should follow that decision. However, there will be occasions where the evidence before the tribunal shows that the decision of the court should not necessarily be followed. For example, where the court has decided that the
If the tribunal decides not to follow the decision of the court, it is important to view this scenario in its proper context. Under Clause 6 the liability for repayment of recoverable benefits falls on the compensator. If the court decides that damages should only be awarded for a fraction of the period for which benefits have been paid, the scope for the compensator to make a corresponding reduction in those damages under Clause 8 will be reduced. Furthermore, damages for pain and suffering will be paid in full in any event.
It is also important to remember that the decision of a medical appeal tribunal can be the subject of an appeal to a social security commissioner, with leave, and on a point of law. If a decision of a medical appeal tribunal is far removed from the decision of the court without apparent justification, it is possible that leave to appeal would be granted. It is also the case that the victim may appeal against the amount of compensation awarded to a higher court if he does not agree with the decision of the lower court.
In summary, I believe the problem is the difference in this case between the current and the new scheme. Some Members of the Committee are naturally concerned that, as with the present scheme, the money recovered could bite into the pain and suffering payment, whereas in future that will not be possible. With that provision removed, I believe that the concerns which lie behind this amendment do not apply. Therefore we do not need to bind a medical appeal tribunal in the manner which is suggested. I hope with that explanation the noble Baroness will be able to withdraw her amendment.
Page 7, line 10, leave out subsection (3) and insert--
("( ) In determining any question referred to it under subsection (1), the tribunal shall be bound by any decision of a court relating to the same issue and must take into account any decision of a court relating to a similar issue arising in connection with the accident, injury or disease in question.").
"must take into account any decision of a court relating to the same [case]".
However, just to "take into account"--that is, to give due weight to it--does not mean to say that the tribunal is bound by it and, indeed, it may come to a different decision from that of the court. We believe that that is a recipe for conflicting judgments and contradictory findings. Hence the amendment which requires the medical appeal tribunal not just to take into account but to be "bound" by the findings of the court on the same case and also to "take into account" the findings of the courts on similar cases.
"the tribunal must take into account any decision of a court".
It reminds me of an incident which took place, I believe, on my second day in this Chamber. The Copyright, Design and Patents Act was being debated. It was almost totally unintelligible to nearly everyone in this place. A Division was called. I looked to see who had moved the amendment and discovered that it had been moved by my own Front Bench. Unwisely I uttered the words, "Ah, that helps". However, I was told, "No, it doesn't help; that settles it".
7 p.m.
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