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Baroness Byford: Before the noble Lord sits down, I apologise to the House for the fact that I am struggling with my voice at the moment. My noble friends have raised two important issues. I believe the Minister said that the clause varies a class of exempt hunting and that that would relate to a matter of animal welfare. If that is so, would it not be more sensible if it said that? At the moment it certainly does not say that.
On the second point, raised by my noble friend Lord Jopling, the Minister knows well that I am not keen on statutory instruments and orders coming through, although it would be an affirmative one, because at that stage there would be very little that the House could do to alter it, whereas in Committee we can make alterations. Perhaps the Minister would quickly comment on that.
Lord Whitty: If the noble Baroness wishes to table an amendment at a later stage no doubt we can reflect on that. On being able to change the conditions that relate to animals or activities specified in Schedule 1, that would be by affirmative order and would probably be introduced on the basis of changes in experience and best practice in animal welfare circumstances, but there could be other reasons.
The point I am making is that this clause is primarily to introduce Schedule 1 and it is equally applicable to a system of registration. Therefore, I would hope that any attempt to remove the clause, which would destroy many of the purposes of exemptions to registration or exemptions to a ban subject to registration, would fall. I am not sure if the other points were, in reality, points to be made in a clause stand part debate. I hope that that will not be repeated at later stages of the Bill.
Viscount Astor: I am grateful to the Minister for his response. He said that there is a limited power of variation. In the mean time, I have looked at the Bill, but I cannot find where that comes in. It is not in Clause 1. Can the Minister tell me where it comes in? He said the power was limited in the way that it affected exempt hunting and exempt animals. I cannot find it in the Bill. I am sure that the Minister and his advisers will be able to tell me quickly where it is.
Lord Whitty: It is in the clause to which he objects. The clause states:
It does not say "add" or "exclude" a class specified. It says that it can vary the definition and the conditions attached to the exemption.
Clause 3 [Hunting: assistance]:
On Question, Whether Clause 3 shall stand part of the Bill?
Viscount Astor: I have a brief question for the Minister. It relates to coursing, but not, of course, to hare
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coursing as referred to in Clause 5, which deals with coursing events. Those of us who live near the downs in Oxfordshire suffer from illegal coursing. It happens every weekend and it happens in one of my fields on the edge of the downs. Almost every weekend groups of people—often more than a dozen—participate in coursing there. We have one extremely helpful policeman with a Land Rover who occasionally comes along and chases them but, not unreasonably, he is somewhat nervous of getting out of his vehicle and dealing with them because there are more of them than us.
When I read this clause I suddenly realised that it says,
I do not want those people there, but I am rather concerned that I knowingly permit them because I have no way of stopping them. Can the Minister tell me whether that is an adequate defence?
Lord Whitty: Any action taken under threat of force can be taken as an offence. The point of the clause is to make it an offence to permit illegal hunting, or if coursing were back in, subject to a subsequent amendment that we shall reach shortly, it would be an offence to allow people knowingly to operate on your land. Anything that is done under duress, of course, is covered by the criminal law in any case.
Lord Donoughue moved Amendment No. 4:
On Question, amendment agreed to.
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Carlile of Berriew: I want to raise a very short but important point. Clause 4 sets out a defence of a person charged with an offence under Clause 1. It is what is called in my profession and by the judiciary a reverse onus provision. It requires the person charged to prove on the balance of probabilities that he believed that the hunting was now register exempt and to prove that that belief was reasonable.
It would be helpful if the Minister could confirm that the Government either have taken into account or will take into account the very recent decision of your Lordships' House in the case of DPP v Sheldrake, which was reported in recent days. It may be that a reverse onus provision of that kind may be found not to be compatible with the European Convention and may require some amendment.
Lord Whitty: The noble Lord will recognise that this is a standard safeguard to ensure that people who have no intention of doing something illegal are not found guilty of doing so if they reasonably believe that it is legal. I am not aware of any implication from the case
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that he cites. Clearly, I shall take the matter away and see if there are any implications. If there are, it will have fairly widespread implications in other statutes.
Baroness Farrington of Ribbleton: This may be an appropriate moment to move that the House be resumed. In moving the Motion, I suggest that the Committee stage begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Damages (Variation of Periodical Payments) Order 2004
Lord Triesman rose to move, That the draft order laid before the House on 16 September be approved [29th Report from the Joint Committee].
The noble Lord said: Perhaps I may set out the background to this order and explain why we believe it is necessary.
In March 2002, the then Lord Chancellor published a consultation paper called Damages For Future Loss: Giving the Courts the Power to Order Periodical Payments for Future Loss and Care Costs in Personal Injury Cases. It sought views on the use of periodical payments in personal injury cases as an alternative to or in addition to the payment of awards for future loss by way of a lump sum. The proposals in that paper were widely welcomed and were taken forward in Sections 100 and 101 of the Courts Act, which completed its passage through Parliament in November 2003.
The consultation paper also sought views on a number of options relating to the variation of periodical payments. The majority of responses were in favour of some form of variation. Provisions were therefore included in the Courts Act to enable the Lord Chancellor by order to specify the circumstances in which the courts should be able to vary a periodical payments order or an agreement between the parties. This order-making power was subject to the affirmative resolution of both Houses. It is clear to me from study of the debates that people were very keen to see affirmative resolution as the right method.
The issues surrounding the variation of periodical payments were extensively debated in both Houses during the passage of the Courts Act. In those debates the Government made clear their belief that the ability to vary payments in certain limited circumstances has a part to play in the scheme for periodical payments. Ministers made clear that the scope for variation would be tightly controlled and undertook that the proposed order would limit the variation to distinct and foreseeable medical changes in much the same way as the current system for lump-sum provisional damages.
While we hope that the use of periodical payments in appropriate personal injury cases will become the norm, it is likely that the use of variable orders will be
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very limited. In the majority of cases a non-variable award is likely to be more appropriate. But, because the amount of the award has to be calculated at the time of the original court order, where there are real difficulties in assessing the likelihood of a claimant developing a particular medical condition or indeed overcoming a particular medical disability at the time the periodical payment order is made, it can involve estimates of future need, which may not be accurate.
In some cases claimants might not receive the compensation to which they are entitled, resulting in either their needs not being met or their having to be funded by the taxpayer, whereas in other cases defendants and insurers make substantial and unnecessary contingency payments for events which never occur. This is clearly the worst of both worlds. In these cases a variable order can provide the best solution. To ensure that the power to vary is properly controlled and focuses on the cases where it is most appropriate, Ministers indicated during the debate that the circumstances in which variation could be requested must be set out in the initial court order and must relate only to the claimant's medical condition attributable to the original accident.
Ministers also indicated that the court's permission would be required before an application for variation could proceed. These commitments are reflected in the terms of the draft order which is before the House today.
The central provisions of Articles 2 and 9 of the order are similar to those currently applicable to claims for lump-sum provisional damages. The difference is that in this case defendants will be able to apply for variation as well as claimants, and the circumstances in which an application may be made include both a serious deterioration and a significant improvement in the claimant's condition.
The power to make a provisional damages award in addition to an order allowing variation is preserved, although the cases in which this might be considered appropriate are likely to be rare. The order applies to agreements between the parties as well as to court orders and also sets out various procedural requirements governing variable orders and agreements and applications for variation.
Before an order can be made the provisions of the Courts Act require the Lord Chancellor to consult such persons as he thinks appropriate. As I have already said, full consultation took place in 2002, followed by extensive debate in both Houses. The Government considered carefully all the points raised. This order reflects the commitments given to both Houses as a result of those considerations.
Since then there have been further consultations on the drafting of the order with a range of key stakeholders, including claimants' representatives, insurers and medical defence organisations. A regulatory impact assessment has been prepared. That has been laid before the House. Our intention is that this order should be brought into force shortly alongside the rules of court and other provisions that are necessary to govern the court's ability to make periodical payments.
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I do not think this needs further or more elaborate description. In conclusion, I believe that the ability to vary payments in certain carefully defined circumstances is an important element in realising the benefits of periodical payments. The draft order before the House adopts a fair and balanced approach to achieving these aims. It also accurately reflects—as it should—the commitments given by Ministers during the passage of the Courts Act. I therefore ask the House to approve this order. I beg to move.
Moved, That the draft order laid before the House on 16 September be approved [29th Report from the Joint Committee].—(Lord Triesman.)
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