Date laid: 25 February 2021
Parliamentary procedure: affirmative
Date laid: 25 February 2021
Parliamentary procedure: negative
These two instruments set up a simplified on-line system for claiming damages for whiplash injuries resulting from a road traffic accident with effect from 31 May 2021. Compensation will be paid according to a scale that increases with the duration of the injury but does not exceed £5,000. This legislation also prevents any claim being settled without medical evidence of the type specified being produced.
We have received a submission from the Motor Accident Solicitors Society which criticises the proposed tariff-based approach, in particular for its inconsistency with awards made under other damages regimes and the likely reduction in legal representation for the claimant. The Ministry of Justice’s response indicates that these issues were raised and decided during the passage of the Civil Liability Act 2018, the parent Act, and that the new system is exceptional, to deal with particular abuse. Both the submission and the department’s response are published on our website.
These two instruments are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
6.For some years there have been concerns over the number of whiplash claims going through the courts, and the Civil Liability Act 2018 (the 2018 Act) included provisions to enable reform. These Regulations now implement a new scheme with effect from 31 May 2021.
7.The draft affirmative instrument would limit claims for damages to no more than £5,000 for any road traffic accident-related whiplash injury (as defined by the 2018 Act), and for any minor psychological injuries suffered as a result. The instrument includes a scale of fixed sum payments, which rise with the duration of the injury. (More serious whiplash injuries, lasting longer than two years, are not subject to the tariff scheme.) Other provisions allow the court to apply a discretionary uplift (of up to 20%) to the tariff in exceptional circumstances. Finally, the Regulations set out specific requirements for medical evidence, which experts may provide, and require that it must always be provided before the claim may be settled.
8.The associated negative instrument, SI 2021/196, amends court procedures to support these changes, in particular by allowing whiplash claims for less than £5,000 to be pursued through the small claims track. Applications are to be made through an Official Injury Portal. Claimants who are unable to use the online service will be able to seek assistance from a dedicated support centre. The Ministry of Justice (MoJ) states that guidance and assistance is to be made available so that claims by both represented and unrepresented claimants can be pursued efficiently.
9.The Explanatory Memorandum (EM) states that these changes intend to reduce excessive claims, and could reduce motorists’ insurance premiums by approximately £35 a year. Section 11(7) of the 2018 Act requires the Treasury to lay a report before Parliament by 1 April 2025 setting out specified information on how insurers’ costs and awards have changed as a result of this change and giving a view on whether individual policy holders have benefited from any reductions in costs for insurers. Section 4 of the 2018 Act requires the Lord Chancellor to publish a review of the operation of these Regulations three years after they come into effect.
10.We received a submission from the Motor Accident Solicitors Society (MASS) criticising the tariff-based approach proposed in particular for its inconsistency with awards made under other damages regimes and the likely reduction in legal representation for the claimant. MASS however does support some aspects of the proposed legislation, such as the need for medical evidence and no settlement without it, to address the underlying levels of fraud. MoJ has provided a detailed response. The key points of both are set out below, and both are published in full on our website. 1
11.MASS states that the compensation levels, which start at £240 for an injury lasting no more than three months and rise in increments to £4,215 for an injuring lasting between 18 and 24 months, are too low and “are based on a combination of inaccurate insurance industry data, old Judicial College Guidelines (2013) and political judgement”. MASS adds that the tariff levels are much lower than the existing scale; for example the Judicial College Guidelines recommended an award of £2,950 for a four-to-six month injury in 2019, which would be reduced to £495 by these Regulations.
12.MoJ responded that
“This issue was raised and debated in depth during the passage of the 2018 Act. The Government informed both Houses during these debates on the methodology used in setting them. …
For clarity, when first consulting on the tariff in 2016, the Government considered numerous factors including the suggested compensation levels included in the edition of the Judicial College Guidelines (JCG) relevant to the claims data set used (12th edition, published October 2013). In addition, a considerable amount of validated data was gathered from insurers on actual settlements made, as well as additional corroborating claims data from claimant lawyers and claims volume and accident rate data from other Government Departments. Full details of the data sets used is available in the published impact assessment.2
This data was balanced against the overall Government objectives to control the societal impacts of the high volumes of claims by reducing compensation paid to a proportionate level to control the costs and benefit consumers through reduced motor insurance premiums. … Since the tariff was last published in 2018 it has been further up-rated again to reflect inflation and the publication of the 15th edition of the JCG guidelines. The Lord Chief Justice has also been consulted and his views on the tariff level were considered before the final figures were set.”
13.The MASS submission adds that the judiciary should not be restricted by the Lord Chancellor in applying a discretionary uplift in the proposed fixed compensation payments. Judges should be able to apply discretion according to the severity and duration of the injury sustained, and the circumstances of the accident.
14.MoJ responded that:
“The Government believes that this uplift should be capped at an appropriate level to protect the policy objectives of the reform programme. A high or unlimited uplift may result in more claimants requesting hearings for an uplift, driving litigation into the courts, and make the tariff system unworkable.
The Whiplash Injury Regulations 2021 will set that cap at an amount specified by the Lord Chancellor. The figure of 20% was included in the public consultation and debated during the passage of the 2018 Act. The 20% cap balances competing needs for an effective tariff and judicial discretion in exceptional circumstances.”
15.MoJ describes the way that the uplift system will work as follows:
“The 20% uplift is available to all claimants providing they can justify why they should receive more than the standard tariff amount. The new Official Injury Claim (OIC) service which will support claimants through the process, mirrors the requirements of the new Small Claims Track Pre Action Protocol and allows claimants to request the uplift as part of their settlement along with providing their reasons why. The information provided also helps to enable the medical expert who examines the claimant to consider whether there is any support for a claim for uplift, and if so this should be included in the claimants medical report.
If the at-fault compensator agrees that there are exceptional circumstances supporting this request they can include a percentage uplift of up to 20% in their settlement offer. If the at-fault insurer disagrees with the claimant’s request, the claimant has a choice of continuing to negotiate, to settle for the standard tariff amount or refuse to settle which would result in the need to issue court proceedings.
The OIC service will at this point provide the claimant with a court pack of evidence, including all relevant information input into the system by the claimant, and will generate a completed court form for their use. The claimant is also required to provide supporting evidence to the court as to why their circumstances are exceptional. This can be via their medical report or by some other form of evidence. The court will then consider the evidence provided by both parties and make a determination on whether an uplift of up to 20% is appropriate and issue a judgment.”
16.MASS argues that the tariff amounts are not comparable with damages for equivalent injuries or inconvenience. MASS states that a person who suffers pain for 12 months from a whiplash injury sustained in a road accident will receive £1,320 in compensation, whereas:
“It is also not appropriate to compare non-injury compensation awards such as for a travel delay with compensation for a whiplash injury as the circumstances are both different and unrelated. Supporting evidence for a whiplash injury can be anecdotal and difficult to substantiate, whilst there will be strong objective evidence in the case of a transport delay, which is usually paid to compensate for financial loss. Financial losses in relation to whiplash claims are still payable in full as well as the claimant receiving an additional payment for the pain and suffering encountered.
The tariff only applies to whiplash injuries suffered as a result of an RTA [Road Traffic Accident] where a driver has been negligent, as this is where there is the high number and cost of claims.
The damages proposed in the tariff are in line with stated Government policy as confirmed to both Houses of Parliament during the passage of the CLA [Civil Liability Act 2018]. It should be noted that the levels suggested in the JCG are generally higher than the amount that most claims settle for. This can be explained in part by the fact that the JCG is developed using outcomes of cases heard by the court. By default, the judiciary only hear more complex claims where there is significant dispute, and this can often result in higher awards for claimants. For example, the average pre-court settlement for a 9-month whiplash injury is currently around £2,500 but could attract an award of £3,710 if the JCG are used.
Damages for lost wages remain unchanged under these reforms and exceptional additional impacts on a claimant’s hobbies or lifestyle are catered for under the new proposals through the facility to apply for a 20% uplift to the tariff damages.
As previously made clear, the tariff is intended to reduce the amount of damages paid to victims of minor whiplash injuries to meet public policy concerns over their cost and impact on premiums. The awards in the proposed tariff are intentionally lower than those made typically under the current system but still provide an amount of compensation that we believe is proportionate, fair and non-discriminatory for the level of injury genuinely incurred.”
18.MASS also argues that people rely on the higher compensation to pay for legal advice. Although claimants will still have the option to seek expert legal advice, they say that the tariff of damages will make it significantly less likely. Insurers however will remain supported by defendant solicitors.
19.So, MASS continues, following these reforms, litigants in person:
“will be forced to navigate a new digital-only process — through a new Portal funded, developed and administered by the insurance sector — with little or no support in understanding complex legal concepts such as liability, resolving disputes of fact, causation, liability evidence, the complexities of the Road Traffic Act, court rules and protocols and evidence of financial loss.”
This, MASS states, challenges the fundamental principles of access to justice and equality of arms.
“The whiplash reforms do not restrict access to justice and the new SCT Pre-Action Protocol (SCT PAP) will enable parties to reach a fair settlement without the need for separate legal advice. The new SCT PAP also details the steps the parties should take, and the new service will provide them with a completed application form should they need to start court proceedings.
However, it is also important to note that the new online service has also been carefully designed to mirror the requirements of the SCT PAP. This means that claimants who process their claim through the Official Injury Claim service will automatically meet all the requirements of the new PAP.
Digitally disadvantaged claimants who are unable to use the system may also seek assistance from the dedicated telephone support centre. The guidance and help centre will provide support with the process of making a personal injury claim and whilst they will not provide legal advice, they will signpost users to alternative sources of help and support.
As mentioned above, the new service has been carefully designed to mirror the requirements of the SCT PAP and a new bespoke Practice Direction (PD27B) has been developed to enable claimants with a liability or quantum dispute to seek a judicial determination on their issue before being returned into the service to continue towards settlement.
MoJ officials have worked closely with both claimant and defendant representatives to draft the new framework. The new SCT PAP, PD27B and the accompanying rule changes included in SI 2021/196 — The Civil Procedure (Amendment No. 2) Rules 2021, have all been drafted in conjunction with, and approved by the Civil Procedure Rule Committee (CPRC). The CPRC is an independent body responsible for drafting court rules, its members are drawn from a wide range of backgrounds including claimant lawyers, defendant lawyers, barristers, lay members representing consumer interests and the Judiciary.”
21.The MoJ letter is a robust response that makes clear that these matters were fully debated during the passage of the 2018 Act and the issues were decided by Parliament. We note that illustrative tariff rates were available when the Bill was in progress, which we regard as best practice, and so the House was clear that it was agreeing to a substantial reduction in awards. We also note that the 2018 Act includes a number of provisions which require review of how this scheme operates and that it can be modified if unintended consequences are found.
Date laid: 25 February 2021
Parliamentary procedure: negative
This Home Office statutory instrument brings into force amended statutory guidance on Adults at Risk in Immigration Detention, with effect from 25 May 2021. The document sets out the principles and process for making decisions about individuals who may be considered at risk in immigration detention and deciding whether they should be subject to other arrangements. The proposed change will merge Potential Victims of Trafficking (PVoTs) into the same system as other adults at risk.
We have received a submission expressing concern that this change may result in more PVoTs being detained for longer. The Home Office response indicates that this may be an effect for some individuals. We note that the Home Office indicates that equivalent protection will be achieved through caseworker guidance and training. However, the House may wish to consider whether it is appropriate to downgrade statutory guidance under the Modern Slavery Act 2015 in this way.
These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House.
22.This Home Office statutory instrument brings into force amended guidance on Adults at Risk in Immigration Detention (“the AAR Statutory Guidance”)3 with effect from 25 May 2021. The document sets out the principles and process for making decisions about individuals who may be considered at risk in detention and deciding whether they should be subject to other arrangements.
23.The amended AAR Statutory Guidance deletes a separate section on ‘Trafficking cases’ at paragraph 18 of the current version, to bring people who are potential victims of modern slavery or trafficking fully within its scope. Detention considerations for them will therefore be made using criteria consistent with those that apply to other categories of vulnerable people.
24.The Home Office has recently published the latest immigration statistics for the year ending December 2020.4 They show that 14,773 people entered detention in 2020, although in part affected by the COVID-19 pandemic, this continues the general downward trend since 2015. Figures on the number of individuals in detention whose particular vulnerability is identified under the National Referral Mechanism are not released but the operation of the system is subject to independent annual review.5
25.We have received a submission from a group of seven organisations with expertise on immigration detention and/or human trafficking: After Exploitation, Anti-Slavery International, Bail for Immigration Detainees, Focus on Labour Exploitation, Freedom from Torture, the Helen Bamber Foundation and Medical Justice. It is published in full on our website.6 The groups are concerned that this merger of systems will weaken the protections for potential victims of trafficking (“PVoTs”) and result in more of them being detained for a longer time.
26.The Home Office is required to balance the risks of an individual coming to harm in detention against other immigration factors including their previous immigration history and any offending. This dictates the level of evidence that is required in the assessment. The submission argues that merging PVoT into the mainstream AAR Statutory Guidance removes more favourable consideration under the Modern Slavery Act Guidance:
“The very fact that a PVoT has been trafficked often leads to them having a negative immigration history. For example, being under the control of a trafficker may result in the person entering the country unlawfully, being unable to claim asylum as soon as they arrive, or being unable to travel in order to report.
Secondly, in order to benefit from a stronger protection against detention (i.e. that afforded at Level 3), once brought under the AAR Guidance, PVoTs with a positive Reasonable Grounds decision will now need to provide additional professional evidence demonstrating not only that they are an adult at risk, but that detention is likely to cause them harm.
Therefore, compared to the current arrangements, the amended AAR Guidance will make it significantly more difficult for PVoTs to avoid or secure release from detention.”
27.We asked the Home Office to respond and its full answer is published on our website. The Home Office said:
“It is necessary for the Home Office to make this change to the AAR Guidance in order to rectify an anomaly in the current policy, in which detention decisions for those considered to be potential victims of trafficking or modern slavery are made with reference to the separate Modern Slavery Act 2015 Statutory Guidance7 … [which] states only that such individuals do not need to be released from detention where there are public order reasons not to do so. We believe that the AAR policy itself provides the appropriate framework for all detention considerations of potential victims of modern slavery, to enable consistent consideration of all vulnerable individuals within a single policy and to remove the policy anomaly.
We recognise that there are specific protections afforded to those who have received a positive Reasonable Grounds decision under the National Referral Mechanism (NRM). Existing protections, including those provided under Articles 12 and 13 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) such as the 45-day Recovery and Reflection period, will continue. We will work closely with caseworkers and ensure that they are aware, through the supplementary AAR caseworker guidance and training, of the particular considerations and protections which apply to trafficking victims.”
28.In response to concerns expressed that PVoTs would be detained longer, the Home Office said that this may be the effect, though it is not the policy intention:
“There is a presumption in immigration policy that a person will not be detained. The AAR policy strengthens this presumption against the detention of those who are particularly vulnerable to harm in detention. This has not changed. Some individuals may, as a result of the changes, be more likely to be detained, or have their detention continued, than would currently be the case. However, detention decisions are always made on a case-by-case basis and vulnerable people will be detained only when the evidence of vulnerability in their particular case is outweighed by the immigration considerations — including timescales for potential removal, public protection concerns and risk of compliance issues.”
29.We note that the Home Office indicates that equivalent protection will be achieved through caseworker guidance and training. However, the House may wish to consider whether it is appropriate to downgrade statutory guidance under the Modern Slavery Act 2015 in this way.
30.The submission also refers to the conduct of the consultation about this change. It said:
“i. The Home Office shared the proposed change with a small group of stakeholders in August 2020. The group of stakeholders consulted did not include many relevant and/or specialist organisations whose expertise would have been extremely valuable. This included an external engagement forum set up by the Home Office itself (the Modern Slavery Strategy Implementation Group), various anti-trafficking charities, and a network of people with lived experience of the asylum/detention system.
ii. The consultation period was short (two weeks); moreover, it was carried out at a point in the year (August) when representatives of stakeholder organisations were likely to be on leave.
iii. The consultation also took place very late in the policy development process, raising questions about the ability of stakeholders to influence Home Office thinking on the issue. It is important to note that the proposed change had been under consideration by the Home Office for at least two years. It is unclear why the department did not begin the consultation at an earlier stage.
iv. Involvement in the consultation group was subject to an agreement not to disseminate the proposals beyond the group.”
31.The Home Office responded:
“There is no statutory requirement for consultation when making a change to the AAR Statutory Guidance. However, the Home Office has undertaken targeted engagement on this proposal with key stakeholders which has been used to inform our approach. We recognise that this targeted engagement does not constitute a formal consultation and was therefore not referred to in the Explanatory Memorandum. Through our engagement similar concerns were raised to those set out above. We have considered these concerns and are satisfied that there is sufficient rationale for introducing this change to ensure fairness and the consistent consideration of detention decisions for potential victims of modern slavery as well as to correct the policy anomaly. We continue to value the input and insights from those with an interest in this policy.”
32.We are concerned by this approach to consultation: targeted engagement always risks the department self-selecting those who will support its view, although we are told that was not the case here. Good policy making benefits from challenge and review, and the Home Office should have explained any consultation conducted in the Explanatory Memorandum, whether informal or as a statutory requirement. Conducting consultation for so short a time and in a holiday period, we will always regard as poor practice.
Date laid: 2 March 2021
Parliamentary procedure: negative
Among other things, this instrument defers the transition of testing for travellers to the private sector and the uploading of certain information from laboratories. The Explanatory Memorandum was particularly thin on this point, and the supplementary information provided remained opaque. We therefore wrote to the Minister for elucidation. The correspondence is published in this report and provides information and reassurance. It should not have been needed, however, as a clear description of the context, the reason for the change being made, and what its effects are likely to be should form the core of an Explanatory Memorandum.
These Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
33.This instrument does two main things:
34.The Explanatory Memorandum (EM) is particularly thin on this second point; although we received supplementary information from the Department of Health and Social Care, the material on testing remained opaque. We were told that in relation to regulation 9:
“Extensive work is required to update the current operational and digital systems to accommodate the provision of private tests to red list arrivals. Regrettably, a delay to the original launch date of 1 March to 26 April has been judged necessary to ensure that all of the relevant systems are ready to deliver this change.”
35.And in relation to regulation 10:
“This requirement is being delayed to allow more time for PHE to onboard laboratories to the complex process of uploading BAM sequencing files when reporting the viral genome for positive cases.”
36.We were left unclear about the context, the reason for the delays enabled by the Regulations, and the potential consequences of them. We therefore wrote to the Minister for elucidation. The correspondence is published in full at Appendix 1.
37.Lord Bethell’s letter gives a clearer explanation of the context:
“The move to introduce private sector testing of travellers is, in part, in order to safeguard [NHS Test &Trace] capacity for clinical priorities. It is also intended to encourage market innovation, offering choice to the consumer and enabling demand to expand the market’s capacity, as well as encourage a dynamic diagnostics industry. Travel is a discretionary activity and international arrivals are therefore required to pay for their testing.
Based on the Corporate Travel Management quarantine and test bookings data, in the period 15 February to 13 March inclusive there were 5,158 red-list arrivals and 237,957 amber-list arrivals.8 Based on prior volumes, the private sector will be able to deliver testing to 98% of arrivals. Depending on consumer preference and market pricing, private providers are likely to deliver a significant proportion of this potential market.”
38.The Minister’s letter also explains how the results of private testing will be integrated into the Test and Trace system. It says that all international arrivals are called by the Isolation Assurance Service to check that they are quarantining and completing mandatory tests unless they are exempt. It also gives reassurance that no information on variants of concern would have been missed because of the delay to the data from laboratories.
39.The Minister’s further explanation is helpful, but we should not have needed its assistance. A clear description of the context, the reasons for the change being made, and what its effects are likely to be should form the core of an EM. In our recent interim report we made the point that — “the fact that the majority [of COVID-19 SIs] have been brought into effect within days makes it even more important that their intention and effect are made clear to both Parliament and the public.” The EM that accompanied this instrument failed to do that. The instrument is therefore drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
1 SLSC scrutiny evidence page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.
2 Ministry of Justice, Civil Liability Act 2019: Reforming the Soft Tissue Injury (‘whiplash’) Claims Process: Impact Assessment (January 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778250/Whiplash-impact-assessment.doc [accessed 11 March 2021] [Word document download].
3 Home Office, ‘Draft revised guidance on adults at risk in immigration’ (22 February 2021): https://www.gov.uk/government/publications/draft-revised-guidance-on-adults-at-risk-in-immigration-detention-february-2021/draft-revised-guidance-on-adults-at-risk-in-immigration-accessible-version [accessed 11 March 2021].
4 Home Office, ‘National Statistics: How many people are detained or returned?’ (25 February 2021): https://www.gov.uk/government/statistics/immigration-statistics-year-ending-december-2020/how-many-people-are-detained-or-returned [accessed 11 March 2021].
5 The 2018-19 review can be found here: Independent Chief Inspector of Borders and Immigration, Annual inspection of ‘Adults at Risk in Immigration Detention’ (2018–19) (29 April 2020):https://www.gov.uk/government/publications/annual-inspection-of-adults-at-risk-in-immigration-detention-2018-19 [accessed 11 March 2021].
6 SLSC scrutiny evidence page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.
7 Home Office, Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland (January 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/950690/January_2021_-_Modern_Slavery_Statutory_Guidance__E_W__Non-Statutory_Guidance__S_NI__v2.pdf [accessed 11 March 2021].
8 We had not previously seen this term used. DfT states that the “amber list” is an informal term for those countries not currently on the red list (Schedule BI of the original regulations). Arrivals from amber list countries are required to self-isolate at home for 10 days on arrival in England and take pre-booked tests on days 2 and 8.