My Lords, Amendment 3 in this group is in my name and those of my noble friend Lord Marks and the noble Baroness, Lady Berridge, for whose support I am very grateful. Following the two preceding and eloquent speeches, I can be very brief. The point of the amendment is simply to put a definition of whiplash in the Bill. There are rival definitions in various other amendments, and there is now also a government definition contained in the draft SI published yesterday. At first glance, this government definition seems to provide a sound basis for discussion, but it is in the wrong place. It should be in the Bill.
As the noble Earl, Lord Kinnoull, has already said, our Delegated Powers Committee said clearly in its 22nd report that,
“it would be an inappropriate delegation of power for ‘whiplash injury’, a concept central to a full understanding of the Bill, to be defined in regulations made by Ministers rather than being defined on the face of the Bill”.
At Second Reading, many noble Lords strongly agreed with this conclusion and it is disappointing, now that they have a draft definition, not to see the Government bringing forward an amendment to put this in the Bill.
In his Second Reading reply and in his subsequent letter to us of 30 April, the Minister did not respond substantively to criticisms of using secondary legislation to define whiplash. He merely noted that he did not entirely agree with the DPRRC recommendations and that noble Lords were anxious about the definition of whiplash.
In fact, the Government had already set out elsewhere in correspondence with the Delegated Powers Committee their case for using secondary legislation. The DPRRC helpfully summarised this by saying that, first, whiplash must be defined accurately; secondly, there must be extensive consultation; and thirdly, the definition must remain accurate. The Delegated Powers Committee agreed with these propositions but said,
“it does not follow from them that the definition of ‘whiplash injury’ should be contained in regulations rather than the Bill. Neither the Lord Chancellor nor the Ministry of Justice is best placed to make this determination”.
We agree with the conclusions of the Delegated Powers Committee and invite the Minister to explain why the Government have rejected them and are still pursuing the statutory instrument route.
As to the Government’s definition itself, as I have said, it seems to provide a sound basis for discussion but we have not had enough time to make a proper assessment and to canvass the opinion of other stakeholders. We will want to return to this issue on Report.