My Lords, perhaps I may add to what the noble Baroness, Lady Berridge, has just said. I agree with her and stress that this is not just a case of racketeering lawyers. One problem that we need to grapple with at this stage of
the Bill is that the cold-calling racket and the encouragement of claims comes from claims management companies as well, often from abroad. They can also come from those who offer free hire cars to those who will pursue claims, and they can add a personal injury claim. The same applies to people who repair cars. There is all that potential for racketeering to jack up these claims, and we accept that there is a very serious problem.
I come back to the point about the definition. I agree with all those speakers who have said that the definition has to be in the Bill. The noble and learned Lord, Lord Judge, very concisely just explained why it has to go in the Bill and why it is insufficient for it simply to be in draft regulations at this stage.
Perhaps I may say a word or two more about the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra. I served on it for three years when my noble friend Lady Thomas of Winchester chaired it. The general practice then was for the Government to accept the recommendations of that committee. We took the responsibility of considering the delegated powers in every Bill that came through this House extremely seriously and in an almost entirely non-partisan manner. We were guided and assisted by clerks who were astute to ensure that their advice was based on precedent and on principles, and the principles were published.
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I appreciate that, in connection with the European Union (Withdrawal) Bill, the Government have largely resisted accepting the committee’s recommendations and relied on the large volumes of legislation needed for Brexit and the need for a very large number of statutory instruments in that connection. While I do not go along with their argument in anything like the whole of the way, I can nevertheless see that that legislation is a special case. It is very important, however, that that special case should not become regarded as a precedent, justifying the Government in ignoring the recommendations of the Delegated Powers and Regulatory Reform Committee and not following its recommendations in future. This Bill is in an entirely different category: it is in the traditional category, where those recommendations ought to be followed. There is no reason here why we should not follow the general principles as to when a delegation is appropriate and when it is not.
The terms in which this Bill was described have been canvassed in other speeches, but the committee was pretty caustic in paragraph 2, where one of the questions was described as:
“What is meant by ‘whiplash injury?’”
The answer, as described by the committee, was:
“‘Whiplash injury’ means whatever the Lord Chancellor says it will mean, in regulations to be made by him or her at some future date. Clause 1(1) has a partial definition but a full definition awaits the making of regulations by the Lord Chancellor, which will only happen once the Bill has been enacted. Given the complex physical and psychological components of whiplash injury, it is not satisfactory that these matters should be left to regulations rather than subject to a rigorous debate in Parliament”.
I agree; and if that is not a caustic recommendation from the Delegated Powers and Regulatory Reform
Committee, I do not know what is. The Government simply ought to accept it and put the definition on the face of the Bill in line with proper practice.
There is no reason advanced as to why a definition of sufficient clarity cannot be on the face of the Bill. The Government have produced draft regulations with a definition that might suffice as a working definition, subject to debate, but those regulations would, of course, be non-amendable in any event. Why should that definition not go in the Bill? We have heard definitions advanced in amendments from the noble Earl, Lord Kinnoull, the noble Baroness, Lady Berridge, and from my noble friend Lord Sharkey and me. The amendment of the noble Lord, Lord Hodgson, also defines whiplash for the time being.
I accept that there might be a regulation-making power to make amendment to the definition in the future from time to time. That is an acceptable compromise. Our Amendment 95, which insists on regulations before changes come into force, is a backstop. I do not regard that as an acceptable backstop; it is a counsel of despair in some ways. Our principal point, however, is one that the Government ought to accept: that a definition is required and it needs to have the evidence behind it.