My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Woolf. We very much look forward to his participation at this stage and on Report.
At the outset of our discussion on Part 2, I want to set out the underlying approach that we on these Benches are adopting. The Bill and the problem that it seeks to address in Clause 8 represent a challenge to two groups. The first comprises those who have suffered serious injuries that, in many cases, will have a lasting impact on their well-being and will engender financial loss, expense, pain and discomfort. The second group includes the first one, but it potentially extends to everyone who will require the services of the National Health Service at some point. We ought not to protect the second group at the expense of the first by artificially limiting the compensation payable to victims of negligence, whether by the NHS or other parties. We should look at ways to fund any liabilities incurred by the NHS for clinical negligence claims as part of society’s financial responsibility to maintain the service, rather than looking to victims to do so.
Periodical payments, to which noble Lords have already referred, clearly have an important future role and we would certainly wish to see them carried forward. The amendments before us touch on a number of issues. Amendment 92 calls for a review of periodical payment orders within a period of six months of this part of the Act coming into force. That might be too tight a timetable. The work certainly needs to be done, but that strikes me as potentially rather early.
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At Second Reading, the noble and learned Lord, Lord Hope, referred to new Section A1(2), which will allow a court to take,
“a different rate … into account if any party … shows that it is more appropriate in the case in question”.
He cited a case in which he had once been involved giving rise to an injustice that ought never to have been contemplated. The noble and learned Lord was reassured that the provisions to which I referred would act,
“as a safeguard against the risk of unfairness in … extreme cases”,
as,
“without it, the Bill would risk, in the more extreme cases, giving rise to an injustice which ought never to be contemplated”.—[Official Report, 24/4/18; col. 1493.]
Will the Government undertake to report regularly on the incidence of such cases in which the courts take a different rate into account? We would endorse Amendments 55 and 92, although perhaps the six-month period referred to is too short a period for the first review.
Amendment 92B in my name and that of my noble friend Lord McKenzie would require a review to be undertaken by the Civil Justice Council, because we feel that this needs to be by a completely impartial and authoritative body, within 18 months of the impact of Part 2 and the setting of a new rate of return on the extent to which PP orders are made, with results to be published within two years of the Act coming into force. It will take some time for the system to adjust to the new regime. We need to give time for the necessary consideration of the developments that will ensue.
We think that the prospect of the greater use of periodical payment orders will be in the interests of the system and of many of those who have suffered extremely serious injuries. We would like to see that process set in being, but then properly reviewed. There are concerns—we have heard some of them already—about how it would operate. We will need a commitment to the review after a reasonable time to ensure justice is being done for those who have suffered and that society as a whole accepts its responsibility for ensuring they have adequate compensation adapted to their particular needs as far as possible.