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Ambush by consultation paper

Kerry Underwood despairs at the continuing onslaught of government consultations

14 February 2017

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Government consultations have for a long time been a waste of time, a fact recognised by the almost complete lack of engagement by the 64 million people of this country.

The general responders are other government and quasi-government organisations, and self-interest groups who justify their existence by preparing reports and reporting on reports and consulting on consultations.

Now you may ask, if, like Communist Russia, this keeps a few hundred thousand unemployables off the dole, what harm is done? Until recently, I might have agreed, but now there are reasons not to.

First, many people who should know better seem to think someone is listening. They are not. I never bet, but if I did I would put a lot of money on the progress and outcome of two current legal consultations:

PI small claims limit

  • Almost every responder, entirely irrationally in my view, will oppose any increase in the limit; and

  • The limit will go up.

Fixed recoverable costs

  • Almost every responder, entirely irrationally in my view, will oppose any extension of fixed recoverable costs; and

  • Fixed recoverable costs will be extended.

Much more seriously, some courts are taking into account consultations and responses, or more often lack of responses, in reaching decisions on the law passed by parliament.

Pepper (Inspector of Taxes) v Hart [1992] UKHL 3, which held that in certain exceptional circumstances Hansard, the official record of the proceedings of parliament, could be referred to in order to assist in the interpretation of legislation, overturned 717 years of practice. A big mistake.

It has led to the cynical manipulation of the parliamentary process whereby ministers speak ‘into the record’ in parliament, purely so their account can be used in court if there is any ambiguity in the legislation, or parliament amends it.

In Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, Lord Justice ‘Online’ Briggs said the Court of Appeal had to change the rules ‘so as to bring them into compatibility with the intention of the relevant legislator, mainly the Civil Procedure Rule Committee’.

In one of my own cases we are challenging the Criminal Injuries Compensation Authority’s prohibition on any payment being made to a widow or widower in respect of a murdered spouse’s loss of earnings if the spouse was past retirement age.

The case involves major constitutional issues, but part of the First Tier Tribunal’s reasoning was: ‘The fact that none of the consultees raised any point about the intention to end dependency payments to the state pension age of the deceased – an intention clearly set out on the face of the consultation – in our judgement reflects the absence of concern over the fairness or legality of the proposal.’

So was someone expected to anticipate that their over-retirement-age working spouse would be murdered?

Oh, by the way, if you now feel the need to respond to all government consultations, then take note. There have been 3,619 in the last eight years, almost exactly two every working day. There are currently 106 open consultations.

Would it not be simpler to have some sort of parliament with elections and all that?

Kerry Underwood will be delivering a course on personal injury reforms in various locations in May and June 2017. Go to www.underwoods-solicitors.co.uk/personal-injury-reform-course.htm for more information

Kerry Underwood is senior partner at Underwoods Solicitors

@kerry_underwood kerryunderwood.wordpress.com

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first tier tribunal