Consultations: What are they good for?
John van der Luit-Drummond deliberates whether the government is making a disingenuous attempt to engage with claimant lawyers over reforms to PI
As the first serving minister of state to appear at the Association of Personal Injury Lawyers's (APIL) annual conference in nine years, Lord Edward Faulks QC could be forgiven for thinking his speech would be seen as real engagement with claimant lawyers. Perhaps he thought it would be the beginning of an entente cordiale with a profession that is becoming increasingly hostile to government reforms.
Of the justice ministers available, one has to question whether Faulks was the best candidate to speak at the conference. Yes, he has a background in the personal injury (PI) sector but, as he explained in a Lord's speech in November 2013, the 1 Chancery Lane silk and former special adviser on so-called 'compensation culture' to the Department of Constitutional Affairs has spent a 'professional life patrolling the borders of the law of negligence, acting for public authorities, the emergency services, and professionals'.
While the perfect emissary to spout the government's future vision, Faulks should have been under no illusion that his words would be met with more than a healthy amount of scepticism. Indeed, the hollow laughter that followed the minister's statement of 'confidence' in the insurance industry passing on savings, made from raising the small claims threshold and abolishing general damages, to its customers indicated that this was a tough crowd.
Faulks's warning that there would be no retreat from plans to reform the PI sector will have left the lawyers present wondering what exactly the point of the forthcoming consultation exercise is: in truth, replying to Ministry of Justice (MoJ) consultations have been an exercise in futility for lawyers of late. Billed as a chance to change policy, they never amount to much else than consternation and head scratching by those who have taken the time to reply to them. We have seen it all before.
Upon publication of the ministry's Transforming Legal Aid: Crime Duty Contracts consultation in 2014, Chris Grayling decided to raise the number of duty contracts to 527; a derisory increase of just two more contracts than was originally proposed. Then there was the October 2015 proposal to close 91 courts and tribunals, following which - despite heavy opposition from practitioners and the Law Society - the decision was made to close 86 'underused' courts.
The result of this upcoming consultation is undoubtedly a foregone conclusion. If the ministry stays true to form, we can expect a few minor concessions to its reform plans while the bulk of its controversial policy remains firmly rooted in place. As with previous consultation exercises, this is less of an olive branch, or proof it has actively considered the responses it received, and more a disingenuous attempt to look as if it is has listened to anyone other than those it wishes to.
Andrew Twambley, managing partner of Amelans Solicitors and spokesperson for the Access2Justice campaign, said the minister seemed happy to accept the insurance industry's case at face value, despite serious doubts about its data on claims incidence, fraud, and insurance premiums. 'Lord Faulks has closed his ears to all but the insurance industry,' said Twambley. 'Is he justice minister or insurance minister?' Now there is a question that needs answering.