Whiplash reforms: What needs to happen for the reforms to become law?

Commitment to whiplash reform

The Government remains committed to whiplash reform. This week, the Queen referenced the Civil Liability Act amongst a list of the Government’s achievements in her prorogation speech to Parliament, and the Justice Minister Chris Philp responded to a Parliamentary Question about the reforms, confirming that April implementation “remains the Government’s intention”.

However, we fear that best intentions may not be sufficient. A Ministry of Justice spokesperson recently confirmed that the Civil Procedure Rules (CPRs) and Pre Action Protocol for whiplash reform won’t be published until January. We explore how this delay may put the reforms at risk.

The Civil Liability Act 2018

The Civil Liability Act sets out the framework for whiplash reform. Under the terms of the Act, secondary legislation is required to confirm the detail of the reforms, including tariffs, medical reporting and alternative dispute resolution. The reforms cannot happen without secondary legislation.

Secondary legislation

The Act specifies that the secondary legislation will take the form of Statutory Instruments (SIs), which will be subject to the affirmative resolution procedure. This means that the SIs require the positive endorsement of both Houses of Parliament to become law. An SI is usually agreed without a debate or vote, but opposition MPs can force either if they are so minded. Both Houses must back the SI for it to become law.

In practice, SIs are rarely challenged. The last time a draft SI subject to the affirmative procedure was not approved by the House of Commons was in 1969.

Timing

The CPRs to enact the whiplash reforms are now expected to be published in January, after which the SIs – as the parliamentary method of updating the CPRs – will be laid. With the reforms due to be implemented by April 2020, there can now only be a very short window between the laying of the SIs and the reforms going live.

Impact of a general election

Most political commentators expect there to be a general election before the end of the year. As soon as the general election is announced, there will be a period of purdah – five weeks during which, as part and parcel of electoral rules, there can be no communication on the progress of the whiplash reforms. This will significantly impact on insurers’ ability to prepare.

Of even greater concern is the fact that neither Labour nor the Liberal Democrats support the reforms. If an election is held before the SIs are laid, and a party other than the Conservatives comes to power, it is likely that the whiplash reforms will fall away altogether.