Over two years ago, the lord chancellor issued a consultation paper seeking views on how the discount rate should be set under the Damages Act 1996. Despite continued low yields on index-linked government securities, no decision has yet been reached.
A cynic might observe that justification for a change that will meet the resulting disadvantages being suffered by those with long-term injuries will, in part, abate as rates rise as forecast during 2015. Against this backdrop Joshua Rozenberg’s observation that ‘the prime minister should not have given the job of lord chancellor to a non-lawyer who still harbours political ambitions’ will strike a chord with many lawyers.
When the Damages Bill was debated in the House of Lords in 1996, Lord Ackner was concerned about the implications of what is now section 1(4) of the act, requiring the lord chancellor to consult the Treasury before making an order determining the rate of return under section 1(1).
As Lord Ackner put it: ‘one does not seek the advice of someone who is parti pris… [because]… it is wrong… to consult a potential defendant as to what he thinks the interest he should pay [should be] on the damages that sooner or later he will be ordered to pay’. Although the point did not carry, it was thoughtfully made and I suspect it would have been put with even greater force under the present constitutional arrangements.
Although not the exercise of a judicial function, the power under section 1(1) has quasi-judicial characteristics. While other ministerial roles involve the exercise of such powers, it brings little comfort to hear Chris Grayling’s officials say ‘it is unnecessary for the office of the lord chancellor to be held by a lawyer now that the post-holder is no longer the head of the judiciary or entitled to sit as a judge’.
While at its most basic level that statement holds superficial and simple attraction, it ignores the fact that the powers the lord chancellor holds are of a special nature, integral to the rule of law and our justice system. They demand a guardian that recognises this. The failure of Chris Grayling to make a decision on the discount rate is, at the very least, starting to look like an abdication of responsibility.
Readers can draw their own conclusions as to what it might amount to at its worst.
Richard Edwards, Potter Rees Dolan Serious Injury Solicitors, Manchester