Jury trials, the so-called compensation culture and mental health are three key issues facing parliament, explains John Ludlow

It is rare for governments to back down, even when the evidence is clearly against them, so it was particularly pleasing to see the Attorney-General withdraw his statutory instrument to remove juries from fraud trials on 25 November.


The Law Society, in particular, had spearheaded the campaign against the proposal, with help from Justice and the Bar Council, calling on the government to utilise active case management as a more effective way of reducing the length of complex criminal trials. An early day motion, prompted by the Society, received more than 70 signatories from MPs of all parties.


In the end, Lord Goldsmith had no choice. He faced almost certain defeat in the Lords in the debate on the order, and a threat from the opposition parties to use the Fraud Bill to block a further move on his part in the future.


However, the matter is far from over. While the Attorney-General has promised to hold discussions with the opposition and to seek a compromise, he has indicated that whatever the outcome of talks, jury trial would be limited in serious fraud cases. A 'compromise' in his mind could possibly involve cases either being heard by a panel of three judges; a single judge sitting with two magistrates; or a single judge sitting with two expert lay assessors. It is far from certain whether this would be acceptable to the Society and others. In such circumstances, the fight may need to go on.


Peers were also somewhat critical recently of the Compensation Bill, something of a flagship measure for the prime minister. While few doubt the government's good intentions here - to discourage frivolous negligence claims and to tackle risk aversion - there is some disquiet about their methods.


Part one of the Bill simply consists of a single clause - now commonly referred to as the 'negligence clause' - which will allow the courts to look at whether a particular activity is 'desirable' or not before deciding whether a breach of a duty of care has taken place. The government claims that this is merely a restatement of the law as it stands, and not an amendment, and that it does not in any way lower the duty of care. But few peers seem convinced by this. Some question what the phrase 'desirable activity' actually means, while others fear that the courts will feel obliged to reinterpret the standard of care on the back of it.


Almost certainly this is not the government's intention. But if it prevents someone with a genuine claim from receiving damages, or encourages people to take dangerous risks, then it cannot be right. The Bill would be improved if this clause were taken out.


Part two of the Bill is far more welcome, at least in principle. Its ten short clauses and one schedule set out a scheme to regulate claims managers, something which the Law Society has been calling for and is long overdue. But as with so much modern legislation, it is all rather skeletal and lacking in detail in crucial areas, so much so that one front-bench peer called it 'well meaning... but premature'.


The Delegated Powers and Regulatory Reform Committee have already criticised ministers for the sheer number of 'significant' delegated powers in the Bill, as well as 'the lack of a sufficiently coherent policy framework'. They have called for 'extensive amendment' to the Bill as it goes into Grand Committee, something echoed by many peers themselves.


In other areas, the government has perhaps avoided confrontation by a policy of 'go slow'. The Mental Health Bill, for example, has still not been published, surely the last major piece of legislation in this session still to be waiting in the wings.


To many, the story of the Mental Health Bill has become something of a farce. The measure has been expected in every Queen's Speech since 2001, and since then we have had two draft Bills and two select committee enquiries. A recent rumour suggested that the Bill proper would be published on 1 December, but with this date now passed, fresh speculation suggests a slot early in the New Year. Certainly, if it is not published soon, the government will run out of time to see it through before the autumn.


Another shelving would suit many of course, as there are few supporters of this rather Draconian measure. Clearly there is a split in the cabinet over this issue, though ministers would be wise to decide once and for all whether they really want to see the Bill through. The present continued uncertainty serves no purpose at all.


Of course, not all parliamentary work takes place on the floor of the House. In recent years, the Commons select committees have become far more important and influential and, in many ways, the constitutional affairs committee has made much of the running here. Its most recent report, on small claims, published last week, has recommended raising the limit for both personal injury and housing disrepair to £2,500 (see [2005] Gazette, 8 December, 5).


While lawyers' organisations, including the Law Society, have argued against a rise from the present £1,000 limit, the committee's proposal is certainly preferable to raising it to £5,000, as was suggested last year by the Better Regulation Task Force. The higher figure would see the majority of personal injury claims falling into the small-claims system, a clear disadvantage to claimants in more complex cases. The government is carrying out its own research on this issue.


The committee's latest enquiry is on the so-called 'compensation culture', and is looking at the law of negligence and lawyers' fees, as well as the Compensation Bill and the NHS Redress Bill. The Law Society, together with the Association of Personal Injury Lawyers and Motor Accident Solicitors Society, gave oral evidence to the committee this week.


John Ludlow is head of the Law Society's parliamentary unit