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Legislation watch

February 2020

Motor insurance: amendment of the Motor Insurance Directive. The now infamous decision of the CJEU concerning a Slovenian tractor in Vnuk in September 2014, produced an interpretation of "use of a vehicle", for the purposes of the compulsory motor insurance regime, which was wider than the definition contained within the Road Traffic Act 1988, and thereby set in motion a review of the legislation both in the UK and Europe. In May 2018, the European Commission presented proposals to amend the Directive and it came as a surprise when they proposed to adopt the wider definition from Vnuk. In February 2019 the European Parliament voted for amendments that would revise the Commission's proposal on scope, by proposing to restrict compulsory cover to vehicles "in traffic" defined as being on a public or private road, but not in a closed area inaccessible to the public, as well as exclusions for motorsports and for new vehicles such as Segways and electric bikes.  The new legislative term began on 2 July 2019 and in October the Conference of Presidents agreed to resume the consideration of this work. In December, the Council set out its own negotiating position, which is narrower than the Parliament's proposal, and resembles the Commission's original proposal more closely. The three institutions are now negotiating on the proposal in meetings which are known as trilogues. The first trilogue took place on 29 January 2020 and was an opportunity for the parties to explain their respective positions. The next meeting is due to take place on 4 March 2020. Interestingly, the Council's proposal is to allow a transposition deadline of 24 months, by which time it seems likely that the Brexit transitional period will have ended. The amendments will still be relevant though if the UK plans to maintain regulatory alignment in the area of motor insurance. 

Courts and Tribunals (Online Procedure) Bill. The Courts and Tribunals (Online Procedure) Bill which was introduced to the House of Lords in May 2019 was due to establish a new Online Procedure Rules framework to support the use of online procedures in civil, family or tribunal cases, together with an Online Procedure Rule Committee (OPRC). The Bill failed to complete its passage through Parliament before the end of the session, meaning that the Bill made no further progress. Although the new government would be able to reintroduce this legislation, it was not in the Queen's Speech and there is currently no sign of it being reintroduced.

Fatal Accidents Act 1976 (Remedial) Order 2020. In May 2019, the MOJ published a proposed remedial order which provides for the award of bereavement damages under the Fatal Accidents Act 1976 s.1A to be available to a person who has cohabited with the deceased person for a period of at least two years immediately prior to the death. This rectifies an incompatibility with the European Convention on Human Rights 1950 art.14 read with art.8 identified by the Court of Appeal in Smith v Lancashire Teaching Hospitals NHS Foundation Trust (2017). Following its publication the Joint Select Committee on Human Rights sought views on the proposals. In July, the committee published its report welcoming the proposed changes but raising wider concerns with the bereavement damages scheme as a whole and recommending that the government undertakes a consultation with a view to reform. In February 2020, the government published its response (pdf) to the JCHR report. The government is not persuaded on the need for further reform, but will look at increasing the bereavement award to reflect inflation in the period since the previous increase in April 2013, and "hopes to complete the Parliamentary process in relation to the remedial order in a timely manner".

Law Commission draft Bill awaiting developments

Insurance contract law reform: draft Insurable Interest Bill. In April 2016 the Law Commission and the Scottish Law Commission published a draft Bill following their review of the issue of Insurable Interest, having previously made proposals for reform in 2008 and 2011. They were asked to return to the issue due to the increased numbers of requests to write policies which include cover for children, cohabitants and to insure ‘key employees’ for substantial amounts. The draft Bill was intended to reflect the proposals set out in the issues paper and the Law Commissions invited comments on the draft Bill by 20 May 2016 with a view to publishing a final draft Bill and report in autumn 2016. The project was then put on hold due to other priorities within the team but in June 2018 the Law Commission published their updated draft legislation. The extended deadline for comments was 31 October 2018 and in last year's annual report published in July 2019, the Law Commission stated that it was analysing responses to the consultation and would produce a report with final recommendations and a draft Bill in 2019, although we have seen nothing further to date. Read more in the Law Commission press release from June 2018.

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