(10 years ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this is a short but significant Bill. Its core aim is to provide reassurance to people who act in socially beneficial ways, behave in a generally responsible manner, or act selflessly to protect someone in danger by ensuring that the courts recognise their actions and always take that context into account in the event that something goes wrong and they are sued.
The Bill forms part of a much wider programme of measures that the Government have taken forward to tackle unjustified and dubious claims and reduce fears of litigation. That includes transforming no-win no-fee arrangements; banning referral fees paid between lawyers, insurance claims firms and others for profitable claims; and preventing inducements in the form of cash incentives or gifts being offered by claims management companies. The latter provision is in the process of being extended to the legal profession more generally through provisions in the Criminal Justice and Courts Bill currently going through your Lordships’ House.
Before telling the House a little more about the Bill, I should declare a personal interest. During my practice as a barrister before achieving my current position, I frequently represented local authorities, the police, the fire brigade, the NHS, the Medical Defence Union and, on occasion, claimants. I was also a special adviser to the Department for Constitutional Affairs on a report that led to the Compensation Bill.
The Bill aims to achieve its goal by requiring the court, when considering the steps that a person was required to take to meet a standard of care in a claim for negligence or relevant breach of statutory duty, to have regard to three factors.
First, Clause 2 provides that the court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. That will give reassurance not only to voluntary organisations but to individuals who perform acts of kindness or make other helpful contributions to the community. The Government have already taken a range of initiatives to promote volunteering and socially beneficial activity, and we are pleased to say that the number of people volunteering is steadily on the increase. For example, we have part-funded Join In, the Olympic volunteering legacy programme so recently referred to in your Lordships’ House, which has allowed sports clubs to flourish at grass-roots level, providing worthwhile activities for volunteers and aspiring athletes alike. The Step Up to Serve initiative was launched last year by His Royal Highness the Prince of Wales, and aims to double the number of young people aged between 10 and 20 participating in social action by 2020. We also continue to support the Alzheimer’s Society in recruiting supporters for those suffering from dementia.
Through the promotion of such schemes, we want to build a cohesive and altruistic society, and the Bill will help to further that aim by ensuring that people who want to get involved are not discouraged from socially beneficial action by the fear of being sued. A survey carried out in 2007 by the National Centre for Social Research and the Institute for Voluntary Action Research found that that issue was cited by 47% of those questioned who were currently not volunteering.
That message was confirmed in the important report published following the 2010 election by my noble friend Lord Young of Graffham, Common Sense, Common Safety. Four years ago I made my maiden speech on the publication of that report, an event that will be remembered only by me and possibly my wife. There was also the task force chaired by my noble friend Lord Hodgson of Astley Abbotts on Unshackling Good Neighbours. During the passage of the Bill through the other place, evidence was provided by the National Council for Voluntary Organisations which showed that this is still a matter of concern for many people, and is a significant factor in deterring those who would otherwise volunteer. I mentioned my noble friend Lord Hodgson. I know that he supports this Bill, for two reasons. First, he referred to it explicitly in his speech on the gracious Speech, and secondly he told me so in person last week. Unfortunately, he is unable to attend because he is abroad.
Section 1 of the Compensation Act 2006 attempted to address similar issues. It provides that the courts may look at whether requiring particular steps to be taken to meet a standard of care might prevent a desirable activity being carried out to any extent or discourage people from undertaking functions in relation to it. As the evidence from the National Council for Voluntary Organisations and others shows, this appears to have done little to reassure those who still say that worries about liability prevent them getting involved in socially valuable activities. The current Bill goes further than the Compensation Act did by making it a requirement for the courts to take account of the context where someone is acting in a socially beneficial way for the benefit of others.
Secondly, Clause 3 of the Bill requires the court to have regard to whether a person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others. This represents a change to the law, as case law does not currently require a court to do this. Clause 3 will oblige the court to weigh that factor in the balance when considering a person’s liability for negligence, or breach of a relevant statutory duty. This will reassure organisations, individuals and small businesses who have taken a generally responsible approach to the safety of others during an activity that the law is on their side.
It cannot be fair that such people feel pressured to settle speculative and dubious claims. So as well as giving that reassurance, we hope that this provision will give them greater confidence in resisting such claims and indeed—this is important—will help to deter such claims being brought at all. The clause is broadly drafted to ensure that it is relevant in a wide range of different situations, and will be available to bodies such as small businesses, volunteering organisations, religious groups and social clubs, as well as to individuals.
There has been some criticism that the Bill will undermine the rights of employees. Among these is the Association of Personal Injury Lawyers. I can reassure the House that this is not the case. There is nothing in this clause, nor in the Bill more generally, that will prevent somebody who has been injured bringing a claim, or prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it. In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity in which it is alleged the negligence occurred. The requirement to consider whether the defendant’s approach was generally responsible applies to the activity in the course of which the alleged negligence occurred. It will not, therefore, enable a body with a slipshod approach to safety to escape liability, for example, because its general health and safety record would need to be satisfactory over a longer period.
The third main area of the Bill, Clause 4, addresses another key area of concern, and gives reassurance to those brave members of the public who see another person in danger and come to their aid. It does this by requiring the court to have regard to the context of such selfless actions in the event that a claim for negligence or breach of a relevant statutory duty is brought.
Unfortunately, there remains a reluctance among some members of the public to intervene and assist those in danger or distress because they are afraid of being sued should something go wrong. This is illustrated by the fact that 34% of those who responded to a recent survey conducted by St John Ambulance indicated that they were concerned about the legal repercussions of intervening. Clause 4 therefore provides reassurance that heroic behaviour in emergencies will be taken into account by the courts in the event of a claim being brought. I recognise that St John Ambulance has expressed some concern about the wording of Clause 4. I am sure that, if we have the opportunity, we will debate those concerns in more detail in Committee.
In concluding, I reaffirm that the Bill does not seek to confer immunity from civil liability on anyone whose actions fall within its scope. Those who are injured through negligence will continue to have access to legal redress and the Bill will not affect the court’s ability to do justice in an individual case. The Bill ensures that the important matters it deals with are always considered by the courts, alongside all other pertinent factors as appropriate.
I believe that the Bill takes a fair and proportionate approach that will provide valuable reassurance to those who act responsibly in the course of an activity, heroically or more generally for the benefit of society by requiring the courts to take that into account, while ensuring at the same time that those who are genuinely injured through negligence can obtain redress where that is appropriate. I commend the Bill to the House.
Amendment to the Motion
Lord Lloyd of Berwick
As an amendment to the Motion that the Bill be now read a second time, to leave out from “that” to the end and insert “this House declines to give the Bill a second reading on the grounds that (1) it is unnecessary and the subject matter is already covered by Section 1 of the Compensation Act 2006, and (2) the sole purpose of the Bill is not to make new law but to send out a powerful message or signal on behalf of the Government to the Courts, which is not a proper use of legislation.”
Lord Lloyd of Berwick (CB)
My Lords, I thank the Minister for the way that he has introduced the Bill today, but on this occasion I want to go a little further, provided that it does not embarrass him too much. We all know that he is a distinguished and very successful barrister, so he must have given up a lot when he joined the government Front Bench. Still, at least it can be said that he has an interesting time on that Front Bench, because instead of appearing before judges in court he has had to face a number of Members of the House of Lords and ex-members of the Supreme Court, of whom it cannot yet be said, as one looks at them, that they represent a row of extinct volcanoes. Having said that, I have to warn him that on this occasion, and in relation to this Bill, I come to bury Caesar—in the shape of the Minister—rather than to praise him.
I will start by saying something about the course on which I am embarked. I do so because different views have been held as to whether such a course is appropriate. One view is that when a Bill has been passed by the elected Chamber, we should always give it a Second Reading in this House. However, that view is not supported in the Companion, and nor could this Bill possibly be described as a manifesto Bill so as to bring it within the Salisbury convention. If there were some parallel convention it would surely have been mentioned in the Cunningham report, but as far as I know it is not.
In any event, such a view is contradicted by history. There have in fact been four recent amendments in the past seven years. The most recent example is the amendment of the noble Lord, Lord Dear, to the Marriage (Same Sex Couples) Act 2013. That amendment did not succeed but there was not the slightest hint that it was inappropriate to have approached the matter in that way.
Secondly, there was the amendment moved by the Labour Opposition to the Health and Social Care Bill in 2011. It is important to note that they voted in favour of the amendment of the noble Lord, Lord Rea, as well as that of the noble Lord, Lord Owen. The amendment of the noble Lord, Lord Rea, would have wrecked the Bill.
Thirdly and nearer home, there was the Fraud Bill in 2007. The Conservatives were then in Opposition. Lord Kingsland moved a reasoned amendment. His argument was that if you are against a Bill in principle, the proper course is to move a reasoned amendment, otherwise you are impliedly accepting the principle. No other course, he said, was open to the Conservative Party. That argument succeeded and I shall be asking the House to accept the same argument on this occasion. It seems to be accepted on all sides of the House—including the Cross Benches—that a reasoned amendment at Second Reading is not in itself objectionable.
Finally, it has been said that a reasoned amendment is acceptable only in exceptional cases of great importance. To refuse a Second Reading here is to give this Bill an importance that it does not deserve. On the face of it, that argument seems to be counterintuitive. This Bill is indeed exceptional—not because it is of any importance but because it is of no importance at all. It is useless. It received negligible support in the Commons.
I remind the House of what actually happened in the Commons. There were only two Back-Bench speeches on the government side. One was by Sir Edward Garnier, a former Solicitor General. He opposed the Bill in the strongest terms. He described it a silly Bill. He said it would be greeted with “derision” by the judges. Mr Dominic Grieve, a former Attorney-General, described it as “utter tosh”. We should listen to what former Law Officers have said, coming as they do from the government side. They should know. So this is not the sort of Bill of which it could be said that denying a Second Reading is in some way being discourteous to the Commons or that we should give it a Second Reading out of respect. That is all I have to say on why I am approaching the Bill in the way I am.
I will now say something about the Bill itself and will start by summarising what the Government hope to obtain by it. This has already been done by the Minister but I wish to add a few footnotes. The Bill, it will be remembered, has three operative clauses—to encourage volunteering, to tackle the so-called compensation culture and to encourage, or at least not deter, brave actions. On Clause 2 the Lord Chancellor relied on a survey of 300 people carried out seven years ago, in which 47% of them said that they would have volunteered but for the fear of being sued. That seems to be the sum total of all the evidence the Lord Chancellor had to support the clause. His view on the matter, however, was contradicted by a recent Cabinet Offence paper which states that, on the contrary, volunteering is doing well and that section of the community is thriving.
More importantly, it was contradicted from the Government’s own Benches by a former Minister for Civil Society, Nick Hurd, to whom a great deal of credit is due for all his tireless efforts in this area. He told the Commons that the number of volunteers is rising, not falling: but it may not matter, for the evidence of the National Council for Voluntary Organisations warns that this Bill is not going to make any difference one way or the other, so I leave it at that.
Turning to Clause 3 on the so-called compensation culture, the Lord Chancellor said that claims by employees against their employers have gone up by 30% in the past three years. No one seems to know where that figure comes from. The evidence the other way is that workplace claims have actually gone down by half in the last 10 years, and half of those claims were for less than £5,000. The latter view was the view supported by the noble Lord, Lord Young, in his report published in 2010. His view was that the so-called compensation culture is based on perception—encouraged, as it always is, by the media—and not on reality.
That view was also taken by Lord Dyson, the Master of the Rolls, in a lecture he gave last year entitled, Compensation Culture: Fact or Fantasy?. Again, it may not matter because it is the Government’s case that this Bill is not going to make any difference. In that connection, I am referring to paragraph 23 of the Government’s impact assessment which states that any difference this clause may make will not be substantial, and that if there is a problem, it can be solved only by education, not by legislation.
Finally, as to encouraging heroism, the Minister referred to ambulance drivers. But there was a far more significant piece of evidence against it from the Fire Brigades Union. It described Clause 3 as a very dangerous clause. For years, the fire brigade’s advice to the public in the case of fire is to get out as quickly as possible and stay out. It thinks that Clause 4 undermines that advice. If a member of the public enters the scene of a fire to rescue someone, he puts at risk not only his own life but the lives of the firemen who may have to rescue him as well. The Fire Brigades Union gave two graphic illustrations of when that has happened in practice.
Those being the purposes which lie behind the Bill, I come at last—I am afraid it has taken a long time, but I shall be quicker from now on—to the two reasons for rejecting this Bill. The first is simple enough. The Bill is unnecessary. The subject matter of all three clauses is already adequately covered by Section 1 of the Compensation Act 2006, to which the Minister made scant reference in his speech. I thought that it had always been the Government’s case that this Bill does not change the law. The key thing about the Bill, according to the Lord Chancellor, is that it simply lays down a set of principles. Mr Vara, the Parliamentary Under-Secretary, describes is as a consolidating Bill. That is why, although it covers exactly the same ground as Section 1 of the 2006 Act, this Bill does not purport to repeal that section. If this Bill becomes an Act, they are apparently to stand side by side on the statute book. The Bill may not add much but it does no harm. Until recently, that has been the Government’s case—it does not change the law.
However, quite suddenly, on the third day in Committee in the Commons, the Government changed tack. According to Mr Vara, the Bill does change the law. He gave this reason. Whereas, under the 2006 Act, the judges “may” take certain things into account, under this Bill, the judges “must” take those very same things into account. That applies to all three operative clauses of this Bill. Which is it to be? If this is a consolidating Bill, what is it that is being consolidated? Is it “may”, as under Section 1 of the 2006 Act, or is it “must”, as under this Bill? That is the question to which we are entitled to know the answer.
If it is “may”, the Bill is wholly unnecessary and all it does is add confusion. If it is “must”, the change is crucial. Will the judges be bound to have regard to these three clauses, even though, on the facts of the case before them, they are wholly irrelevant? How are they to comply with this duty which has been imposed on them? Are they to say, in every negligence case, “I have had regard to this Bill”, so that people realise that they are complying? That seems to be what the noble Lord is saying now. If so, this is yet another case—and a very bad example—of the Government telling the judges what to do and how to exercise their discretion. That is sufficient reason for regarding the Bill as wrong in principle and rejecting it.
There is a further reason for taking this view. In truth, the Bill is unamendable. That was the view taken by the Law Society, and it was right. The Bill is so defective in all three operative clauses that the only feasible amendment is to take each of the three clauses in turn and remove them from the Bill, one by one. That was the view taken by the Labour Opposition in the other place. They moved an amendment to remove Clause 3. They might just as well have tabled amendments to remove the other two clauses. That is what I shall seek to do in Committee if the Bill is given a Second Reading. If I succeed, we shall have an Act which, after it has been brought into force under Section 5, will consist of nothing but its Title. I wonder what legal historians will make of that.
I turn even more briefly to the second reason set out in my amendment. The Lord Chancellor has said over and over again that the purpose of this Bill is to send out signals—signals to the judges and signals to the public. I will say no more about sending out signals to the judges. What about signals to the public? If, as we are told, the intention is, for example, to increase the number of volunteers, or to reduce the number of spurious claims, surely the way to do that is for Ministers to appear on television and write to the papers. Are potential volunteers somehow supposed to become aware of the Bill and say to themselves, “Now it is all right; now I can volunteer; now I can sleep easily at night”? Nobody in their right mind could take that view of what would actually happen as a result of the Bill. If so, does it not follow that the Bill is a misuse by the Government of the legislative process? I say again—I and many others have said it many times—that the purpose of legislation is to make law that can be enforced in the courts. It is not to send out government messages, however well intentioned. I beg to move.
Lord Beecham (Lab)
My Lords, the prisons are in crisis—understaffed, overcrowded, with a rising incidence of self-harm and suicide. The judiciary complains of the difficulty, delay and cost caused by the increase in unrepresented litigants denied legal aid. The magistracy is greatly concerned about the decline of local justice, exacerbated by court closures and the increasing reliance on professional district judges. An untried and risky change in the probation service is under way, beset by the loss of experienced staff and reports of confusion and disorganisation. The Lord Chancellor’s response is what can only be described as another Grayling gimmick.
Two years ago, the Lord Chancellor celebrated his arrival in office by pitchforking unnecessary provisions into the then Crime and Courts Bill, supposedly to protect householders from prosecution if they used force to defend themselves or their property from intruders. It would be interesting to learn in just how many cases that measure has been invoked. This autumn, we have a five-clause, 20-line, one-page Bill—one of the shortest on record—designed to meet another non-existent problem: the unfair or, alternatively, chilling effect of the so-called compensation culture on those who might face a claim for compensation for negligence or breach of statutory duty while,
“acting for the benefit of society or any of its members”.
From bash a burglar to hug a hero in two years.
Such was the significance of the Lord Chancellor’s proposed measure that of the 18 witnesses he invited to give evidence in support of the Bill, only five bothered to turn up. Two of those were fire authorities. The Greater Manchester fire authority was particularly exercised by the fact that it had faced two claims for compensation by people who had tripped over fire hoses in the vicinity of an accident. Quite what difference the Bill would have made to the outcome of such a curious claim is unclear. Perhaps the Minister would care to elucidate.
By contrast, all five witnesses invited by the Opposition attended. One of them, representing the Law Society, was treated to a most discourteous and offensive attack by the Minister, Mr Vara, who is clearly a graduate of the Eric Pickles political charm school. His performance only underlined how fortunate we are to have the Ministry of Justice represented in this House by the noble Lord.
The Second Reading debate occupied all of an hour and a half, with two Back-Bench speeches, one—as we have heard from the noble and learned Lord, Lord Lloyd—by the distinguished former Conservative Solicitor-General, Sir Edward Garnier. The Lord Chancellor did not condescend to stay for any speeches, even Sir Edward’s. He did not even extend the courtesy of staying to hear Sir Edward speak on Report and at Third Reading. Perhaps he anticipated the forensic dissection of this flimsy foray into legislative vote-catching. Not a single government Back-Bencher spoke in the debate in Committee.
The Bill starts with the premise that volunteers are deterred from helping individuals, or society as a whole, for fear that they might be sued if things go wrong because of the alleged compensation culture which insurance companies and the media constantly denounce. There is very little evidence to support that claim. Even the noble Lord, Lord Young of Graffham, who is not in his place—that ermine-clad St George, constantly in search of regulatory dragons to slay—observed that the so-called compensation culture was more a matter of perception rather than reality. As the noble and learned Lord, Lord Lloyd, has pointed out, that view was explicitly shared recently by Lord Dyson, the Master of the Rolls.
The irony is, of course, that banging on about a compensation culture is itself likely to create the very apprehension that the Bill purports to allay. The reality is that anyone seeking compensation has to prove, on the balance of probabilities, that the defendant has been negligent—that is, to have failed to take reasonable care—or in breach of a statutory duty, and that that has caused the damage that is the subject of the claim. Nothing in the Bill displaces that test and nor should it. If, as a result of my careless driving, a third party suffers injury, why should the fact that I may have been engaged in some voluntary service—perhaps taking an overexcited Minister to a therapy session, for example—in any way affect that third party’s right to compensation, even if he was my passenger?
The position was well summarised by the Minister, Mr Vara, in the Public Bill Committee:
“Nothing in the Bill suggests that it gives immunity from civil liability. It also does not change the standard of care that is generally applicable. That is and remains what the ordinary and reasonable person should have done in the circumstances. The Bill simply requires the court to have regard to certain factors in deciding what steps should have been taken to meet that standard of care in a particular case. It does not tell the court what conclusions to draw or prevent a person from being found negligent if the facts of the case warrant it”.
In which case, one might ask, what is the point of the Bill? He went on to muddy the waters:
“In a finely balanced case, if the court’s consideration of these provisions tipped the balance in favour of a defendant who had acted for the benefit of society, demonstrated a generally responsible approach towards the safety of others … or intervened to help somebody in an emergency, we would welcome that outcome”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 9/9/14; col. 63.]
I suspect that the welcome would not be shared by the injured party, particularly if it allowed the insurer of the defendant—if he or his employer was insured—to avoid paying compensation.
Moreover, the courts would have to engage with interpreting the wording of the Bill, which, to put it mildly, is highly problematic. Take Clause 2, which requires the court to,
“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members”.
How would one define “the benefit of society”? Would that proviso protect somebody who negligently inflicted injury while acting for the benefit of a “member of society” who happened to be doing something inappropriate or even criminal?
Clause 3 is similarly opaque, with its reference to its requirement for the court to,
“have regard to whether the person … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.
What on earth constitutes a “generally responsible approach”? As the General Secretary of the Fire Brigades Union—the members of which risk life and limb daily to protect the public—put it,
“the question of how an employer deals with … situations is not a matter of the general perception of their responsibility … The question of the employer’s general responsibility … comes down to the specifics of how they have planned, prepared and resourced the particular incident”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 4/9/14; col. 21.]
To cap it all, we have Clause 4, “Heroism”, which appears to be the stuff of Greek legend or the annals of Boy’s Own Annual. The court is solemnly charged with the duty of having regard to whether,
“the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s … safety or other interests”.
We all salute those who risk life or limb to rescue others, whether they do so as part of their job—as fire or police officers, for example—or simply as courageous citizens, like the recent tragic case of the doctor who died trying to save others from drowning in the seas off Cornwall. But where is the evidence of claims for damages by the subjects of such brave and selfless interventions against those endeavouring to help them? For that matter, where is the evidence that the present state of the law deters such brave responses to emergency situations? And what, after all, constitutes an heroic intervention?
There is another aspect of this defective Bill which causes concern; namely, the possibility that references to breaches of statutory duty imply a potential defence for employers, or perhaps for those with other statutory duties—for example, in the realm of care—for acts which cause damage or loss. Perhaps the Minister could clarify the Government’s intentions in this respect, assuming of course that they are conscious of having any.
If, as I hope, the noble Lord can confirm that the Bill is not intended in any way to diminish the existing protection to employees or others, we are left essentially with a Bill which is designed to send a message to volunteers—a message to counteract the possible, but unproven, effect on volunteering of a reaction to the compensation culture mythology which the Government sedulously peddle on volunteering. This would in effect merely echo, as we have heard from the noble and learned Lord, Lord Lloyd, the provisions of the Compensation Act 2006—a well intentioned but, I have to say, not particularly compelling piece of legislation on somewhat similar lines but without the surrounding hyperbole or loose phraseology. It is hardly surprising that the Delegated Powers Committee says:
“There is nothing in this Bill”—
although, in all fairness, it did go on to say,
“which we wish to draw to the attention of the House”.
The Explanatory Notes to the then Compensation Bill declared that it was intended to,
“contribute to improving awareness … of the law … and to ensuring that normal activities are not prevented because of the fear of litigation and excessively risk-averse behaviour”.
However, importantly, they also went on to stress that the provision did not alter the standard of care or the circumstances in which such a duty is owed, and they explicitly affirmed that it did not extend to cases of breach of statutory duty involving strict liability or where carelessness was not an issue. Moreover, the notes stated that the,
“provision reflects the existing law and approach of the courts as expressed in recent judgments”.
In other words, the legislation was, in effect, otiose, and this proposed legislation is doubly otiose.
Sir Edward Garnier spoke powerfully both at Second Reading and on Report. He detected in the Minister’s speech during the Queen’s Speech debate in your Lordships’ House some lack of enthusiasm in relation to this measure. Is the Minister able, in the light of the vestigial information contained in the impact assessment, to reply to Sir Edward’s inquiry as to how many High Court or county court actions would have been decided differently if this Bill had been in force?
Sir Edward’s speech was a devastating critique of the Bill. He declared:
“I really do think that the courts will treat this Bill with derision … unless we are clear … that we are doing something to improve the situation in an intellectually sustainable and coherent way. I sincerely regret the fact that so far this Bill does not do that ... I am used to bits of Bills sending messages and signals—albeit that that is an improper use of legislation ... We do not think about what is in the legislation; we just think about the flags we are running up the flagpole in order to send a message”.—[Official Report, Commons, 20/10/14; col. 697.]
It will be gathered that the Opposition are not enthusiastic about this Bill. My right honourable friend Sadiq Khan, in winding up the Third Reading debate in the Commons, observed:
“The Bill will change little, but we will not oppose it today. We tried in Committee to make something of it, and it will now fall to the other place to attempt to give it purpose”.—[Official Report, Commons, 20/10/14; col. 705.]
The noble and learned Lord, Lord Lloyd, feels very strongly about the Bill. He regards it as trivial and I have to say that I agree with him. However, when it comes to seeking to defeat a Bill at Second Reading, the House is traditionally cautious. I recall the two Bills that the noble and learned Lord referred to—their passage through this House occurred in the four years that I have been here. In particular, I recall the Health and Social Care Bill—a major piece of legislation affecting a huge swathe of public services and for which neither of the governing parties had made any kind of provision in their manifestos. It did not seem unreasonable on that occasion for the Opposition to move that the Bill be not read a second time.
Frankly, I do not think that a Bill as trivial as this should attract such an amendment and we will not support it. It gives a trivial Bill far too high a profile for its contents, but also it is not, in my submission, necessary to deal with the Bill in that way. If the noble and learned Lord, Lord Lloyd, divides on it, I will advise opposition Members to abstain. We will endeavour to make some modest improvements to this Bill in Committee. Even if we succeed in those, frankly, it will add little to the state of the law, but in my judgment that is a better process for us to follow. Indeed, in his speech, Sir Edward Garnier called on the House of Commons—mainly, as it turned out—to introduce,
“a degree of common sense into … the … Bill before the other place gives it a thorough grilling”.—[Official Report, Commons, 21/7/14; col. 1204.]
Let the grilling commence.
Lord Phillips of Sudbury (LD)
My Lords, I agree word for word with what the noble and learned Lord, Lord Lloyd of Berwick, said in moving his amendment, and indeed with what the noble Lord, Lord Beecham, has just said.
Lord Pannick (CB)
May I remind the noble Lord that there is a list of speakers in this debate?
Lord Pannick
There is a list of speakers and next on the list is the noble Baroness, Lady Browning, who is expecting to speak.
Baroness Browning (Con)
My Lords, I am most grateful, particularly to the noble Lord, Lord Pannick, for coming to my rescue. Having done that, I hope he will not be disappointed by what I am about to say.
I support the Bill, and certainly the way in which my noble friend on the Front Bench brought it forward. The final remarks of the noble Lord, Lord Beecham, about dividing on the Second Reading of a Bill need careful reflection and I concur with his reservations over having to do so. There are times when the House recognises the importance of a Bill by perhaps stepping away from our usual procedures. I am not saying that this is an unimportant Bill; I have some issues with it on which I should like reassurance from my noble friend— none the less, I support it.
We are a litigious society, which I know is a generalisation. But the more litigious that we have become as a society, the more risk-averse we have become. Which is the chicken and which is the egg? Have we become more risk-averse because we have become more litigious, or vice versa? I have no polls, studies or focus groups to back up the generalisation, but I served for nearly 20 years in another place and dealt with 84,000 constituents. Since the Boy’s Own Annual—which I thoroughly enjoyed when my brothers received copies for Christmas—was published, I have seen a fundamental shift in the casework and issues brought to me by those running voluntary organisations and in our uniformed services. We are not in that era. Things have changed. If anyone wants a snapshot, to be reminded of just how things have changed, in this country a game of conkers is regarded as a dangerous sport. Conkers requires risk assessments. Some local authorities have chopped down chestnut trees to prevent conkers falling on people’s heads. That is the backdrop against which we look at the reasons why the general public have real concerns.
I shall look at this from the perspectives of two different groups of people. The first is that of the general public, people who do things on a genuinely voluntary basis—that is, supporting voluntary groups and organisations. Over the years, I have known a huge number of people who run these voluntary organisations, including the Brownies, the Girl Guides and the sea scouts. These are organisations for which people give up their time to promote within young people a sense not just of well-being but of purpose and of things that will fashion how they develop into mature, responsible adults. I take my hat off to people—often the busiest people—who give up their time to do that. Over the years, however, they have become more and more concerned when they take young people away.
I was a Devon MP, and it is quite common for the whole area of Dartmoor to be seen as one of those areas where you take young people to test the parameters of how they work as a group and what they do in an outward bound environment. Yet the people responsible for taking them have become more and more nervous of the responsibility because of the compensation culture, the risk-averse society and the need for risk assessments, which are important but have, perhaps, gone well beyond what a previous generation would have regarded as proportionate.
I believe that there is that feeling and that those people and society need reassurance. When I used to employ staff down at the other end, I would occasionally take someone in for the last weeks of term, when they were about to leave school at the age of 18, to give them a couple of weeks’ experience of what life was like here before they went on a gap year or to university. I always had to fill in a risk-assessment form. I remember the first time I had to do it and writing to the authorities in the House of Commons to ask, “What should I say is the biggest risk in having a young person of 18 in my office for two weeks?”. I was told that it was the risk of a terrorist attack.
Those are the realities of life that a lot of people have to deal with. It makes you think—there is a risk of a terrorist attack while having an 18 year-old working in an office down the Corridor. These are not just trivial things; they are things that responsible employers, caring parents, teachers and volunteers have to address every day of their lives if they are to pursue their wish to enable young people to take the opportunity of these types of activities. From that perspective, I believe it is very important for the Bill to give some clarity to what can be expected in terms of the legislation that goes with such activities.
There is another group of people for whom I should like some reassurance from my noble friend. Every year, I have the great privilege to host the ambulance service awards in this House. Each year, we see the most wonderful examples of heroism within a range of ambulance services—the NHS, private, third sector and, of course, those very important people who provide the Medevac relief in our armed services. We have heard testimony in this House from former chief constables about the dilemmas they have faced when, for example, a uniformed officer has gone beyond the call of duty and has disobeyed force orders to go into a pond or a lake to pull out someone who might be drowning. The problem for chief constables, as I believe the record of the House shows, is that if that person going in on their own, without back-up or support, gets into difficulties and is injured or even dies, the relatives or next of kin can come to the police force for compensation for the injury and damage that the police officer received while on duty. That would apply to just about all our uniformed services.
The debate has been small and amusing so far, but I hope that my noble friend will reassure me when he winds up that this piece of legislation will ensure that chief constables and those who lead and have to set out the day-to-day rules for our uniformed services will no longer have to feel that they must keep the people they employ on a string when they are faced with an emergency or something that puts the life of a person in danger. I see that the noble Lord is looking rather perplexed at this, but we have seen examples of it and have discussed exactly that in a Home Office debate during this Parliament, with former chief constables explaining what the difficulties are for them. I hope that my noble friend will be able to clarify that.
The noble and learned Lord, Lord Lloyd, in his opening remarks, said that he had come to bury my noble friend. Shakespeare, in all his glory, did not manage to save the Roman Empire, so I live in hope.
Lord Cotter (LD)
My Lords, the words “common sense” strike a chord. It is good that we are addressing this issue today. A point has been made that the main purpose of a Bill should not be just to send out a message. That is fair enough, but the Bill is useful in trying to bring more certainty and common sense to the life that we lead. I come to this as an ordinary member of the public, with a small business background rather than a legal one, so I bow to the legal brains that are here today. However, as an ordinary person there are many incidents and events that come to mind where caution has ruled. I do not remember the full details with confidence but there was one case where someone in a uniform waited for instructions from a superior before helping in a life-saving situation, whereas the instinctive act should have been to pitch in and help right away.
On a different point, I hope that the Bill will help the small business community, where I come from. In this sector, we are always well aware that big businesses have big organisations behind them, with legal and PR departments and all that sort of thing. The small business community can be at a disadvantage when such businesses come to defend a situation where they are right but worry that they do not have the time or resources to defend themselves.
I will keep this brief because I am interested in what other noble Lords have to say, but it is right that we have this debate and ask the Government to give reassurances, as happened in the other place. There are, rightly, concerns about the compensation culture and I hope that the Bill can help to address them. I look forward to the Minister’s response.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, there is much to be said against this Bill and much already has been said against it. Either it is intended and apt to change the present law or it is not. Despite the Minister’s valiant and, as ever, beguiling advocacy, I find it difficult to see how a court could find, in any of these clauses, anything which would lead it to a different conclusion on the facts of a case. I await an explanation of how that could arise.
However, if it is intended to change the law, I respectfully submit that that should be made altogether clearer than it is at present. Just what change is it intended to bring about? Is this deemed always to have been the law, or will the Act take effect only from the date of some future conduct, whether that be action or inaction? If it is not intended to change the law—if it is intended, rather, to send out a message—that should be made abundantly clear, too. As the noble and learned Lord, Lord Lloyd, has already suggested, if that is the position, it is not an appropriate use of the legislative process.
There are many legislative initiatives that are worth taking, and the Government are to be applauded for a number of recent ones such as those on FGM, confiscation of criminal assets, and the forthcoming slavery and trafficking Bill. By contrast, this Bill would essentially be a waste of legislative time and worse because, inevitably, it would bring with it unintended consequences, one of which would be the needless future waste of court time and legal expense in debating what, if any, effect it is intended to have.
One distinct curiosity about the Bill is that in essence it mirrors what Parliament enacted eight years ago in Section 1 of the Compensation Act 2006, which has already been mentioned. I differ from my noble and learned friend Lord Lloyd on one aspect of this because, frankly, it seems to me that the change in this proposed legislation from “may” in 2006 to “must” now will actually make no difference whatever. The Bill states that the court must have regard in all circumstances to these considerations—it does already. If it is of simply no relevance, it just discards that regard which it has had to them.
As the Explanatory Notes to Section 1 of the 2006 Act say, that section addressed,
“a common misperception, that can lead to a disproportionate fear of litigation and consequent risk-averse behaviour”.
It was intended to reflect,
“the existing law and approach of the courts as expressed in recent judgments of the higher courts”—
most notably, perhaps, the judgment of the noble and learned Lord, Lord Hoffman, in the well known case of Tomlinson v Congleton Borough Council in 2004, 1AC 46 at 82, where he stressed the importance of,
“the social value of the activity which gives rise to the risk”.
It is hardly surprising that in those circumstances Section 1 of the 2006 Act, which of course was enacted by a Government of a different political colour, has been recognised by the courts to have been of no help whatever. As Lady Justice Smith put it in 2011,
“section 1 of the Compensation Act 2006 did not add anything to the common law position”,
echoing what Lord Justice Jackson had said the previous year:
“The principle enshrined in section 1 of the Compensation Act 2006 has always been part of the common law”.
The other striking fact about Section 1 of the 2006 Act—a shorter and simpler provision than we have here but, frankly, with the same essential effect—is the length of time it occupied this House in the course of enactment. I have here a substantial sheaf of Hansard reports dealing just with Clause 1—extracts from Second Reading, three days in Grand Committee and Report—and, frankly, much the same arguments were being advanced then about that provision as are now being made about these proposed new provisions.
I will confine myself to quoting just a single passage, from the contribution of the noble Viscount, Lord Eccles, who said:
“Clause 1 was discussed for more than seven hours in Grand Committee, which may give some indication of the way in which it might be discussed in the courts in the land in future—at unreasonable expense, I suggest. The reason for the length of the debate was partly the question of what the clause meant and partly an attempt to change and interpret the clause to provide legal cover for the promotion of desirable activities. Thus desirable activities would take place with greater frequency. This discussion ended in some frustration, because all the attempts to find a legal way forward were unavailing. As the Minister said to us at the time, the Bill was trying not to amend the law but to take away doubt”.—[Official Report, 7/3/06; col. 648.]
He continued by suggesting that it was likely to introduce more doubt than it would remove, and that it would be unwise to agree it. Indeed, it was suggested that it should not stand as part of—in that case—the 2006 Bill, which of course contained other provisions.
Of course, it did stand part and it was enacted—although, as I have indicated, without in any way affecting the course of the law. Now it is proposed to superimpose upon our common law yet another such provision. Are we, one cannot help wondering, perhaps cynically, to expect, a few years down the line, a third Bill to demonstrate yet again some new Government’s keenness to underline that volunteering is a good idea and that compensation would not be too readily ordered when it would be discouraged?
With all that said, I shall not be voting in support of the amendment of the noble and learned Lord, Lord Lloyd. It is perhaps a nuclear option which should come into play only on the rarest occasions—and this Bill is not, as has already been said, worthy of it. Indeed, in the 2006 Act it could not have been used because, as I said, other provisions were included. Perhaps that should give one pause for thought, should it not? You have only to add some other coherent provision and you defeat this nuclear option—so I shall not be supporting it. Assuming, however, that this Bill survives the amendment, is read a second time and goes ahead, then, with respect, it will need full dissection and drastic, radical amendment. For my part, I would, reluctantly, give it a Second Reading.
Baroness Hodgson of Abinger (Con)
My Lords, I believe that this is a worthwhile Bill. Having read the Hansard report of its Second Reading in the Commons and listened to some of the previous speakers, I am aware that it is not without its controversial aspects. Nevertheless, the Government are to be congratulated on bringing it forward, and I am pleased to add my support.
Today, our society is in danger of becoming ever more insular. The effect of the Bill will be to encourage our fellow citizens to step forward to participate and to become more active members of their community. It will contribute to inspiring them to help others and to pay something back to society, while at the same time offering them reassurance and a degree of protection when things do not go entirely to plan or, as is inevitably the case, accidents happen.
In 2010, my husband, the noble Lord, Lord Hodgson, was asked by the Government to head a task force to examine what prevents people giving more of their time and money to charities and voluntary groups. In May 2011 it published its report, Unshackling Good Neighbours, which has already been referred to by the Minister. That report very sharply identified an evolving and rather depressing attitude in this country. It pointed out that the significance of,
“the prevailing attitude towards ‘risk’, the downgrading of the value placed on ‘common sense’ and on the enabling nature of English and Welsh Common Law. These factors together with a reluctance to extend any significant level of ‘trust’—not just among central and local Government but no less importantly amongst the general public”.
The evidence provided to the task force identified that guidance and regulations throughout civil society are often expressed in negative terms, reinforcing the view that a lawyer, with a writ at the ready, waits around every corner when something goes wrong. The report concluded that,
“an insidious mythology about being sued”—
is—
“deterring millions of Britons, volunteer organisations and charities from helping out more fully in society”.
Whether with friends and neighbours, in the workplace or in a public space, many people have, rightly or wrongly, become apprehensive of taking part in voluntary activities, helping others or intervening in emergencies due to these types of concerns. The “nanny state” and “health and safety culture” have without doubt been very off-putting and discouraging. As we have already heard from the Minister, the Lord Chancellor and the Secretary of State for Justice stated during the Bill’s Second Reading in the House of Commons:
“In a survey carried out by the NatCen Social Research and the Institute for Volunteering Research, worries about risk and and liability was an issue cited by 47% of those questioned who were not currently volunteering”.—[Official Report, Commons, 21/7/14; cols. 1191-92.]
During that debate, we heard numerous grass-roots examples from both sides of the House of the shocking ramifications of this unhealthy culture. Most disturbing were tales of people unwilling to involve themselves in emergencies because they were worried that the law would not adequately protect them should something go wrong as a result of their intervention. People have become frustrated by a poisonous no-win no-fee compensation culture, where I know the Government have bravely tried to restore the balance by way of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
A personal real-life example perhaps illustrates the difficulties that people who genuinely wish to help can encounter. I was on the Tube recently and, at a station, a very young boy rushed into the carriage. His mother and sister were following, but, before they could get on, the doors slammed shut, leaving them on the outside, and the train pulled out of the station. The boy became absolutely hysterical. The two people closest to him were men. They very kindly tried to talk to him and reassure him. However, as we drew into the next station, I could see how anxious they looked about what they would do. So I stepped forward and said that I would look after the boy and got off the train with him. The uniformed station master came and said that there had been a telephone call from the previous station and that the boy’s mother was coming to pick him up. But the point of the story is that the two men on the Tube were clearly very worried that, if they took the boy off the train, it could be seen as absconding with him, when all they were trying to do was help a little boy in trouble.
Of course, some of the examples that were cited in the other House were myths. In one, farmers in Sussex were said to be worried about salting the roads near their farms in icy weather because, if there was an accident, they could be held responsible. That was a myth. I have been told that carers of the elderly are not allowed to trim their toenails and have to call in a chiropodist. Is this myth or reality? I do not know. Sending for a chiropodist is expensive and takes time. I would have thought that trimming toenails is something that everyone does and surely most carers could be trusted to wield some nail scissors without inflicting grievous bodily harm.
I believe that people are innately good, and that this culture is causing untold damage in shackling our natural inclinations to be helpful, compassionate citizens. By allowing these kinds of fear-driven attitudes to permeate our society, we are doing a massive disservice not only to ourselves but to future generations and the long-term interests of our country. We must try to reverse it now before it is too late.
The Bill will perform a valuable function of closing the gap between perception and reality by reassuring people that the law will stand by them when they are acting in the best interests of other people. The measures will thus encourage participation in volunteering and other socially valuable activities, which could lead to a most welcome increased sense of community spirit.
What are the arguments against the Bill? As we have already heard, some are saying that it is not needed because courts should make judgments on the evidence alone. I am no lawyer and, as I know that there are many learned and eminent members of that profession in the House, I will not attempt to enter into any detailed legal debate. But surely common sense says that the intention of an action is very relevant, and thus ensuring that the context is always taken into account seems reasonable and fair. However, nobody should be immune from civil liability and the Bill does not seek to introduce that. It does not instruct courts as to the conclusions they should reach nor prevent people being found liable where appropriate.
I understand that some have tried to argue that the so-called compensation culture does not exist, but evidence does not bear this out. I am informed that in the past three years there has been a 30% increase in personal injury claims. Then there is the stress of the legal process itself. While for lawyers suing and court appearances are an everyday normal occurrence, for those outside the law who end up trying to defend a claim it can be an incredibly long and very stressful experience. It can take months, and even years in some instances, to resolve such a situation. Meanwhile, it hangs over the person psychologically, sometimes creating great anxieties about the outcome—both financial and social—and putting enormous strain on working and marital relationships. Even when it comes out right in the end, the person will have gone through the most stressful and distressing time to get there. I sometimes wonder whether lawyers really understand the very detrimental aspect that going to law can inflict.
When it comes to matters of social action, we should surely encourage and support people to step up and make a difference if they feel they can. This is a Bill of reassurance: it tells people that they can take the initiative to contribute to society without having to worry about ramifications, mistakes or unintended consequences. In short, it tells people that the law and the Government are on their side. It will make our country even more generous, proactive and socially engaged. Such a society will only continue to build its own confidence and grow into something more successful. I am proud that our coalition Government have made a commitment to encourage volunteering and involvement in social action; I am even prouder that we are now seeing it through with this Bill.
Lord Pannick (CB)
My Lords, unlike some of your Lordships, I am not disappointed by this Bill. When I see that the Lord Chancellor is bringing forward a legislative proposal, I worry about which valuable aspect of our legal system he is going to damage: judicial review, human rights and legal aid have all come under the cosh. It is, then, a pleasant surprise that the Lord Chancellor should be using valuable legislative time on a Bill which is so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow. Since neither of those gestures would be recorded in the Official Report, it is necessary to put one’s response into language.
The noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare. I cannot compete with that, but the Bill puts me in mind of what Basil Fawlty says of his wife Sybil in the celebrated television programme, “Fawlty Towers”. I hope that noble Lords will excuse this unparliamentary language. He said: “She should be a contestant on ‘Mastermind’. Special subject: the bleedin’ obvious”. The Bill is a statement of the legally obvious. I find it very difficult to believe that, if enacted, it is going to make any difference whatever to any case that becomes before the courts. The Government’s own impact assessment of the Bill, says, at paragraph 17:
“Both the possible reduction in case volumes and the size of any compensation payments are unknown, but are likely to be small”.
The Minister is a very fine advocate but not even he can persuade me that the Bill is, as he suggested in his opening remarks this afternoon, significant.
In opening Second Reading in the House of Commons, the Lord Chancellor, Mr Grayling, said that the Bill,
“is about bringing back common sense”.—[Official Report, Commons, 21/7/14; col. 1187.]
Your Lordships have heard about common sense this afternoon; it was mentioned by the noble Baroness, Lady Hodgson, among others. As far as the courts are concerned, common sense never went away. Leading judgments have established that: they establish that where appropriate and on the facts of any particular case, the court gives weight to what this Bill describes as social action, responsibility and heroism.
Let me give two examples. Sixty years ago, in the case of Watt v Hertfordshire County Council—this is from 1954 and in Volume 1 of the Weekly Law Reports, page 835—Lord Justice Denning, as he then was, said in the Court of Appeal that in assessing claims of negligence, it was necessary for the court to balance the risk against the end to be achieved. He said:
“The saving of life or limb justifies taking considerable risk”.
More recently, there was the case of Tomlinson v Congleton Borough Council, in Volume 1 of the appeal cases 2004 at page 46, which was already mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. That case concerned a hearing before the Appellate Committee of your Lordships’ House of a claim by a young man seeking compensation after he had dived into a lake in a country park. He had ignored safety warnings and, tragically, broken his neck. The Appellate Committee dismissed his claim. Lord Hoffmann, speaking for the Appellate Committee, said at paragraph 34 that, in assessing a claim for negligence or a claim under the Occupiers’ Liability Act, the court must consider,
“not only the likelihood that someone may be injured and the serious- ness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other”.
In his Holdsworth Club lecture on 15 March 2013, the Master of the Rolls, Lord Dyson, posed the question: “Compensation Culture: Fact or Fantasy?”. We have heard a lot today about compensation cultures. Lord Dyson analysed the case law and summed up for fantasy. There is simply no compensation culture in English law. I ask the Minister which judgments would have been differently decided if the Bill were in force. Mr Grayling’s answer at Second Reading in the House of Commons to such a question was to say that,
“this is not just about what happens in the courts … The Bill is designed to send a powerful message”.—[Official Report, Commons, 21/7/14; col. 1189.]
So the Lord Chancellor’s concern was with perception, not reality, and the Minister's speech today was to very similar effect.
If we are to bring forward legislation to deal with perception, three questions need to be answered by the Government. First, where is the evidence that such a damaging perception exists? I entirely recognise the force of the points made by the noble Baroness, Lady Browning, about her experience. I recognise that, but if legislation is to be brought forward by the Government, I would hope for some thorough analysis of available evidence. Where is it?
Secondly, if we are concerned about perception, why is it that the Minister and the Government think that a message, if sent by Parliament, will be received? As your Lordships have heard, the Compensation Act 2006 already gives power to the courts to consider very similar factors to those set out in the Bill. I recognise that the Bill goes a stage further, in that it would oblige the court to have regard to those factors, whereas the earlier legislation only empowered the court to have regard to such factors, but they are very similar factors. In any event, the Bill rightly still leaves the judges with the power to decide what weight, if any, to give to those factors. I cannot understand why the Government think that the Bill will be more effective in communicating a message than the 2006 Act. It is simply unrealistic to think that someone who is considering volunteering—far less someone who is thinking of jumping into a lake to save someone in peril—will consult Halsbury’s Statutes and reflect on the difference between the 2006 Act and the Bill.
The third question for the Minister on perception is whether this is really the most effective means of correcting a false perception, if false it be. The time, effort and money spent on enacting and publicising this Bill would surely be better spent on press releases and newspaper advertisements. The Bill is a public relations exercise unconvincingly disguised as a prospective Act of Parliament. The Minister is renowned for his ability to present the Lord Chancellor’s proposals in this House in a manner that makes them sound almost plausible—and I stress “almost”. The noble Lord is in this respect, as in all respects, the man who the draftsman of the Bill had in mind. He is concerned only to act for the benefit of society. The noble Lord is responsible and, to all of us, he is heroic but not even his admirable qualities, as utilised in defence of the Bill, can make it remotely credible.
I share much of the analysis of the noble and learned Lord, Lord Lloyd of Berwick, but I know that I am going to disappoint him because like the noble Lord, Lord Beecham, and others, I regret that I will not be able to support the noble and learned Lord if he chooses to divide the House on whether this Bill should receive a Second Reading. I hope that the noble and learned Lord will not divide the House because that may send precisely the wrong message about what it thinks of the Bill. This is a Government Bill that has been through the House of Commons. Its contents are not objectionable; they are simply pointless. Such a Bill is not worthy of provoking a fundamental conflict between the two Houses of Parliament.
Earl Attlee (Con)
My Lords, I am grateful to my noble friend the Minister for his explanation of this Bill, which I support. Before saying anything substantive, I would like to state how much I value our system of justice and the rule of law—JROL—which is the envy of the world. We know perfectly well that countries such as Russia will be in severe difficulties as long as they persist in loving a strong leader with a weak and corrupt JROL. But you can have too much of a good thing. We have a problem with the compensation culture in this country, and the Government have already taken some steps to deal with it. The problem is that many cases never get to court. Your Lordships have been talking about how the courts would deal with a case, but very often the claimant just gets paid out, because it is easier, and the plaintiff’s organisation decides to cease a commendable activity.
We are also getting into a situation where people are fearful of doing something wrong in an emergency, and then having to deal with litigation. Just for now, I will define an emergency as a situation where action has to be taken immediately in order to prevent the situation from deteriorating further. It is often much easier to do nothing, and frequently people are being incorrectly advised to do nothing. This is despite the fact that there are very few, if any, successful negligence actions in respect of emergency assistance, as your Lordships well know.
Only this morning my taxi driver explained to me that, on his statutory training course, he was advised that he should use his first aid kit only on himself, and not on a member of the general public or an injured motorist. Your Lordships will not be surprised to hear that this was because of the risk of being sued if anything went wrong. Now, we all know that this is completely wrong. But if that is what trainers are telling their students, we must not be surprised if the “do nothing” culture emerges. It certainly seems to me that there has not been much positive change since 2006.
All my life I have been trained that, if an emergency arises, I must do something. I have certainly never hesitated to get stuck in, because that is how I have been programmed. When I was 16 or 17, as a Stowe School CCF cadet, I went off on my own on a serious military internal security exercise with the local TA unit. At the time this was unexceptional, but now it would be a serious child protection matter. When I visited the Regular Army at about 17 years old I was allowed to drive heavy high-mobility vehicles over a severe cross-country route, including swimming the vehicle in the River Weser. This would be absolutely out of the question nowadays. Later, I did significant amounts of TA training involving military logistics. Although we took much greater risks than would be tolerated nowadays—for instance, with driver hours—I cannot recall any significant or life-changing injuries. The payback to society for the modest risk taken was very great indeed. In later years I was engaged in civilian aid operations in Bosnia and Rwanda, and in military operations in Bosnia and Iraq. I also survived for a considerable time as your Lordships’ government spokesman for transport matters in the House of Lords, despite the efforts of the noble Lord, Lord Davies of Oldham. So the seed was sown very early on.
Nowadays in my spare time I do a lot of work at the REME museum in Bordon, particularly with tanks and tank transporters. Obviously they are hazardous, but you can be trained in how to operate them safely and responsibly, and that is a useful skill for life. I have no doubt that there are youth groups and charities in the Portsmouth and Southampton areas that try to steer youngsters away from vehicle crime and perhaps gang culture. I could offer some fantastic opportunities for them in getting involved with operating a tank transporter or an armoured recovery vehicle. I know from experience that I could alter a youngster’s whole attitude and make it far easier to secure that all important first job, perhaps with a plant hire company.
The really sad thing is that I know any such scheme is quite impossible for health, safety and compensation-culture reasons. It is simply out of the question. These days, when cadets visit the museum, they cannot even be allowed to climb on the tank. Of course, youngsters outside of the cadets will still get their excitement and adventure but that might be from drugs, motor crime and other undesirable activities.
I turn to the Bill itself. As I understand it, the Bill is mainly concerned with negligence but also covers a breach of a statutory duty, though not a criminal matter. Does a statutory duty include the Health & Safety at Work etc. Act, particularly the Management of Health & Safety at Work Regulations? It would be helpful if the Minister could write to me explaining what is covered and what is not.
During the passage of the Bill in the House of Commons, Ministers seemed to be in some difficulty explaining what, if anything, the Bill did. In my time in government I found case studies very useful for explaining how the legislation worked, and particularly where the dividing line was. Officials hated case studies, and I suspect that this was because they did indeed explain exactly what was and was not intended. The alternative seems to be to let case law develop. I urge the Minister to use case studies to argue his position in Committee.
Some noble Lords think that the Bill goes too far or is unnecessary. I do not think it goes far enough. I do not think that a person should be liable for his actions in an emergency unless a perverse course of action was taken—in other words, no reasonable person with the experience of the person in question would have taken that course of action. In the unlikely event that your Lordships agreed such an amendment, that would surely change the law. It therefore seems to me that the Bill is amendable.
I do not have a problem with the noble and learned Lord, Lord Lloyd of Berwick, tabling his reasoned amendment, because the Bill is a relatively short and simple one. However, I disagree with the amendment’s merits. I think that we should give the Bill a Second Reading, while recognising that we will have quite a lot of work to do.
Lord Aberdare (CB)
My Lords, I start by declaring my interests as a trustee of St John Cymru Wales and as vice-chair of the First Aid All-Party Parliamentary Group. No doubt like some other noble Lords, I have received a briefing from St John Ambulance, which is of course the counterpart in England of St John Cymru Wales. There has been much discussion about the purpose of this Bill and what difference it will actually make. During the debate on the Queen’s Speech in June, I welcomed the announcement of the Bill, which I felt could help to achieve the laudable aim of persuading more people to volunteer or to provide emergency first aid assistance when needed without worrying about possible legal consequences of doing so. Having now seen the text of the Bill, and read and listened to the debates on it, I am not so sure.
The principal purpose of the Bill, since it is not at all clear to me whether or how it will actually change the existing legal position, seems to be the often-touted idea of sending a signal, both to the courts and to the rest of us, including potential volunteers and providers of emergency first aid help. However, if you are going to send a signal with any effect, it needs to be clear and unambiguous. It would also be helpful for the signal not to conflict with other signals that people expected to follow it are likely to receive. This Bill seems to fall short on those criteria, in at least two respects.
First, the Bill seeks to address an apparent concern that bystanders sometimes do not try to help in emergency situations because of fear that they may subsequently be sued for their actions. St John Ambulance commissioned research from ICM in August—which the Minister mentioned—to find out what factors might deter people from giving such help and whether this Bill would help to overcome them. The findings show that the key factor determining the likelihood of someone taking action in an emergency is having been on a first aid course. Some 55% of people with advanced first aid training would help, even with a life-threatening injury; while 55% of those with no first aid knowledge would not give first aid at all, even for a minor injury. The main inhibitor is that people lack the skills and confidence to know what to do and fear, possibly with some justification, that they may make the situation worse. Some 63% mentioned that concern as opposed to the 34% mentioned by the Minister concerned about possible legal repercussions. A rather small majority said that this Bill would make them more likely to administer first aid. Some 18% answered “more likely”, against 14% “less likely”, giving a positive balance of just 4%. One clear conclusion of this research is that the best approach to increasing the number of people willing to give emergency first aid—surely better than this Bill—would be to ensure that more people receive first aid training. One obvious way of doing that, which your Lordships have heard me mention before, would be to make such training mandatory in schools.
Secondly, the reference in Clause 4 to acting,
“without regard to the person’s own safety or other interests”,
runs directly counter to accepted first aid practice, as set out in the standard First Aid Manual developed jointly by St John Ambulance, the British Red Cross Society and St Andrew’s First Aid. This clearly states:
“Protect yourself and any casualties from danger—never put yourself at risk”.
What signal is this clause trying to send? Does it seek to encourage people to pile into emergency situations without any thought of the risks and dangers to themselves, which might indeed be viewed as heroic, but possibly in many instances also dangerous and foolhardy? Or should it encourage them to assess the risks and then take appropriate action, without of course feeling constrained by lack of skills or fear of legal consequences? Surely it is the latter.
One of the ways in which people are likely to hear about the provisions of this Bill and their effect in providing protection from prosecution when people act in a socially responsible or heroic way is through the process of receiving first aid training, but with the Bill as it stands the organisations providing such training would be forced to point out that it might remove such protection from people who act responsibly by taking account of their own safety before acting, as they are taught to do as part of their first aid training. That seems quite contrary to what the noble Earl, Lord Attlee, wants to happen in first aid training. Is that the message we want to send? I have considerable doubts about whether this Bill will anyway achieve the useful outcomes to which it is supposedly directed, but it certainly will not do so unless Clause 4 is amended to remove the phrase relating to personal safety and, ideally, replace it with a form of words that would emphasise the value and importance of responsible citizens learning first aid from as early an age as possible, as a means to being effective rather than counterproductive heroes.
Like other noble Lords, I am not convinced of the appropriateness of the nuclear option of denying the Bill a Second Reading, but if it goes into Committee I hope the Minister will make every effort to address the concerns that have been expressed today, particularly in relation to Clause 4.
Lord Hurd of Westwell (Con)
My Lords, I was brought up on a fundamental principle about legislation, which I sometimes feel your Lordships would do well to memorise. It is the following: if it is not necessary to legislate, it is necessary not to legislate. Of course, it is a sweeping statement, and everyone in this House will have occasion to disagree with it, but it is not a bad working principle—and it is a principle that is entirely neglected in this Bill.
Several of my noble friends—my noble friend Lady Hodgson in particular—made general speeches about the importance of volunteering and of not being frightened by the threat of prosecution. I entirely understood and agreed with all that, but where their analysis began to crumble seemed to be on the relevance of their concerns to the Bill in front of us.
The noble Lord, Lord Beecham, speaking for the Opposition, made an admirably cutting, caustic speech, and as he approached the crucial fence, I thought that he was going to take it in style—but, having glared fiercely at it, he turned resolutely away and did not take it. Several noble Lords, no doubt obeying some vestige of party solidarity, agreed with him, the argument being that the Bill is a tiddler, there is no particular harm and no particular good in passing it and we should preserve our nuclear explosives for some great cause—unspecified—which deserves it. I think that is a rather feeble way of running an Opposition, if I may say so: to make a very acute and shrewd, sometimes unfair, analysis of the Lord Chancellor’s proposals and then not take the obvious course of supporting the amendment.
I support the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, partly because I want to protect, so far as is possible, the principle I mentioned at the beginning, but partly because of the point he made about this business of sending messages. It is very common now to defend a Bill—a change in the law—on the grounds that it sends out a powerful message to some group in the population whom we wish to reach. We have all fallen victim to this at one time or another. I very rarely meet members of the population who have been bowled over or entirely convinced by the speeches made, or even by votes taken in this House. It does not work like that.
If you are going to encourage people to volunteer, you have to do what my son in the other place has been trying to do until recently—to persuade them to volunteer; to deal with their doubts and fears. It is a public relations exercise. That is not to say that it is useless or to be critical of it; it is necessary to persuade. Passing laws in this House or in the other place is not an adequate way of doing this, particularly when the differences between one text and another—for example between “shall” and “might”—are minimal, as has been analysed in this debate.
If you are contemplating a brave action which may carry some risk, such as diving into a pool or rescuing somebody from a dangerous situation, you are almost certainly taking a quick decision on the spur of the moment. You are not going to creep away and find a book to memorise the course of a debate in your Lordships’ House. So this is a bad way of sending a message. The message is good and well meaning, but we should not clutter the law book of this Parliament with such messages. If one were starting again and had plenty of time and no precedent, one could make a more glorious Bill than Section 1 of the Compensation Act. Nevertheless, we do not have that time and that luxury, and it is a mistake to think that we should gild the lily by passing this Bill.
Lord Kennedy of Southwark (Lab)
My Lords, this has been an interesting and entertaining debate on a five-clause Bill that I am not convinced is very necessary. I agree with what the noble Lord, Lord Hurd, said, though I am sorry if he feels disappointed by how the Opposition are responding to the debate.
We have heard from other noble Lords, in particular from my noble friend Lord Beecham and the noble and learned Lord, Lord Lloyd of Berwick, that this Bill is unnecessary. The Government have suggested that the impetus behind this Bill is to increase volunteering and other forms of social action to provide reassurance to people, including employers, that the courts will take certain factors into account when considering claims for negligence and certain breaches of statutory duty. If the Government feel that there is a problem with people volunteering, it is probably more to do with their attitude to the sector and the policies that they are implementing.
I agree with the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, that, if there is a problem with getting people to volunteer and they are under a misapprehension about their legal position, what is needed is some sort of media campaign. I do not see the fear-driven culture to which the noble Baroness, Lady Hodgson, referred, nor the compensation culture to which the noble Earl, Lord Attlee, referred.
I enjoy the area of south London and the vibrant community in which I live. I do voluntary work with no fear of being sued or taken to court for trying to be a good citizen. Where I live in Lewisham, I also serve as a local councillor. I have never heard anyone say to me in the voluntary projects that I visit and work with—either in the ward I represent, or elsewhere in the borough—that they cannot get more people to help because they are worried that they might be sued. No one has ever told me that they would like to be involved, but that the risk of a negligence claim against them is too much for them to bear.
I invite the noble Lord, Lord Faulks, to visit the Ackroyd Community Centre in Honor Oak Park, where I am a trustee, so that he can see for himself the wonderful work that the people there undertake. He can ask them how they think we can increase volunteering. I am certain that not one word of this Bill will be raised as a barrier to volunteering, and no one will suggest that the Government need to legislate on it.
I have the greatest respect for the noble Baroness, Lady Browning, but I do not agree with her that the Bill is necessary; all the important points she made are already adequately covered. Again, I agree with the noble and learned Lord, Lord Lloyd of Berwick, on this.
While we are on the subject of volunteering, what happened to the big society? No one from the Government ever mentions it—it has disappeared. Only the Opposition ever mention it to ask, “Where has it gone?”—but four years ago it was all the Government ever talked about.
I have concerns that the legislation could worsen the position of workers. Hugh Robertson, head of health and safety at the TUC, described the Bill as “gobbledegook” and said:
“There is not a shred of evidence that there is a problem”.
The Association of Personal Injury Lawyers, to which the noble Lord, Lord Faulks, referred, has also raised concerns, and Thompson Solicitors said that it is,
“nonsense before it even starts”.
We generally have a good health and safety record in this country, which we should be very proud of. I visited the Olympic park just before it opened, where both the noble Lord, Lord Coe, and Sir John Armitt proudly told us that the most serious accident over the whole construction period was one broken leg, because health and safety was such an important part of life on the construction site.
It is important for the noble Lord, Lord Faulks, and the Government in general to make it clear that no employer should be under any doubt that the Bill on becoming law will not in any way loosen health and safety provisions or place less importance on risk assessments—I hope that the noble Lord will have the opportunity to do that when he responds to this debate. Although an employer may have a good health and safety record—and it is quite right that their good record should be taken into account—if they are negligent, they should be found liable, whether or not it is their first breach.
The noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Beecham, referred to both the Fire Brigades Union and the St John Ambulance brigade, which made compelling comments on the issue of heroism and raised concerns about the present wording of Clause 4. They are worried that it could encourage people to engage in reckless behaviour. It is important that we are not seen to be encouraging people to act recklessly and risk becoming a casualty themselves. I hope that the noble Lord, Lord Faulks, will say something about that when he responds to the debate.
I pay tribute to anybody who through their work as a police officer or firefighter, or any other occupation—or as a member of the public—has acted heroically and saved others. We have seen that spirit many times in our country; nowhere was it more in evidence than on 7/7 in London. Some of the heroes on that day needed help after the event, in addition to medical care and in some cases counselling, but maybe they also needed a bit more protection from the media intrusion they suffered after those terrible events.
In addition, how would the Bill affect Armed Forces personnel and the difficulties they could face in obtaining compensation for injuries sustained while serving their country? Can the noble Lord reflect on that in particular in detail, and explain how the Armed Forces covenant would work there? I am worried that that could be an issue, so perhaps he could come back to me on that between now and Committee.
I have looked carefully at Part 1 of the Compensation Act. As the noble and learned Lord, Lord Lloyd of Berwick, points out in his amendment and his contribution today, the matters in the Bill are adequately covered there. The noble Lord, Lord Faulks, is a very skilled advocate, a Queen’s Counsel and an officer of the court, while I am just a lay person. It would be helpful if he could explain to me why the Bill is necessary. Would he not expect the advocate for a defendant in a negligence claim to put these matters before the court? Would he not expect the advocate for the defendant to make use of Part 1 of the Compensation Act, and would he not expect the court in considering a negligence claim to consider such matters and give them due weight in coming to its decision?
If the noble Lord, Lord Faulks, says to me, “Yes; I would expect the defendant’s advocate to put these matters forward and I would expect the court to consider them”, again I ask, why is the Bill necessary? I certainly found nothing in the risk assessment to convince me that it was necessary. As the noble Lord, Lord Pannick, said, the document is nearly as thin as the Bill itself, and phrases such as,
“slightly less likely to pursue a case … slightly reduced aggregate compensation paid … slight drop in the number of negligence cases”,
do not make compelling or convincing reasons as to why the Bill is wasting valuable Parliamentary time.
Having said that, the Opposition will not be supporting the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, if he presses it to a vote, for the reasons outlined by my noble friend Lord Beecham. We agree with him that the Bill is unnecessary, but do not believe that it is right to deny it a Second Reading. However, it is a depressing waste of valuable parliamentary time. When you look at the Order Paper and see the list of uncontroversial Private Members’ Bills—such as the Mutuals’ Redeemable and Deferred Shares Bill put forward by the noble Lord, Lord Naseby, from the Minister’s own Benches, which has much more merit and is struggling to get a hearing—it is a matter of much regret that we are here today. My noble friend ended his contribution by saying, “Let the grilling commence”. It has started, and the noble Lord has much work to do.
Lord Faulks
My Lords, this has been a very interesting, entertaining and helpful debate, in which a number of useful points have been raised. As I explained in my opening speech, our core aim in introducing the Bill is to provide reassurance to people who act in a socially beneficial way, behave in a generally responsible manner, or act selflessly to protect someone in danger that the courts will always take the context of their actions into account in the event that something goes wrong and they are sued.
The amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, seeks to prevent the Bill from receiving a Second Reading on the basis of two premises: first, that the subject matter of the Bill is already covered by Section 1 of the Compensation Act 2006; and, secondly, that the sole purpose of the Bill is not to make new law but to send a message to the courts, and that that is not a proper use of legislation. The Government do not accept that either premise is correct. As I explained, Clause 3 does change the law—albeit not in a major way—by requiring the courts to have regard to whether a person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.
In making that change, we want to ensure that the courts take a slightly broader view of the defendant’s conduct than at present by looking at whether a defendant’s approach to safety during an activity was generally a responsible one, taking into account all that he did or did not do. The court will be obliged to weigh that in the balance when considering the ultimate question of whether the defendant met the required standard of care. While that does not rewrite the law in detail, it is a substantive change. If it were to tip the balance in favour of the defendant in a particular case, then that is a result with which the Government would be happy.
Clauses 2, 3 and 4 also require the court to take particular factors into account. While, as I have said, Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act, the approach that it takes is different. It requires the court to have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. The fact that the fear of litigation remains so widespread almost a decade after Section 1 was introduced only goes to suggest that it has been ineffective and that firmer action, such as this, needs to be taken.
The noble and learned Lord, Lord Lloyd, said that I had paid scant regard to the Compensation Act in my opening remarks. Let me attempt to make good that omission. In her introduction to the Compensation Bill, the noble Baroness, Lady Ashton, said:
“The Bill will provide better safeguards for consumers of claims management services and will reassure those concerned about possible litigation that the law of negligence takes the social value of activities into account and that they will not be found liable if they adopt reasonable standards and procedures”.
After dealing with the regulation of claims management services, she went on to say:
“The Bill's provision on negligence reflects recent judgments of the higher courts. It makes clear that when considering a claim in negligence, in deciding what is required to meet the standard of care in particular circumstances, a court is able to consider the wider social value of … the context of which the injury or damage occurred. It provides that the court can have regard to whether requiring particular steps to be taken to meet the standard of care might prevent a desirable activity from being undertaken or might discourage people involved in providing the activity from doing so.
The Bill forms part of a wider programme of work which is being taken forward across government and, in partnership with stakeholders, to tackle perceptions that can lead to a disproportionate fear of litigation and risk averse behaviour, to find ways to discourage and resist bad claims and to improve the system for those with a valid claim for compensation”.—[Official Report, 3/11/05; cols. WS 29-30.]
At Second Reading, the noble Baroness said:
“This Bill is part of a much wider set of initiatives that is being taken forward across government. The Government are determined to tackle practices that stop normal activities taking place because people fear litigation, or have become risk-averse. We want to stop people from being encouraged to bring frivolous or speculative claims for compensation. The provisions in this Bill will help us do that. They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.
Later, she said, referring to Clause 1, that:
“This provision reflects guidance given by the higher courts during a considerable period and renewed in recent cases. It will ensure that not only all courts but also litigants and potential litigants are fully aware of this, and will provide reassurance to the many people and organisations, such as those in the voluntary sector, who are concerned about possible litigation”.—[Official Report, 28/11/05; cols. 81-82.]
The noble Lord, Lord Beecham, seemed to imply that the notion of a compensation culture was entirely in the imagination of this Government, but it appears to have featured quite heavily in the imagination of the previous Government.
Lord Lloyd of Berwick
When I said that the noble Lord had paid scant regard to Section 1, I thought that I would be understood as saying that he did not attempt to say why Section 1 does not cover everything in this Bill. Indeed, what he has just read out makes it clear that it does cover everything in this Bill.
Lord Faulks
Indeed, but the noble and learned Lord is saying in his amendment that this Bill should not get a Second Reading because the matter is covered by Section 1 of the Compensation Act. I am identifying what lay behind the legislation when it was brought in, what it attempted to do and why, if the noble and learned Lord will bear with me, it failed to do so.
Lord Beecham
The noble Lord read out the words of the noble Baroness, Lady Ashton, in the previous Labour Government. I referred to Greek legend, and I concede entirely that the noble Baroness, Lady Ashton, and the previous Labour Government nodded, as did Homer. I would not defend the section of that Act but the noble Lord has to point to any distinction between the effect of that Act and the present Bill.
Lord Faulks
I am entirely aware of the question that the noble Lord asked and I am attempting to answer it.
Perhaps I may go on to refer to what happened following the passing of that Bill. Was there a fundamental change in the compensation culture? What happened? After the coalition Government came to power, my noble friend Lord Young of Graffham produced his report Common Sense, Common Safety, which was widely applauded by all sides of your Lordships’ House. He observed in his report that there was a growing fear among business owners of having to pay out for even the most unreasonable claims. The fear of business owners and small business owners, referred to by my noble friend Lord Cotter, is a reasonable matter to take into account. My noble friend Lord Young also identified a public misconception that,
“we can be liable for the consequences of any voluntary acts on our part”.
He described this belief as “particularly pernicious” because it might,
“deter people from engaging in organised voluntary activities in the mistaken belief that they can be sued should anything go wrong”.
He recommended that people who seek to do good in our society should not fear litigation as a result of their actions. He said:
“It is important to have clarity around this issue and at some point in the future we should legislate to achieve this if we cannot ensure by other means that people are aware of their legal position when undertaking such acts”.
My noble friend Lord Hodgson, whose report Unshackling Good Neighbours has been referred to, led a task force established by Nick Hurd, the son of my noble friend Lord Hurd, who has spoken on this issue. He may have observed that unfortunately his son did not share his lack of enthusiasm for the Bill when speaking in a brief intervention in the House of Commons. Fortunately, the family of Hodgson was more together than the family of Hurd. My noble friend Lord Hodgson said that the fear of becoming involved in litigation was a major preoccupation that deterred people from volunteering. The task force acknowledged the work of various government departments in producing guidance on health and safety, but argued that it was unlikely to provide volunteers with the general reassurance that they seek. The task force took the view that the Government’s efforts seemed,
“‘to fall short’ of Lord Young’s recommendation to clarify through legislation if necessary that people would not be held liable for any consequences due to well-intentioned voluntary acts on their part”.
The response of Dr Davis Smith in his evidence to the Public Bill Committee was also important. His perspective as the executive director of the National Council for Voluntary Organisations was interesting. He said:
“Parliament has a hugely important role in sending out messages about what is valued in society, and I think that sending out the message that volunteering and community and social action has a hugely beneficial role to play in society—recognising that there are barriers and difficulties that must be addressed—is a really important function that Parliament can play. Even the process of having discussions such as this and getting the debates out as part of the passage of legislation is helpful in raising awareness in society more broadly”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 4/9/14; col. 14.]
The noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Beecham, challenge me to say that this Bill effectively adds nothing to the Compensation Act. I respectfully suggest that since the Act we have had an explosion of claims. These have resulted in what I submit to the House is an extremely sensible part of the LASPO Act, which implemented the Jackson reforms and went a considerable way to stopping the explosion of claims by modifying the amount of cost that could be recovered.
We have improved the control of claims management. The question of claims management was touched on in the Compensation Act. It went nothing like far enough. We have reduced the number of claims management companies. We have introduced a successful unit to monitor carefully what claims management companies do. They have halved in number. We now have heavy fines if they transgress in any way. We have introduced in the Criminal Justice Bill, still before your Lordships’ House, provisions that will deter fraudulent claims.
Anyone who watches television or reads newspapers will, I suspect, share with me the feeling of depression and disgust at the vulgar advertising for claims brought, which are often meritless. People resent being telephoned and asked to take part in a fraud, and being told that they have been involved in an accident of which they have no recollection. For those who say that the compensation culture is a mere figment of the Government’s imagination, I say that they are not paying attention to what normal people say.
Lord Beecham
Is the noble Lord able to identify what proportion of these claims relates to the provisions of this Bill? What proportion of them relates to claims for compensation for injuries suffered as the result of voluntary activity or heroic action?
Lord Faulks
I will not give details of particular claims. In opening this Second Reading debate I said that this Bill is intended to reassure those who might be reluctant to volunteer. It intends to set out matters that the court is required to take into account when deciding on cases that potentially generate those factors with which the Bill is concerned.
Can we really conclude that the Compensation Act answered the questions posed by the noble Baroness, Lady Ashton? I say “posed”, though the noble Lord, Lord Beecham, disavows her concern. The answer, I fear, is no. What difference is there between the terms of the Compensation Act and the terms of this Bill? One said “may” and the other said “must”. Noble Lords may remember that the difference between “may” and “must” last week caused the House to be divided on more than one occasion, so crucial was it in the interpretation of the particular Bill. Furthermore, the Opposition in the House of Commons thought that it was a sufficiently important difference to table an amendment, removing “must” and inserting “may”. There is a difference, I respectfully submit, between the provisions in this Bill and the provisions in the Compensation Act.
What is not entirely clear—and I accept this on behalf of the Government—is that all Members of your Lordships’ House know the target at which the Bill is aiming. I readily accept, as was apparent from the previous Government, that it is a very difficult target to hit. We do not suggest that judges are routinely getting matters wrong, or that they ignore these factors. However, they will now have to take those into account, and in many cases that will be an unnecessary enjoinder. Clearly, on the face of the statute will be that obligation. This Bill will contribute to an increasing reassurance which I hope the public has and that volunteers have in approaching life, which inevitably has many risks.
This debate has divided roughly—only roughly—between lawyers who are hostile to the Bill and non-lawyers who seem rather more, with exceptions, in favour of it. We, as lawyers, should reflect a little on the occasional disconnect that exists not only between politicians and the public but sometimes between lawyers and the public. Should Parliament be legislating in this fashion at all if it is simply sending a message? I entirely accept what my noble friend Lord Hurd said about the fact that one should be very cautious indeed before legislating simply to send a message. But, on the other hand, I suggest that it would be idle to pretend that part of what we do is not conveying an important message.
One has to think only of the amendment that the Government brought forward, with considerable help from my noble friends on the Liberal Democrat Benches and with support from the Opposition, on the question of revenge porn. It sent a clear message that this House of Lords thoroughly disapproved of that activity. The reality was that the offence was probably captured by other specific criminal offences within the canon of criminal law. So strong was the general feeling that we should identify specifically this behaviour that we sent a message by legislation and made law. What is the Modern Slavery Bill about? Of course, it has important provisions in relation to modern slavery, but is accompanied by all the publicity about what to look for in slavery. Legislation is not always the dry dust of particular words. The context in which we legislate is extremely important.
I was asked many questions during the debate, and I will answer all of them in writing in due course. I hope that noble Lords will forgive me if I do not answer them all now. I can reassure a number of those who asked about the emergency services, for example. I hasten to add that we are very keen to encourage first aid, but nothing about this will alter the sensible practice that should be adopted by the emergency services. The law in that respect has been well visited by a number of courts of appeal and the Supreme Court. This will not change that.
The noble Lord, Lord Pannick, in an amusing speech, referred to that well known student of jurisprudence Sybil Fawlty, and expressed the view that the case of Tomlinson, which was the backdrop to the Compensation Act, was a statement of the obvious. Why then, I ask rhetorically, was it necessary for the case to go all the way to the House of Lords, which deals only with difficult matters of law on which there is uncertainty? If the case was so straightforward it should either have been settled immediately or been disposed of without an appeal to the Court of Appeal or the House of Lords. Unfortunately it can be the case that courts take a little time, when faced with appalling accidents which result in serious injury, to come to the—sometimes reluctant—conclusion that they must deny compensation in the face of an apparently deserving claimant.
Much has been said about the need to sometimes take risks. Few were more robust advocates of that approach than my noble friend Lord Attlee. Much of what he said was true: we want people to take sensible risks but we are not encouraging them to do anything or forcing them to volunteer or take part in activities if they do not want to. However, it is a sad fact that people are deterred: they are aware of the risk of compensation and I am sure that most Members of your Lordships’ House agree that this can act as a negative factor in both their ability and their willingness to volunteer. Indeed, it can reduce the enjoyment of life. The Bill’s core purpose is to reassure a wide range of people who should not be deterred from engaging in these activities. I do not accept that it is improper for legislation to have such a purpose. I suggest that it is a proper use of legislation and will provide valuable support for voluntary organisations and small businesses. They can make a contribution to society without being constrained or, at least, being far less constrained by worries about being sued.
Noble and learned Lords will, undoubtedly, examine the provisions of the Bill closely in Committee—if there is one—and on Report. I do not suggest, for a moment, that the noble and learned Lord, Lord Lloyd, is not entitled to take the course he apparently wants, of testing the opinion of the House at Second Reading. The Bill passed through the House of Commons; it received some support—albeit it has been criticised—in your Lordships’ House; it could certainly benefit from examination by those who are experienced in these matters when it proceeds further. However, I hope that he is persuaded that the Bill deserves our consideration. If it is sending a message, it is one that should be heard. It is making a small but important change in the law where there is a need for change. In all those circumstances, I ask him to consider carefully whether it would not be better to withdraw his amendment.
Lord Lloyd of Berwick
My Lords, I tried hard to persuade the Labour Opposition to support this amendment. They attacked all three clauses in the other place. I assumed that they were against the Bill in principle so I thought they would support this amendment: it would have been the logical thing to do. However, I am afraid that the ways of political parties are beyond my understanding. Try as I might, I simply could not persuade them. I was told they would definitely be opposing the amendment. If that is their intention now, it would certainly not be my intention to divide the House. However, as I understand it—and I may be wrong—they have decided at the last moment to abstain. Are they opposing or abstaining?
Lord Beecham
Perhaps I might assist the noble and learned Lord. It has been our formal position, in the discussions we have had over the last few days, that we would not support the amendment but we would not vote against it. We will abstain.
Lord Lloyd of Berwick
That makes it much more difficult. It puts me in a quandary. I believe there are very many Members on the Labour Benches who want to support this amendment, if they are allowed to do so. I believe there are Members on all sides who want to support this amendment. The noble Lord, Lord Hurd, wants to support this amendment. So what am I to do?
I will say that I wholly disagree with what the noble Lord, Lord Pannick, said in one aspect of his speech, which was that to oppose the Bill on Second Reading would create a fundamental conflict between this House and the other place. Did the Labour Party’s reasoned amendment in the Health and Social Care Bill create a fundamental disagreement between the two Houses? Did the Conservatives’ reasoned amendment in the fraud Bill create a fundamental conflict between the two Houses? Clearly not. Although the noble Lord, Lord Pannick, was right in every other respect in regarding the Bill as a wretched Bill which should have no support in this House, I cannot agree with the reason he gave that we should not agree the amendment now.
I come back to where I was. I do not want to disappoint Members who are here to vote for this amendment. I feel on the whole that the points that have been made, very forcefully, against the substance of the Bill have probably been enough for my purpose. My guess is that at the end of Committee, on which we will waste more valuable time, we will find that there is nothing we can do with the Bill—which is what I think they suspected in the other place. That is because essentially this is an unamendable Bill. I do not think that there is quite enough support for actually rejecting the Bill at this stage to justify wasting the time of the House in dividing on the amendment. I respectfully beg leave to withdraw the amendment.