Social Action, Responsibility and Heroism Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th November 2014 Lords Chamber

[Lord Beecham]

My Lords, I shall speak to Amendment 2, moved by the noble Lord, Lord Pannick, and to my Amendments 3, 5 and 9, which deal with the issue of judicial discretion in applying to any claim within the province of the Bill the provisions that the Bill sets out.

At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, averred that the change the Bill seeks to make in the provision of the Compensation Act 2006 that the court “may” take into account the factors that the Act spells out, to one which declares it now “must” take such matters into account will, in his words,

“actually make no difference whatever”.—[Official Report, 4/11/14; col. 1559.]

Perhaps that is a suitable epitaph for the whole of the Bill, it might be thought.

The noble Lord, Lord Pannick, from whose company I must unusually and regretfully depart on this occasion, seeks to replace the Compensation Act’s provision of “may” with this Bill’s “must”, presumably therefore reflecting the view of the noble and learned Lord, Lord Brown. The view that the two are the same, however, is not the Government’s view, as the Minister made clear at Second Reading, when he reminded the House that,

“the difference between ‘may’ and ‘must’ … caused the House to be divided on more than one occasion”.—[Official Report, 4/11/14; col. 1576.]

He also reminded us that there is a difference between the provisions in this Bill and the provisions in the Compensation Act.

To the extent that the obliteration of that difference could represent yet another and in this case, given its source, inadvertent legislative attempt to fetter judicial discretion—one of many such attempts made by this Government, some, alas, successfully—the Committee should resist that proposition. The JCHR in one of its more damning and dismissive, albeit characteristically elegantly phrased, reports published in recent years echoed its concerns about similar provisions in relation to judicial review in the Criminal Justice and Courts Bill. We have seen a succession of measures designed to fetter judicial discretion. I fear that, for all the intentions to the contrary, the noble Lord’s amendment might encourage that process. I therefore hope that, on this occasion, he will not object to my taking a different path, but it will be interesting to hear whether the Minister has changed his view since that expressed at Second Reading.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I shall deal briefly with the suggested distinction between “may” in the 2006 Act and “must” in the present Bill which, as the noble Lord, Lord Beecham, has said, I touched on at Second Reading. The Minister submitted then that this was a significant distinction and he compared it to the critical difference between those same two words, “may” and “must”, on which the Government the previous week had been defeated three times when the House divided on three clauses in Part 4 of the Criminal Justice and Courts Bill, all about judicial review. With respect to the Minister, for whom I have the highest regard, this was an uncharacteristically and thoroughly bad point and an inept comparison, because of course there was all the difference in the world between saying in the original Clause 70 of the Criminal Justice and Courts Bill that the High Court “must” refuse in certain specified circumstances to grant judicial review relief and saying, as on amendment to that Bill Clause 70 now does, that the court “may” refuse to grant relief. It is a completely different position in a Bill like the one now before us where the provision is simply about the court having regard to a particular consideration.

It is notable that when the noble Baroness, Lady Ashton, who promoted the 2006 Bill in Committee, resisted what was then a proposed amendment from “may” to “shall”—which is much the same as “must”—she said:

“The reason why we said “may” rather than “shall” is that when a court looks at a negligence claim it takes into account all the circumstances of an individual case; those circumstances, of course, vary dramatically from one case to another, as all those who are members of the legal profession will know far better than I. It would not be appropriate to require the courts to take the factor in Clause 1 into account in all cases, which would be the effect of changing “may” to “shall”. In some cases, it will just not be relevant, so by making that change we would be trying to make the courts do something that in the normal course of their activities we would not expect them to do—which is, to take into account factors that have no relevance at all. So we have said that they may take them into account, but we are not requiring them to, because of the range and variety of cases”.—[Official Report, 15/12/05; col. GC200.]

A little later she contrasted a negligence claim against an accountant, where the concept of a “desirable activity” would of course be irrelevant, with an injury suffered at Girl Guides or on a school trip, where a “desirable activity” becomes a highly relevant concept. Frankly, it would have mattered little, even in the cases where it was quite irrelevant, if the courts had in fact been bound to have regard to this irrelevant consideration before then summarily discarding it. So too here: it can make no material difference to the outcome of any case whether the word used is “may” or “must”. That is the central point, as I made plain at Second Reading. There is no real difference between this Bill, the 2006 Act, and indeed the common law as it was already developing without the need for any statutory intervention at all. Accordingly, for my part I am quite indifferent to both of these competing Amendments 2 and 3. Rather, in common with the noble and learned Lord, Lord Lloyd, I object to the Bill as a whole. If the House eventually divides on Report, I shall vote that none of these provisions should stand part.