Lord Hardie
Main Page: Lord Hardie (Crossbench - Life peer)
Lord Hardie
My Lords, I have added my name to Amendments 80A and 81. I was unable to speak at the proceedings in Grand Committee because I had not by then resumed my place in this House following my retirement from the Bench.
If this clause remains part of the Bill, there is a serious risk of injustice for some people who will be deprived a remedy: the right of damages arising from a breach of their employer’s obligations towards them. The Minister himself recognised that in Grand Committee on 14 January, col. GC 176. However, the Minister suggested that there would only be a small number of cases. First, therefore, can the Minister tell the House what was meant by a small number of cases? Was the estimate of numbers based upon an analysis of cases which proceeded to proof, or did it include cases that were settled without litigation altogether? Whatever the number, it is impossible to understate the serious consequences for individuals and their families already alluded to by the noble Lord, Lord McKenzie of Luton.
If this clause remains part of the Bill, those who have suffered catastrophic injury, or the widows and families of employees who have been killed, will now have to depend upon state benefits for their maintenance. That was what the Minister said in the passage to which I referred. The financial burden will be transferred to widows, children, disabled people, and to the state, and it will be transferred to all of these people from insurance companies which will be the principal beneficiaries of this clause. Does the Minister consider that this is fair, or is it even compatible with Government policy to reduce the number of people who are dependent on state benefits?
Other noble Lords have referred to this right of action, which has existed since the 19th century. I do not wish to point out the error of the noble Lord, Lord McKenzie of Luton, by saying that it dates back to the case of Groves v Lord Wimborne in 1898. That case in the Court of Appeal certainly did decide that there was such a right. However, the law goes much further back. In Scotland and England there were cases before that dealing not with factories, which Groves v Lord Wimborne did, but with coal mines. There was a case in Scotland in 1871 of Edgar v Law and Brand at the Inner House of the Court of Session—which is the equivalent of the Court of Appeal—which decided that the widow of a collier who had been killed because the mine owner breached the regulations had a right of action, just as the court in England decided 20 or so years later. In 1912, the Judicial Committee of this House ratified these decisions—in terms to Groves v Lord Wimborne—but emphasised that they were correctly decided. In doing so, Lord Kinnear observed that when a duty of protection is imposed on employers for the benefit of particular persons, there arises, at common law, a correlative right of action in those persons who may be injured by the contravention.
Clause 62 removes that common law right. We should not sanction such a radical change in our law unless there has been detailed consultation about the consequences of the change and there are overwhelming reasons justifying it. As the noble Lord, Lord Phillips, said, there was no consultation about this change and I will return to the reasons in a few minutes.
In the context of claims for damages arising from breach of statutory provisions, some people refer to strict liability and there is a risk of misunderstanding the scope of civil liability. Where regulations impose an unqualified obligation on employers, there is clearly an automatic criminal liability, so there could be a prosecution. However, that is not the case in civil actions. Mere breach of the regulation does not give rise to a right of action: one has to establish that the breach caused the damage. There is, therefore, a double issue: the question of the breach and also the fundamental question of causation. Unless one can bring home liability based on causation there is no right of action.
I will illustrate that point by reference to the Ionising Radiation Regulations 1999. Regulation 8 contains special provisions for pregnant women who have notified their employer of their pregnancy. In such cases, the employer must ensure that the equivalent dose of radiation to the foetus is unlikely to exceed one milliSievert for the remainder of the pregnancy. If a foetus were exposed to more than one milliSievert after the date of notification, the employer could certainly be prosecuted but there would be no civil liability unless the employee established a number of facts. First, she would have to prove that she is part of the class that is protected and that she notified the employer. Secondly, she would have to prove that after the notification she was exposed to more than one milliSievert. Thirdly, she would have to prove that the baby was injured. Fourthly, she would need to prove that the injury was caused by the overexposure. The question of causation is likely to be the most difficult challenge, as it is in most cases. The injury to the child might not manifest itself for some considerable time.
Having regard to the significant margin of safety which undoubtedly will exist in the regulations, there would be possible other causes for the child having the condition that it has. However, if the evidence is such that the court is convinced that it was overexposure as opposed to anything else which caused the damage to the child, the mother would be able to recover damages for the child. If this clause is enacted, that right of action by the mother will be removed.
It seems to me that the correct balance has been struck where there are certain standards that the employee has to achieve before he or she can have a right of action. The right balance has been struck and has been reflected in about 150 years of our common law. In considering the question of balancing the rights, passing reference has been made to a further issue: namely, the additional factor that many if not most of these regulations are not absolute but qualified by the phrase,
“so far as is reasonably practicable”.
Those regulations give the employer an additional defence that he can come in and show that what happened occurred in circumstances in which he had done everything that was reasonably practicable and that, therefore, he is not liable under the regulations.
The current system of civil liability balances the interests of the employer and the employee, and the correct balance has been struck. Clause 62 disturbs that balance. It deprives people of existing rights under current regulations. It is not possible to comprehend the nature and extent to which the current regulations protect the employee. The employee will no longer be entitled to a right of action. That could be identified only if the current regulations were examined and if the Government decided to exclude rights of action, which they can under Section 47(2) in certain cases. Of course, if the present clause remains, the Government would have to look at the regulations, if they are going to be fair and just about this, and decide which of them should include a right of action. As I understand it, that is not to be done.
I do not intend to repeat the overwhelming reasons that have been mentioned by noble Lords. However, in the context of justification, I will mention the briefing by the British Chambers of Commerce that the right of action deters entrepreneurialism and growth. That explanation or reason does not bear scrutiny. If that were truly the case, how can we explain the involvement of entrepreneurs over the past 150 years who have made a significant contribution to economic growth?
Another matter that has not been mentioned hitherto is a comment made by the noble Viscount, Lord Younger of Leckie, in Committee. He said:
“This measure is not about reducing the number of claims. It is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions”.—[Official Report, 14/1/13; col. GC 176.]
That can relate only to regulations where there is an unqualified duty. As I said earlier, most of the regulations contain such a qualification and afford the employer the opportunity to defend himself on the basis that he took all reasonable precautions. So this reason can be no justification for excluding a right of action in all those regulations where there is such a qualification. If this clause remains in the Bill, will the Minister give an undertaking to introduce at Third Reading an amendment to include a right of action in respect of all regulations where employers are given the opportunity to defend themselves, as desired by him? There is no sound basis for removing from citizens rights that they currently enjoy or for altering the proper balance to which I have referred.
Lord Hardie
Before the noble Viscount sits down, may I clarify what is being offered? I hope that I have not misunderstood him, but he seemed to suggest that noble Lords would go through all the regulations and identify which ones should include a right of action, then come to the Government and persuade them? Is that what is envisaged, or will the Government undertake the review of existing regulations to decide which should include the right of action?
Viscount Younger of Leckie
All I am saying at this stage is that we are open to ideas so we can hear where further exclusions, above and beyond pregnant workers, might appear.