Social Action, Responsibility and Heroism Bill

Lord Lloyd of Berwick Excerpts

Tuesday 4th November 2014 Lords Chamber

Moved by

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Amendment withdrawn.