Social Action, Responsibility and Heroism Bill

Debate between Lord Lloyd of Berwick and Lord Hodgson of Astley Abbotts

Monday 15th December 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, there are many reasons why Clause 2 should not stand part of the Bill, but to my mind the main objection is also the simplest: it serves no useful purpose. The mischief at which the clause is aimed is already covered by existing law. The mischief in question, as defined by the Lord Chancellor in the other place, is that volunteers are being deterred from volunteering by fear of being sued for negligence. That is the very same point specifically covered by Section 1 of the Compensation Act 2006, passed less than eight years ago.

The whole purpose of that section was to encourage people to undertake what the section calls, “desirable activities”. The whole purpose of Clause 2 of the Bill is to encourage people to act,

“for the benefit of society”.

Those are two ways of saying exactly the same thing. Nobody has yet been able to detect any difference between them. Indeed, the Lord Chancellor said that Clause 2 is not intended to change the existing law, so why do we need another piece of legislation covering exactly the same ground now?

The noble Lord, Lord Faulks, accepted that:

“Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act”,

but he added that,

“the approach that it takes is different”.—[Official Report, 4/11/2014; col. 1573.]

He did not explain exactly what he meant by the approach being different. When pressed, he said that the 2006 Act had been “ineffective”. However, the only evidence relied on for that assertion—literally the only evidence—was a survey carried out about eight years ago. All it showed was that 47% of a very modest sample, some 300 people at most, said that there was a risk of being sued and that that risk was an issue to be considered. That survey was carried out in 2006-07, before Section 1 of the Compensation Act could possibly have had any effect, so how can it be relied on as showing that Section 1 of the 2006 Act has been ineffective? At the time of that survey, it had not had time to take effect.

A recent report produced by the Joint Committee on Human Rights considered the evidence in support of the Government’s case for fresh legislation in this field. It concluded that the only evidence was almost entirely anecdotal. It said that such evidence was not a sound basis for legislation, and that must surely be right. We now have before us a clause for which there is no evidence of any need covering exactly the same ground as Section 1 of the Compensation Act, which was passed less than eight years ago, and covering the ground already covered by the common law. In negligence cases, judges have always had regard to the matters referred to in Clause 2.

If that was not enough to condemn the clause—although I suggest that it is—the National Council for Voluntary Organisations has recently said that this clause, even if it is to form part of the Bill, will have very little, if any, effect. Indeed, that was the Government’s own case. Paragraph 23 of their impact assessment states that any reduction in claims for negligence will not be substantial.

If, as I suggest, these reasons are nothing like enough to justify the inclusion of this clause, one is driven to ask: what is the real reason the Lord Chancellor is bringing forward this unnecessary clause for our approval? There can be no doubt about the answer to that question, because the Lord Chancellor himself said it over and over again in the other place. The real reason is that the Lord Chancellor wants to send out, as he put it, a strong signal that if people are trying to do the right thing—he used that sort of phraseology over and over again—the law will be on their side. In other words, the justification for including this clause in the Bill is nothing other than a publicity exercise on the part of the Government. If that is the case, and I suggest that it is, it is a flagrant misuse of the legislative process. The purpose of legislation is to make new law or to change existing law so that it can be enforced in the courts. This clause does not purport to do either of those things. It could not be enforced by the court, which is why it will be treated with derision when it comes before the courts—a word that was used by a recent Solicitor-General, Sir Edward Garnier, speaking from the government Benches in the other place. The clause should be rejected on that ground, if none other.

Finally, I should mention points made during the debate in Committee. The noble Lord, Lord Hodgson of Astley Abbotts, who I am glad to see in his place, is in favour of Clause 2. He was chair of the task force which published in 2011 the report Unshackling Good Neighbours. His view is obviously, therefore, entitled to great weight on that ground. I hope, however, that he will forgive me for saying that he did not really answer the point that Clause 2 covers exactly the same ground as Section 1 of the Compensation Act 2006, which should be given much more time to take effect.

On the other hand, the noble Lord, Lord Blair, said that, while he was broadly in sympathy with the Government’s objective, this was, as he put it,

“frankly, a lousy way to do it”.—[Official Report, 18/11/14; col. 404.]

It was smoothing over all the difficulties with words that have very little meaning. The noble and learned Lord, Lord Hope, went further. He was extremely critical of the drafting because of the use of the same word, “person”, in Clauses 2 and 4 to cover two entirely different persons. He said it was a great pity that the Government had not faced up to the real problems in this area. As a result, he said, he was deeply troubled by the clause as it stands.

For all these reasons, I hope the Government will think again before pressing ahead with this unnecessary clause. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the noble and learned Lord was kind enough to say some nice things about my report, and I reciprocate by saying that I have had the pleasure of serving under his chairmanship of various committees, and he has always been a punctilious and perceptive chairman. He is particularly kind in being ready to listen to and appreciate the views of those of us who are not learned in the law.

I hope that he will forgive me, but, once again, I cannot support his proposal this afternoon, and I urge my noble friend on the Front Bench not to do so either. We had a pretty thorough discussion of this issue in Committee on 18 November, and I do not intend to repeat the remarks I made then. As I understand it, and as I understood then, the noble and learned Lord is concerned about interplay between this piece of legislation and the Compensation Act 2006. I understand his desire for legal clarity and legal purity, but I have another objective, and that is of legal connectivity.

The report that I produced for the Government, Unshackling Good Neighbours, to which he kindly referred, looked in some depth at what was inhibiting people from getting involved in society and acting as a trustee, and whether they feared potential legal consequences. We received examples in sufficient numbers, which cannot simply be dismissed as anecdotal—a term that I sometimes feel is somewhat patronising. The noble and learned Lord sought to reassure the House that, if a case came to court, the court would throw it out, would, in his phrase, “have regard for the circumstances”. With respect, he may have overlooked the effect on an individual of the agonising, expensive, lengthy and psychologically depressing process of preparing the case—this against the background that, in the event, the court may not throw the case out.

I continue, therefore, to believe that this legislation sends an important signal—there I agree with the noble and learned Lord. This signal may seem unnecessary in the cool, calm, reflective atmosphere of the Inns of Court, but it has a greater resonance at the coalface of our civil society.

At another level, I am particularly looking forward to hearing the final determination of the Opposition’s position on this issue. The noble Lord, Lord Beecham, is a witty speaker and a very practised politician. He has made some disobliging remarks about the contents of the Bill, but he has so far not moved beyond that point. I suspect that, as a practical politician, in his heart of hearts, he knows that this is an issue that, in the minds of the public, needs addressing, and which this Bill does so address.

Before I conclude, I reiterate one other point that I made in Committee. I do not argue for a single minute that the Bill is a silver bullet as regards encouraging volunteering or greater participation in our society. There is much else to be done besides. Better insurance arrangements are crucial, as is the need to debunk myths about the legal consequences of day-to-day actions, too often assiduously and repeatedly promulgated in the press. However, even if the Bill is not a silver bullet, it is a bullet, and one well worth firing. I hope that my noble friend on the Front Bench will resist the noble and learned Lord this afternoon.