Social Action, Responsibility and Heroism Bill

Lord Faulks Excerpts

Tuesday 6th January 2015 Lords Chamber

Even if the amendment of the noble Lord, Lord Pannick, were accepted, this clause, far from clarifying the law, seems likely to promote more, not less, litigation, unless, of course, people of modest means, for whom legal aid will not be available, are deterred from bringing otherwise well founded claims and are thereby denied justice. But perhaps that is, after all, what the Government really want and what the Bill will produce if Third Reading is concluded this afternoon and it is enacted, as in all probability will be the case. It does not enlarge any substantive issue and addresses a problem which essentially does not exist. Clause 3 which, as I say, is the only part creating a new position, actually makes the legal position worse, and will prejudice a great many more people.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this issue has not occupied a great deal of time in your Lordships’ House but it has been the subject of vigorous debate. It has been assumed that these matters are discussed in the Dog and Duck from time to time. Before today, I do not think that it was even envisaged that the discussion extended as far as Antarctica.

This is a small but important Bill, as the Government have said on a number of occasions. First, I wish to deal with the government amendment. In the course of the debates on Clause 3 at previous stages, concerns were raised from a number of perspectives regarding the use of the phrase “a generally responsible approach”. The noble Lords, Lord Beecham and Lord Pannick, expressed concerns that using this phrase might suggest that a court should give weight to a defendant’s track record on safety, rather than focus on his or her conduct in the specific activity giving rise to a claim. My noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral supported the clause but took the view that the word “generally” is capable of bearing a broad range of definitions and, conceivably, may serve to confuse.

I indicated on Report that we were attracted to the suggestion made by my noble friends of replacing “generally” with “predominantly”, and, following further consideration, we have concluded that this is the best approach to give greater clarity to the aim of the clause. This amendment makes clear that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record. Instead, it means that the court must focus on whether the defendant has taken a predominantly responsible approach to safety in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred. As I have previously explained, we believe that this is an important factor that merits the court’s attention.

Perhaps I may deal with some of the points raised during this short debate. The House will not have lost sight of the fact that the scheme of the Bill is that the court must “have regard” to certain matters, including those we are currently concerned with in relation to Clause 3. This does not mean that the court ignores all the other matters relevant in a negligence action; it simply must have regard to certain matters but may decide that they are not of sufficient importance to have a significant effect on the outcome of the case.

I shall deal with the point raised by the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, about an accountant—the subject of an exchange on Report between myself and the noble and learned Lord, Lord Goldsmith. I said then—while slightly exaggerating the longevity of an accountant’s profession —that it did not matter whether previous tax returns had been completed impeccably if a tax return or the advice in question was negligently done. I adhere to that. I might, of course, have given a further answer, which is that the relationship with an accountant is almost always contractual. As well as owing a duty of care in tort, he or she will owe a contractual duty to exercise reasonable care in providing accountancy services. Section 13 of the Supply of Goods and Services Act provides:

“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.

The implied term can be negative or varied, provided that it does not fall foul of the Unfair Contract Terms Act 1977.

However, the real issue here is whether the term “carrying out the activity” is sufficiently clear. We think that this is a matter that judges will have no difficulty in interpreting. The activity in question would be completing the tax return, as I said previously, but I shall endeavour to give an example of what this clause is aimed at. I eschewed giving examples for the fear that they can be misleading. However, many claims are brought against supermarkets for spillages that take place in their aisles. With the best will in the world, from time to time, yoghurt, milk, soft drinks or the like are found on the floor. They therefore present a potential slipping or trip risk; and, apparently, a lot of people have, or have alleged that they have, fallen on these slippages. A well ordered supermarket will have a means of ensuring that these spillages are cleared up as soon as reasonably possible, and that, if necessary, some sort of sign can be put around them while they are being cleared up, or that somebody has charge of the process of clearing them up. Nevertheless, such a short period may elapse between the spillage and the accident that this may be impossible. What the Bill is aimed at is: if you are shopping at a supermarket and if its approach towards your visit is, “We don’t really mind that there is a spillage. We don’t have anything by way of a system. The spillages can remain there in the aisle”, then that is perhaps a relevant factor. On the other hand, if it has a system that is satisfactory and sensible—so that designated people are in charge of clearing up or guarding against these slippages—that is a responsible attitude. It should have the desirable result of limiting the number of accidents. However, it is also a matter that most people would think ought to be taken into account in deciding whether there was negligence.

The argument that this is too broad would have a little more force if the words “carrying out the activity” were not there. As I said, that focuses on the activity of a visit to the supermarket or something rather more specific, but is not quite as narrow as “act or omission”, which is proposed to be inserted in the Bill. I accept what the noble and learned Baroness, Lady Butler-Sloss, said: “act or omission” are words that are very familiar to judges, although “carrying out an omission” is rather an infelicitous concept. It is difficult to know how one carries out an omission. I acquit the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, of poor draftsmanship, because I suspect that their answer would be rather like what the Irishman is alleged to have said to the man lost in Ireland and looking for directions: he “would not necessarily start from here”. However, this clause is likely to be part of the law and we must have an amendment that is helpful and clarifies the law. We say that the proposed amendment does not help. We consider that the clause as worded, and as my noble friend Lord Hodgson said, ensures that the court’s attention is focused specifically on the activity in the course of which the alleged negligence or breach of statutory duty occurred. We think that the clarification of the different adverb that the Government have tabled will remove any residual uncertainty. Therefore, we do not believe that the amendment would improve the clause’s drafting or its effectiveness.

The noble Lord, Lord Beecham, was rather more wide-ranging in his attack on the Bill. I do not think it would be helpful to the House if I repeated the answers that I have given to his many attacks on the Bill throughout its passage. We are dealing with a relatively narrow amendment.

It is possible that the amendment tabled by the noble Lord, Lord Pannick, might narrow the scope of the clause by directing courts to focus on whether a single act or omission in the course of a particular activity was predominantly responsible, rather than on whether the defendant’s approach to the activity as a whole was predominantly responsible. While the Government agree that the term “activity” should not be given an overly broad interpretation for the reasons that I have given, we do not think that the court’s focus should be narrowed to the extent that the amendment suggests. We believe that it must be right in cases such as these to require the courts to take a broader view of the defendant’s conduct by looking at whether his approach to safety—taking into account all he did or did not do—was predominantly a responsible one.

At earlier stages of the Bill, the noble Lord, Lord Pannick, asked me whether this would lengthen cases, as people would look at the overall approach. With great respect to him, in these cases a claimant or defendant will often look at their system generally. If there is an accident, attention will often be drawn to an accident book or an accident record, or the proper approach to a history of accidents. I do not accept that there will be any significant lengthening or complication of litigation as a result of this.

The Government’s approach will help to reassure a wide range of individuals and organisations—whether it will spur them on to the sort of adventure undertaken by my noble friend Lord Hunt of Wirral, I am not sure. However, we hope that it will help to encourage volunteering and to remove, at least to some extent, the shadow that can hang over many activities: the fear of litigation. I simply do not accept the disavowal by the noble Lord, Lord Beecham, of there being a compensation culture, or, at the very least, a perception of one.

We think that the courts will still have every opportunity to come, as they do, to sensible decisions on the facts of each case, using the well established principles of negligence. We regard these changes brought about by the Bill, particularly Clause 3, to be modest in scope, nevertheless representing a change that reflects what most would regard as sensible.

I shall move Amendment 2 in due course, and I hope that, on the basis of the explanation I have given, the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, will agree to withdraw Amendment 1.

--- Later in debate ---

Moved by

[Lord Faulks]

2: Clause 3, page 1, line 12, leave out “generally” and insert “predominantly”