Social Action, Responsibility and Heroism Bill

Debate between Lord Pannick and Lord Brown of Eaton-under-Heywood

Tuesday 6th January 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, Amendment 1 is in my name and that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It raises a drafting point, which will encourage even more noble Lords to leave, but it is a drafting point of some significance on this curious Bill.

The purpose of Clause 3, as the Minister explained on Report, is to make clear that the court, in considering a claim of negligence, must take account of the context in which the alleged negligence occurred. Of course, that is already what courts do—but we have had that debate. On Report, concern was expressed that the word “activity” in Clause 3 is too broad. The reason for the concern is very simple. We all agree, including the Minister, that it is not the intention of this clause that, when a doctor is sued for negligence for cutting off my right leg because I had a pain in my left leg, it should then be open to the doctor to plead in his or her defence, “I have been treating legs for 40 years and have never before made such a mistake”. We all agree that the doctor should not be able to rely on such a matter in the defence. What the claimant is concerned about, and what the court must address, is what happened on the specific occasion when that claimant was treated.

The Minister confirmed that that is indeed the Government’s intention. He said on Report on 15 December, in answering questions about a hypo-thetically negligent accountant, that,

“it would be the particular tax return or the particular piece of advice”,

which mattered. He added:

“It would be no good for them to say, ‘In the 99 other years in which I did this particular act”—

accountants have a very long professional career—

“I did a good job’”.—[Official Report, 15/12/14; col. 37-38.]

So we all agree that that should remain the law. The problem is that the word “activity” in the first line of Clause 3 suggests the contrary. It requires the court to have regard to “carrying out the activity” in the course of which the alleged negligence occurred. However, the word “activity” might suggest the general practice of medicine, accountancy or whatever function is performed by the defendant. Since we all wish that the court should continue to focus on the treatment of this claimant on the occasion when the alleged negligence occurred, I suggest that the words “act or omission” are much more appropriate than the broader term “activity”.

Amendment 2, in the name of the Minister, would replace “generally” with “predominantly”. That is an improvement to Clause 3 that I support, but it does not address the problem that I am concerned about, caused by the inappropriate use of the word “activity”. I beg to move.

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

My Lords, I have added my name to this amendment because, speaking as a judge of 28 years’ experience, it concerns me that judges in future are going to have to deal with the Bill in its present form. It would be so much easier and less muddling for them if we managed to make the amendment for which we are contending today. Everyone agrees that Clause 3 is the only part of the Bill that is intended to effect any change whatever to the law. Its essential purpose was set out by the Minister at some length on Report, but really one can simply cite this passage:

“If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability?”.—[Official Report, 15/12/14; col. 36.]

So far, so good—in all events, it is too late now, at Third Reading, to question the desirability of making this sort of change without taking any soundings from, for example, the Law Commission, a point that was stressed strongly on Report by my noble and learned friend Lord Walker of Gestingthorpe—but the real difficulty with the present wording was crystallised on Report in the exchange between the Minister and the noble and learned Lord, Lord Goldsmith. The noble Lord, Lord Pannick, has already made some reference to that exchange, but perhaps it is worth setting it out at a little greater length. The noble and learned Lord, Lord Goldsmith, raised the question of what would arise if, say, someone sued their accountant for negligence with regard to the completion of their tax return, and he suggested that under Clause 3 in its present form the accountant could say:

“‘The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record’. How do the words in the clause prevent that from being done?”.

The Minister responded by saying that,

“the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says”.

The noble and learned Lord, Lord Goldsmith, in turn said:

“It would not be this tax return, surely, but the activity of advising on tax returns generally”.

The Minister’s response—this is the final quotation from that exchange—was:

“I respectfully disagree with that interpretation because it is concerned with the activity in question, ‘in the course of which the alleged negligence or breach of statutory duty occurred’. It would not therefore, deal”—

the noble Lord, Lord Pannick, has cited this—

“with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause”.—[Official Report, 15/12/14; col. 37.]

Social Action, Responsibility and Heroism Bill

Debate between Lord Pannick and Lord Brown of Eaton-under-Heywood

Monday 15th December 2014 Lords Chamber

[Lord Pannick]

My Lords, there is a further reason why Clause 4 is pointless and that is, of course, because it adds nothing to Clause 2. It is very difficult to understand in what circumstances a person is acting heroically in an emergency when they are not also,

“acting for the benefit of society or any of its members”.

Perhaps the Minister can tell the House of a theoretical case that would not fall within Clause 2 that falls within Clause 4. There is no doubt that the removal of the final words of Clause 4 is a distinct improvement. We must be grateful for small mercies.

I have a further concern that when courts have to apply Clause 4 there is ample room for no doubt lengthy debate as to what is meant by “heroically” and “emergency”, neither of which is defined in the Bill.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, support the amendment tabled by the noble and learned Lord, Lord Lloyd, for the same reasons as I indicated in respect of Clause 2. It adds nothing. If you ask a simple question whether there is a court in the land which would not, under the common law,

“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”,

the question answers itself—of course there is not. I ask the Minister to say what is added by the words “acting heroically by”. Why could it not just be, “when the person was intervening in an emergency to assist an individual in danger”?

Apart from ramping up the rhetoric—that is essentially what this whole business is—what actually is added by “acting heroically by”, except for another hour of the court’s time if eventually it has to apply this clause?