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Stephen Pound:
I do not share my hon. Friend’s gifts of clairvoyance, but for a moment I peered into my mind and saw a future private Member’s Bill of his own, on requirements for insurance companies, and I anticipate being here on a Friday morning to support him in that. However, does he agree that the Mirvahedy
case was essentially a dispute between two insurance companies? We should be asking whether the Bill that the hon. Member for Preseli Pembrokeshire (Mr. Crabb) has brought forward would make such disputes less likely or whether it would encourage more insurers to widen their pool of insured people prior to its becoming a putative Act.
Mr. Dismore: The hon. Member for Preseli Pembrokeshire said at the start of this debate that the number of cases that would be excluded from liability is relatively small. If we start from that premise, the number of cases where the victim would be insured in the way that Mr. Mirvahedy was insured would be even smaller. We would then be using an exception of exceptions to create a new rule. That is the real problem. The debate is building a huge superstructure from a problem that is relatively trivial in the wider scheme of things. It is an important matter and an important legal principle, but the Bill would not make any difference to the insurance industry because it applies to a small number of claims. It would not make any difference to the insurance premium of the hon. Member for Brecon and Radnorshire (Mr. Williams), because he is not a particularly attractive risk for the insurance industry to take on.
The real reason for the current situation can be found in another part of the article in the Library briefing. It states that
“insurers are likely now to insist on much higher standards of risk management in the form of record keeping, risk assessments and compliance with local licensing regimes.”
That has nothing to do with Mirvahedy; it is about negligence. If somebody is sued for negligence, those are the sort of things with which they will have to be able to show that they have complied in order to defeat the claim. The Mirvahedy case would have had strict liability irrespective of risk assessments, licensing regimes and record keeping, so the case has made no difference at all.
Quite rightly, the insurance industry has recognised that the animal industry is not as safe as it could be. A lot of claims have been made, but they are nothing to do with Mirvahedy. They might instead relate to ordinary negligence procedures and to other parts of section 2 of the 1971 Act. If there has been an increase in the number of claims, that might be where it has come from and the reason why the insurance industry has jacked up its premiums. It might use Mirvahedy as an excuse, but the reality is rather different.
Mr. Crabb: Perhaps the hon. Gentleman will clarify whether he is quoting an article by Susan Rodway QC.
Mr. Crabb:
She is one of the UK’s three leading barristers with expertise on the 1971 Act. The hon. Gentleman should be aware that she has participated in our discussions in the past few months with those in Parliament, stakeholder organisations, officials from the Department for Environment, Food and Rural Affairs and others. I assure him that she is very much alive to the fact that Mirvahedy has created problems. There are other problems and pressures associated with the Act, but if the hon. Gentleman wishes to quote
Susan Rodway QC, he should be aware of her participation in the discussions about the effect of Mirvahedy.
Mr. Dismore: I am happy to accept what the hon. Gentleman says about Ms Rodway, but I am talking about cause and effect. Yes, insurance premiums have risen, but why? Is it because of Mirvahedy or other factors? My argument in response to his case is that when one analyses the facts, one sees that Mirvahedy can logically have had only a minor impact on premiums, if it has had one at all.
The growth of insurance premiums is the hon. Gentleman’s key point, but I believe that the insurance industry has made a general risk assessment of its exposure to liability in respect of animals, and particularly horses. It has recognised that there are serious concerns irrespective of Mirvahedy, so it is clamping down on riding establishments that are not doing things properly. I think that we would all agree that risk assessments and appropriate record keeping are good, and I am sure that we would agree that compliance with local licensing regimes is good. That is why the insurance industry is insisting on those things. I am sure that premiums have risen for those who have not been following those procedures, who present a much bigger risk than the off-chance of a Mirvahedy-type claim. That is why insurance premiums have gone up.
There has been a general trend for the insurance industry to cherry-pick and to make it difficult for small business, not just in relation to claims on animal matters. That has been a fact of insurance life for quite some time. The timing of the Mirvahedy judgment and increases in insurance premiums may have coincided, but that is indeed a coincidence rather than being due to cause and effect to any great degree.
Mr. Mahmood: As my hon. Friend the Member for Glasgow, North-West (John Robertson) and I mentioned earlier with particular reference to injuries caused by dogs, many people in urban conurbations do not insure themselves against that risk. Will the Bill make a real difference to my constituents? If, for example, someone campaigning for me in the constituency and dropping leaflets through the door has their finger ripped off when they put their hand through the letterbox or someone enjoying a day in the park with the family gets set on by a dog, causing serious injuries, how will the Bill assist them if the owner of the animal has no insurance?
Mr. Dismore: I regret to tell my hon. Friend that the Bill will not assist them at all. That is the issue. It takes us back to earlier discussions of whether we should have compulsory insurance for animal ownership. I suspect, however, that in the circumstances my hon. Friend the Member for Birmingham, Perry Barr described, even if we had legislation making insurance for dog owners compulsory, certain irresponsible people would still not be insured. Unfortunately, some people are irresponsible and do not insure when they should; for example, at any one time, something like a fifth of motorists are not insured. There are, of course, arrangements in the motoring industry to compensate those who are injured by uninsured, negligent drivers, because, unfortunately, some people are irresponsible and do not comply with the law.
Stephen Pound: The Law Commission report on which the Animals Act 1971 was based actually reported in 1967—41 years ago—yet it was not until cases such as Curtis v. Betts of 1990 that that Act started to be subject to legal scrutiny. Does my hon. Friend feel that in the period between the Law Commission report and Curtis v. Betts, the law actually operated? If so, what has changed? If my hon. Friend denies that there is a compensation culture, what has suddenly caused this flurry of cases and increased scrutiny of the 1971 Act?
Mr. Dismore: I do not think that there has been a flurry of cases. If we go through history, we find such cases coming through all the time, as I shall explain later in more detail when I examine some of the consequences if the Bill changed the law as the hon. Member for Preseli Pembrokeshire wants. There has not been a huge upsurge, but a steady trickle, going back, in my reckoning, to about the 1880s—
Stephen Pound: Possibly the 1980s.
Mr. Dismore: My hon. Friend suggests the 1980s, but I actually mean the 1880s, as there have been many such cases throughout history. Frankly, I do not believe that the Mirvahedy decision is primarily responsible for that significant increase. The hon. Member for Preseli Pembrokeshire conceded that, because he acknowledged that there were few such cases.
Mr. Crabb: There may be relatively few cases, but there is certainly enormous confusion about the law. Even when cases are not going to court, the confusion in the law is leading to adverse outcomes. That is the central issue in our discussion.
Mr. Dismore: First, I do not concede that any such confusion in the law is as confusing as the hon. Gentleman suggests and, secondly, the adverse cases are those when people are not compensated rather than the opposite. That is my main difference with the hon. Gentleman, who prefers to see children go uncompensated.
Mr. Dismore: The fact remains, to finish the point about insurance that my hon. Friend the Member for Ealing, North raised earlier, provision for compulsory insurance is already in place in certain circumstances. Chapter 70 of the Riding Establishments Act 1964 makes it a requirement for riding schools. Section 1(4A)(d) makes it absolutely clear that
“the licence holder shall hold a current insurance policy which insures him against liability for any injury sustained by those who hire a horse from him for riding and those who use a horse in the course of receiving from him, in return for payment, instruction in riding and arising out of the hire or use of a horse as aforesaid and which also insures such persons in respect of any liability which may be incurred by them in respect of injury to any person caused by, or arising out of, the hire or use of a horse as aforesaid”.
Thus, there is already a requirement for compulsory insurance in the horse industry—a point I put to the hon. Member for Leominster, who was clearly not aware of the Riding Establishments Act 1964. Although
that requirement for comprehensive insurance dates from the 1960s, it was reinstated in the Riding Establishments Act 1970, which made provision in similar terms, so there is nothing novel in my argument that there should be compulsory insurance for animal ownership. It goes back to 1964—before the 1967 Law Commission inquiry, before the Animals Act 1971 and before the Riding Establishments Act 1970, which also predates the 1971 Act. What I propose in that respect is nothing new.
Where does that take us? The Library briefing summarises the position simply:
“The Bill aims to narrow the number of situations...when an owner of an animal will be strictly liable (that is liable for compensation to an injured party regardless of whether there is any fault on the owner’s part) following an accident involving the animal.”
The Mirvahedy case puts the point rather clearly and throws the question squarely upon us. Lord Nicholls of Birkenhead, who made the lead judgment in the Mirvahedy case, put it this way:
“The appeal raises one question: is the keeper of an animal such as a horse strictly liable for damage caused by the animal when the animal’s behaviour in the circumstances was in no way abnormal for an animal of the species in those circumstances?
Lest there be any misunderstanding one point should be clarified at the outset. Considered as a matter of social policy, there are arguments in favour of answering this question yes, and arguments in favour of answering no. It may be said that the loss should fall on the person who chooses to keep an animal which is known to be dangerous in some circumstances. He is aware of the risks involved, and he should bear the risks.”
That is my case. Lord Nicholls continued:
“On the other hand, it can be said that, negligence apart, everyone must take the risks associated with the ordinary characteristics of animals commonly kept in this country. These risks are part of the normal give and take of life in this country.”
That is the argument of the hon. Member for Preseli Pembrokeshire, and that is what his Bill would achieve. Those paragraphs from Lord Nicholls’s judgment fairly and squarely put the difference between us in the House today.
“These considerations, and other arguments of this nature, are matters for Parliament. They are not matters for this House acting in its judicial capacity. It is not for the courts to form a view on which of these arguments seems the more weighty when Parliament has already carried out this exercise. Parliament must be taken to have weighed the various factors, and balanced the conflicting interests of those who keep animals and those who are injured by them, when enacting the Animals Act 1971. The answer to the question I have posed lies in interpreting the provisions of this Act, and in particular section 2(2), in accordance with established principles of statutory interpretation.”
Applying those principles, Lord Nicholls and the majority in the Mirvahedy case—we have heard a lot about the minority—came to the conclusion that, in those circumstances, Mr. Mirvahedy should be compensated, and I agree with Lord Nicholls. The majority in the House of Lords agreed with him as well.
The basic principle set out in the Mirvahedy judgment is clear, but the issue is not new. It has been troubling society since biblical times, believe it or not. If we look at Exodus— [Interruption.] My hon. Friend the Member for Ealing, North perks up. There is provision in Exodus. That is important because it is the origin of the scienter principle, which goes to the root of today’s debate. The
scienter principle was overturned by the 1971 Act and replaced by section 2(2)(b). It is to do with the extent to which somebody knows or does not know what their animal is likely to do. My hon. Friend is now looking at me with anticipation. If he wants the references, they are Exodus 21, 28-30 and 35-6.
Stephen Pound: I am sure the whole House is grateful for the enlightenment provided by my hon. Friend. I have to say that my Douay version of the Bible is not as yet amended by the 1971 Act, but I am sure that it is only a matter of time. Surely the key point in the case he refers to and the matter we are discussing is whether the Bill would protect and save. Is not that the real issue—the effect on people rather than an obtuse point of law, or even the Old Testament?
Mr. Dismore: As usual, my hon. Friend puts the point succinctly, and we need to see the root of how we got there. I am sure he prefers the King James version to the New International. The King James version simply says:
“But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death.”
I am certainly not advocating the death penalty in those circumstances.
Stephen Pound: However, Justine Greening.
Mr. Dismore: Maybe I will make an exception.
Justine Greening: I am listening carefully to the hon. Gentleman. He mentioned that his dog died, and I am sorry to hear that; I wonder whether its death was due to boredom. I can see that he is very concerned about animals. After he has finished speaking, I have a Bill that will impact on biodiversity, and I hope that he will bear that in mind.
Mr. Dismore: I am sure that the hon. Lady, who is not a regular attender on a Friday—[Hon. Members: “Oh.”] Well, if the House sits on a Friday, I believe that people should come. I come, and my hon. Friend the Member for Ealing, North comes regularly, to debate such matters. I am sure that the hon. Lady would not expect a public Bill to advance to Committee, if that is the will of the House, without receiving effective and proper scrutiny. It was her choice, of course, to timetable her Bill to come after this one. If she had thought about it, she might have picked a different day, when it might have been taken earlier. It would be an unfortunate parliamentary precedent if we were to eschew proper scrutiny of this Bill in order to get on to her Bill.
Justine Greening: I am interested by the hon. Gentleman’s comments. My point is that going back to the Bible is a rather unnecessarily long-winded way of scrutinising this Bill. What does that add to the scrutiny of the various clauses, to which he has not referred particularly so far? Will he take that into account while he continues to ramble on?
Mr. Dismore: I do not think that the hon. Lady has been in the Chamber for the whole debate—
Mr. Dismore: If that is the case, she will know that the debate turns on section 2(2)(b) of the Animals Act 1971 and the efforts of the hon. Member for Preseli Pembrokeshire to change its wording.
The problem is that the origins of section 2 go back to the principle of scienter—to put it bluntly, the extent to which an owner knows what an animal may or may not do or could be attributed with that knowledge. We have to go back to first principles if we are going to start taking them apart. In 1329, there was a case of a cow that struck a child under the mouth, from which blow it died—
Mr. Crabb: The hon. Gentleman clearly has not been listening that carefully to the debate. If he had, he would know that the purpose of my amendment is not to undermine first principles but to seek to clarify the law based on existing principles. His objective, as he has made clear in his speech so far, is to rip apart the principles underpinning the 1971 Act, which, as I understand it, is not under discussion this afternoon.
Mr. Dismore: The hon. Gentleman’s Bill does exactly that; if he wants to change the law around, he must understand what the consequences would be. What he is trying to change goes to the roots of our laws relating to animals. The laws of Alfred refer to a dog biting a man, and what had to be paid for the first offence—that is, strict liability—
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. The hon. Gentleman will not be in order if he continues to trace back the whole history. We are dealing with a very short Bill, and he should bear in mind the distinction between discussion of general principle on Second Reading and detailed dissection in Committee.
Mr. Dismore: In that case, Mr. Deputy Speaker, I will not entertain the House further with the laws of Alfred, entertaining though they may be, or the equivalent laws of Wales, which are even more entertaining. [Interruption.]
Mr. Deputy Speaker: Order. I understand that that might be to the extreme disappointment of the hon. Member for Ealing, North (Stephen Pound), but we will have to bear his disappointment as stoically as we can.
Mr. Dismore: I shall send you the cuttings afterwards, Mr. Deputy Speaker, and you can read them over in the Tea Room if you are so inclined.
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