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Baroness Ashton of Upholland: I am grateful to the noble Lord, although I am always nervous when we stray into discussing other groups of amendments before we are at the relevant point. I shall therefore not address the issues that we will come to later. I am also conscious of being in Committee.

No, the clause does not amend the law. I apologise if I did not put things as clearly as I intended; my see-saw analogy is the best way for me to describe them. In this context, we have a real perception that the law has become in doubt, either because people believe that the courts are making decisions in an inappropriate or wrong way, or because people's behaviour is changing due to their belief that the law does not do what we say it does. We want to make sure that the law is not in doubt. I understand from the advice that I have as a government Minister—I am sure that the noble Lord, Lord Hunt, will recognise it—that it is a function of legislation to remove doubt in the law. I am not trying to amend the law, but to take away doubt.

At the end of the noble Lord's speech, I was not sure whether he was in favour of the clause or not. If he were able to come up with a way of dealing with statutory duty, I would be interested to hear it. I was trying to say that you have not only so many different statutory duties, but different standards of care. We deliberately sought not to curtail the activities of the courts in any way by making the clause specific in one sense, but very open in another. It is there precisely to deal with perception. That is absolutely appropriate in this context. I hope that that clarifies our position.

Lord Chorley: I do not want to prolong the discussion. I agree very much with the noble Baroness—we do not want to discourage things—but what on earth is the point of Clause 1 unless it makes some change? We are groping to try to find a
 
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reasonable balance so that the courts do not make some of the silly decisions that they made in the past due to ignorance on what is reasonable in the circumstances.

Baroness Ashton of Upholland: Indeed. Because Clause 1 is, in a sense, dealing with that perception, it draws attention to these issues, which we know from not only the length of time that we have taken on this one amendment, but also the debate and conversation that is happening outside your Lordships' House and Parliament. That is very important, but I would not want anyone to believe that we other than think that the courts generally get this right and that Tomlinson was an important moment in time. It was very well known and discussed. Of course, we have sought to make sure that we had discussed this appropriately in putting this forward. But it is not about fettering the courts in a way that would be inappropriate. It is about making sure that we deal with perception, which we believe is having an adverse effect on activities that should be welcomed and are appropriate within the recognition that we want to make sure that children in particular, but also all people taking part, understand the risk and that issues of safety are taken on board.

Lord Hunt of Wirral: The key question arising from this debate is: is it a desirable activity to introduce Clause 1? I am not too sure that it is. The Minister is pressing me to know whether I agree with the clause. But I am in the same position as the noble Lord, Lord Goodhart. I have some serious doubts, mainly because I cannot quite see exactly what the clause is trying to do. My noble friend Lord Lucas set out some general principles, which were very helpful in understanding what we should be trying to do. Those people who are going to be sued should know exactly where they stand. I agree with my noble friend. I am just not sure that we have reached a conclusion which I find acceptable.

I agree with the noble Earl, Lord Erroll. We have to know what breaches of statutory duty we are talking about. I return to the see-saw analogy, which, after all, the Minister has used. In order for a see-saw to be balanced, something has to happen—not not happen, but happen. Therefore, either Clause 1 is doing something or it is not doing anything at all. I do not believe that Parliament has yet reached the stage where it is there to educate people on what the law is. Yet, that was the conclusion that the Minister seemed to be reaching—that the law is satisfactory. The Minister must be the only person who thinks that it is. But the argument is that the law is satisfactory: there is therefore no need to amend it. We have to deal with the fact that people do not understand it.

Therefore, the purpose of Clause 1 is to educate people. I know that the Government are re-thinking their education policy, but I am not too sure that this is a feature of it. Perhaps it is no holds barred: I understand that it is open season down in the other place and that anyone who has a view about education will be heard. Perhaps I ought to write to the Prime
 
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Minister putting the view of the noble Baroness, Lady Ashton, on education. But I do not think that it is the purpose of legislation to educate.

It is a paradox. It might be an oxymoron to say that Clause 1 is there so that people will understand the law. In fact, Clause 1 introduces a number of concepts which make the law more difficult to understand. Either the law is satisfactory at present, as the Minister says it is, or it is not, in which case Clause 1 is necessary. So the jury is out on Clause 1. No doubt we will return to a number of other areas later. This week, I was able to attend a presentation given by the Association of British Insurers, which was interesting. I think that everyone would agree with its comment that,

"The Government has recently put forward its own Compensation Bill. Its modest provisions will only work effectively if they are the first step towards a more comprehensive programme of reform".

I believe that the Minister agrees with that. Now let us see what the other steps are before we can see whether this first step—Clause 1—is the right one to take.

I will of course reflect on everything that the Minister has said, but I am sure that we will return to this issue. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3 pm

Lord Hunt of Wirral moved Amendment No. 2:

Page 1, line 4, leave out "may" and insert "shall"

The noble Lord said: Amendment No. 2 would leave out "may" and insert "shall". The noble Lord, Lord Greenway, has added his name to the amendment, but he is sadly unable to be present. He has asked me to convey his apologies to the Committee.

This is an attempt therefore to move the power of the court from a discretionary power to a mandatory power. I understand that Ministers may indeed be reluctant to fetter the discretion of the court, but the discretion remains in the overall provisions of Clause 1, which enable the court to consider all the circumstances of the case. Of course the law should continue to develop, but what is needed is a clear statement to judges and to the public. There should be some readily understood clarity on what this clause seeks to do. What is wrong therefore with the clause telling everyone that this will be considered, particularly if it does not amend the law? In a way, the Minister has given me my strongest argument for this amendment in saying that it does not amend the law. Well, if it does not amend the law, what is the objection to making it mandatory?

There is an obvious parallel with the new provisions on periodical damages or periodical payments. The court is directed by the legislation to consider what remedy to apply, but retains the discretion, subject to guidelines, to decide on the application to an individual case. What is really needed here is greater clarity and certainty. I echoed in the last debate that the last thing we should ever do is enact legislation that
 
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makes the situation less clear and less certain. I envisage—unless the Minister is willing to respond to a number of the points that have already been made—that we are going to get endless satellite litigation on whether the judge should exercise the discretion, let alone how the discretion is to be exercised.

I return to the Arculus report from the Better Regulation Task Force entitled Better Routes to Redress, which noble Lords will recall was published in May 2004. It put forward this view:

"an exaggerated fear of litigation, regardless of fault can be debilitating. The fear of litigation can make organisations over cautious in their behaviour. Local communities and local authorities unnecessarily cancel events and ban activities which until recently would have been considered routine. Businesses may be in danger of becoming less innovative—and without innovation there will be no progress".

Those words underpin the strength of the case for making this legislation more certain as to its impact and therefore moving from discretionary to mandatory, and that is why I wish to move the amendment. I beg to move.

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