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The Earl of Erroll: If I had been a bit more organised a couple of days ago I would have added my name to all the amendments tabled by the noble Lord, Lord Greenway, so in his absence I would be delighted to say a few words on them.
This amendment is very important. The concept that it is at the discretion of the court to ignore the material in Clause 1 is not a very satisfactory one at all; it must take these things into account, or how can there be a defence? If the court decides not to take them into account, what do you do about it? I do not know enough about the legal procedure, but it would introduce a large degree of certainty if someone knew that the court would have to take these things into account and it was not at its discretion to ignore it.
I shall say this briefly, as I shall speak about it further in the clause stand part debate, but I disagreed entirely with the question that noble Lord, Lord Hunt of Wirral, asked about whether we should have Clause 1. I shall really only be taking part in discussion of that clause, because to me that is the most important aspect. As for the rest of my remarks about why I believe that to be so, I shall wait until we have dealt with the amendments before making a very short speech in the clause stand part debate.
Baroness Ashton of Upholland: I am always interested in "may" to "shall" debates, because in my ministerial experience they are always good at bringing out some of the critically important underlying factors about how we approach a particular piece of legislation. Noble Lords will notice that "may"/"shall" debates are peppered through the Bill—and I may even be helpful later on about some of those.
The noble Lord, Lord Hunt, rightly referred us back to the Better Regulation Task Force report. It struck me that it might be worth reading out something else from that report, which supports what the noble Earl was just saying. The report says:
that large sums of money are easily accessible—
"that causes the real problem: the fear of litigation impacts on behaviour and imposes burdens on organisations trying to handle claims. The judicial process is very good at sorting the wheat from the chaff, but all claims must still be assessed in the early stages. Redress for a genuine claimant is hampered by the spurious claims arising from the perception of a compensation culture. The compensation culture is a myth; but the cost of this belief is very real".
In a sense, that is the essence of what we have sought to do in putting Clause 1 into the Bill.
The reason why we said "may" rather than "shall" is that when a court looks at a negligence claim it takes into account all the circumstances of an individual case; those circumstances, of course, vary dramatically from one case to another, as all those who are members of the legal profession will know far better than I. It would not be appropriate to require the courts to take the factor in Clause 1 into account in all cases, which would be the effect of changing "may" to "shall". In some cases, it will just not be relevant, so by making that change we would be trying to make the courts do something that in the normal course of their activities we would not expect them to do—which is, to take into account factors that have no relevance at all. So we have said that they may take them into account, but we are not requiring them to, because of the range and variety of cases.
I am nervous, too, that we do not stray into saying that some factors are more important than other factors. In the range of circumstances in which a particular case reaches the court, there will be a variety of different factors that courts need to weigh up and reach a conclusion on. That is what courts do, and do very successfully; we do not want to hamper their ability to put the appropriate weight, which may be a consequence of changing "may" to "shall".
That may seem like a huge consequence from a small change of word, but it is generally the case that when you have a statute whereby the courts may take something into account, the courts are very mindful that that exists. So I am not particularly concerned that the courts might ignore that—in fact, I am certain that they would not—when it was relevant. We know that it is a factor in the way we approach these matter, but I do not want to turn it into a "shall" and say that it is a requirement when it would not be relevant in all cases. That is why I am not going to accept the amendment and why I hope the noble Lord will withdraw it.
Lord Skelmersdale: Should it not always be the case that personal responsibility, when an accident happens and a compensation claim arises, should always be taken into account by the courts? We seem to have devolved into some sort of compensation culture, which I for one thoroughly disapprove of. I believe that people should exercise a lot more care themselves. I apologise for this Second Reading point, but it is germane to the point that the Minister has just made.
Lord Lucas: Does not the clause change the law? Perhaps I misunderstand how it works, but I believe
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that where there is a judgment of the Judicial Committee of this House it must be taken into account in any relevant case. We are now looking at wording that means it "may" be taken into account in any relevant case.
The Earl of Erroll: The bit I do not understand in the Minister's reply is that if it "shall" be taken into account and on looking at it the court decides that it is irrelevant, it has been taken into account and dismissed immediately. That is fine; I have no problem with a judge or counsel saying, "We have to take into account that this might prevent a desirable activity from being undertaken, but because of the nature of this case that is not relevant. We must also take into account whether we are discouraging people from undertaking functions in connection with a desirable activity, but that is not relevant". The case is dismissed within two minutes. I do not see why putting in the word "shall" will waste any more of the court's time because if the case is irrelevant, it can be dismissed just like that.
I am frightened by the notion that the court will engage in a Second Reading debate on the various points when they are totally irrelevant and spin the case out for their huge legal fees. If we are really that worried, we need to think about how the court system is managed and I know that that is being done. If the real reason we are putting in "may" instead of "shall" is to help court management, that concerns me, too. I cannot see the disadvantage of putting in the word "shall".
Viscount Eccles: I wonder whether I have got the Minister's reply clear. It has been said that the clause will not amend the law and therefore the courts will take the same view of negligence and of standard of care. Therefore, all the legislation is doing is providing the court with an aide mémoire which says, "Please don't forget (a) and (b) when you are doing your normal job". If the clause is merely an aide mémoire that would at least clarify where we are in relation to it.
Baroness Ashton of Upholland: An aide mémoire is an interesting description. I am trying to say that the purpose of Clause 1 is to deal with an erroneous perception of the law by clarifying the issue. That is what it seeks to do. In changing "may" to "shall", it is not about a failure of the courts to recognise that there are many cases in which this might be relevant, but that there are many cases where it is not. If an accountant is in some way or form sued for negligence, should the courts have to take into account desirable activity in that context? Perhaps not, and I suspect they would not in most cases. If you say "shall", the courts have to take it into account. That might feel like a two-minute dismissal, but we have required them to do it. We are not about saying to the courts that we are going to make Clause 1 affect behaviour in a way that would be inappropriate.
In using "may", we have said that where the courts in looking at the issues clearly believe that the desirable activity context is relevant—we will discuss the
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phraseology later—they may take it into account. But we are not saying, "In a case of any kind on this particular subject, whether it relates to an accountant or a lawyer, or to an activity with the Girl Guides or a school trip, you must take it into account". It would be inappropriate for us to do that, and I do not believe that we should do it. Of course the courts take into account the House of Lords decision, but that is different from saying that in every single case they must take into account the one factor from Tomlinson. They would look at the Tomlinson judgment in the round.
That is my understanding, and I approach the matter as a non-lawyer. However, it seems to be common sense for us to be saying to the courts, "You may take it into account, but we recognise that we are dealing with cases of negligence and they cover a vast range of things". That is why it is "may" not "shall".
3.15 pm
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