| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Ashton of Upholland: It will not surprise anyone to hear that my familiarity with the Occupiers' Liability Act 1984 is limited. I know that the noble Lord is using the amendment to raise an issue that applies to that Act, as the amendment technically does not work because we are dealing with "desirable activity" at this point. However, that has never stopped me from trying to deal with a point that I think is valid in context. I am not going to get into details of how effectively the Act has worked for 21 years, because it will not surprise anyone to hear that I am no expert on it. However, I will undertake to ask the relevant department and Minister whether we can get a letter to the noble Lord, Lord Hunt, and put a copy in the Library to give some view on how it is working in the context of the amendments. I hope that that will go at least some way to deal with the issue that the noble Lord has rightly raised.
In British Railways Board v Herrington the age of the child was an important consideration, but there were other considerations. The danger was clear, and the board knew that children used to go through the broken fence—there was evidence of that—and the risk was one which it was reasonable to do something about. While I accept that you have to take greater care in particular ways for children, I do not think that you can differentiate children from adults, as the noble Earl was saying. The noble Lord, Lord Hunt, raised a question that I would have raised with him—that the amendment does not deal with those who have a learning disability and have a mental age of six but may be an adult. The amendment states,
I would prefer "or/and" to "but", because it is important. I know that the noble Lord, Lord Hunt, would not have missed that group of people out, but it is an important factor in thinking through how one would tackle this.
I am very loath, for the reasons that the noble Earl gave, to do anything that is age-specific, because children are so different. One of the things that I learnt as an education Minister was just what a disparity of ability and common sense there was between children of the same age. Some of their upbringings and
15 Dec 2005 : Column GC230
lifestyles—or just the way they were—meant that they did not have any common sense at all. I am nervous of saying that it was particularly true of boys in my experience, but I will not go there in the company that I am keeping this evening. Perhaps that may have been the experience of noble Lords. I will be in real trouble when my son reads that in Hansard.
I accept that we want to be clear about people taking on activities and understanding that is what they are doing, and that they need to understand the risks they take within the limits of who can understand risks. That is what the noble Earl started us off with. Even adults undertaking a new activity do not necessarily know the specific risks, and we need to be clear about that. I do not think that we can do anything age-specific, for the reasons that noble Lords would expect me to give. I have undertaken to try to get, at least in part, an answer to the very specific question that the noble Lord asked about that legislation. I am sure that the Minister concerned will thank me greatly for it.
Lord Skelmersdale: Before my noble friend responds, there is an extremely serious point in the second half of the amendment. I would like to see the whole thing rolled into one, quite honestly. I would like the courts to consider the mental age of the litigant in every case. That would be extremely valuable all round.
Baroness Ashton of Upholland: That is a factor that the courts would and do take into account in individual cases, but its relevance is applicable in either particular circumstances or with particular groups of people. One could take a group of 45 year-olds or 50 year-olds, or even a group of noble Lords of a particular age—although some noble Lords are younger than that—and find that there were very different levels of experience, knowledge, abilities and so on, but the courts would find it very difficult to take that into account in all circumstances. In the current law, the courts can weigh up what has happened and take into account particular factors, of which age and disability of any kind can be part, as well as the information, support and advice that the individual participating in the activity had received. That is probably the best place to leave matters—where we are now—as it seems to work well.
Lord Hunt of Wirral: This has been a very helpful opportunity to consider the position of children. I take the point made by my noble friend Lord Skelmersdale and am grateful to the Minister for having kindly agreed to let me have a letter responding, which I shall make available to other Members of the Committee.
Before we move on to the clause stand part debate—I hope that I am not pre-empting what the noble Lord, Lord Goodhart, may say in that debate—I should point out that the Herrington case gives us a good example of the right way to proceed in introducing legislation of this nature. The case highlighted a mischief that then had to be dealt with by statute. The matter was referred to the Law Commission, which produced a report and then recommendations, which
15 Dec 2005 : Column GC231
then took the form of the Occupiers' Liability Act 1984. That gives us an example of the right way to proceed when you are amending legislation.
If I have a criticism of the Government that is stronger than the other criticisms, it is that in allowing this legislation to come forward they have missed out the Law Commission. I may be wrong about that—the Law Commission may have been consulted on Clause 1. But if it really was the right way in which to proceed to overcome the problems that we are all agreed exist in the element of risk that young people in particular undertake, it would have been a good idea to ask the Law Commission whether it could come forward with a clause. The noble Lord, Lord Goodhart, and I may have some doubts about the clause because it has not been through that process. But the Minister may be about to correct me.
Baroness Ashton of Upholland: No, I am not going to correct the noble Lord. I am responsible for the Law Commission in my department. As I have tried to make plain, we are not amending the law. We have not consulted the Law Commission, but I am very happy to do so if that would be helpful to the Committee; but I did not, specifically because I was not amending the law. My understanding of my responsibility to the Law Commission is to consult it when we are amending the law, when its absolute expertise would be available to us. But that is the reason why I did not consult; I should not want the noble Lord to think that it was due to oversight—it was simply not relevant to my ministerial position.
Lord Hunt of Wirral: I should like to accept the Minister's offer to refer the matter to the Law Commission, since we have time. We have not mentioned it in this debate, but there is a Select Committee investigation going on into compensation culture; there is a great deal of activity going on at present. Against that backdrop, it would be very helpful to Members of the Committee, especially when we reach Report, if the Minister could advise us on the attitude of the Law Commission. The commission is at its best when it is guiding Ministers—especially the Minister responsible for the commission—who do not intend to amend the law but introduce amending legislation. It would be helpful if the Minister pursued the course of action that she has offered to the Committee, which I very much accept. As a result, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Goodhart: As I said in the debate on one of the earlier amendments, the law has got it about right. I am not sure that everyone would agree, but I do not think that there has been any very marked dissent from that. The speech made by the noble and learned Lord, Lord Hoffmann, in the Tomlinson case was robust and balanced and now lays down the law that has to be followed. The Government in their Explanatory Notes
15 Dec 2005 : Column GC232
say that Clause 1 is intended to reflect the law. If so, it does not seem to be obviously necessary, but it does present a danger. The courts may regard it as saying something other than simply restating the law. The courts, after all, tend to regard legislation as creating new law. Therefore, the fact that this new provision appears in Clause 1 increases the risk of litigation because it makes the standing of existing case law uncertain. Is Tomlinson still the last word on the law or have we moved on from that? If so, how far and in what direction? A court can take into account Explanatory Notes as an aid to the interpretation of a statute, but it will not allow Explanatory Notes to override what it regards as the unambiguous meaning of a provision.
Frankly, the Government are treating a real problem with a placebo. It may make you think you feel better, but it does you no real good. There has of course been some pressure that we should have a different Clause 1 that goes beyond the restatement of law and changes the law in favour of the defendants. That is something that we would object to. I believe that we should not lower the duty of care to a level at which injured claimants, many of whom are children, cannot recover damages where there has been genuine negligence as opposed to a justifiable acceptance of the risk. Some school trips are not well managed and involve running risks that are not proportionate. The fact that activities that may be desirable and carry a public benefit have inherent risks does not exclude the duty, even when you accept those risks, to minimise them so far as practicable. As I said in an example at Second Reading, if you consider a group that goes abseiling, which is a challenging form of adventure that involves risks, some of which are unavoidable, that does not exclude the liability of the leader of the group to ensure that all ropes are in proper condition, for example, and that everyone taking part is fully instructed and fully supervised.
The real problem here is not in fact the substantive law of negligence but the cost of litigation and the consequential inflation of insurance premiums. A large proportion of the risky activities conducted by school groups will normally be covered by insurance. There are things that could be done about it. They cannot be included in this Bill, but there are things that should be seriously considered. We could, for example, make it a rule that where the damages awarded are less than could have been awarded under a small claims procedure, the court should normally limit the claimant's costs to those recoverable under that procedure. That would certainly discourage the relatively small injury claims where, ultimately, damages are likely to be less than £1,000, which is currently the limit for small claims for personal injury. That should mean that there is much less litigation over minor damage from which there is recovery within a few hours or days and which leaves no permanent damage to the person who suffers it.
The noble Lord, Lord Hunt, mentioned that we have problems with contingency fee agreements, which can impose an excessive cost burden on defendants who have to pay not only the ordinary
15 Dec 2005 : Column GC233
costs but a substantial mark-up over them as well. Although I would not at this stage propose any specific changes to the rules about CFAs, because that involves complex issues, it could be looked at. Another suggestion is that the Government could help with the setting up of a self-financing mutual insurance scheme for the activities of schools and other charitable groups—Scouts and so on—so that they do not have to pay commercial premiums. Mutual insurance can be of considerable assistance. Fifteen or 20 years ago, when the Bar found extreme difficulty in getting professional negligence insurance from commercial organisations at reasonable rates, we set up our mutual insurance scheme, which has been highly successful. There are ways round the problem.
5.15 pm
Therefore, Clause 1 is at best unnecessary and could increase uncertainty as to the law and lead to yet more litigation to resolve that uncertainty. We will bring the amendment back; we will have to consider whether we will press it to a vote on Report in due course.
The idea raised by the noble Lord, Lord Hunt, of referring the matter to the Law Commission is an extremely good one. If it were no more than a simple restatement of the law, I could understand why the Minister did not think it necessary to do so. However, our debate makes it clear that there are without doubt ramifications and implications from Clause 1 that make it highly desirable that it be referred back to the Law Commission. In view of the stage which we have got to, I accept that we will need a quick reply from the Law Commission; I do not suggest that the matter be sent for a full-scale review, which might take months. The commission is perfectly capable of providing a quick discussion and report that will indicate whether, in its view, the clause implies any changes in the law and, if it does, whether it is possible to suggest alternative wording that would avoid the risks.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |