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Baroness Ashton of Upholland: I wish that the noble Lord had been present on our previous day in Committee because we spent a huge amount of time discussing that issue. I know that he will not mind if I say that I am deeply reluctant to re-enter the dialogue, except to say that we chose a phrase which does not have a legal history. That was deliberately chosen in the spirit of trying to find a way of enabling the courts to determine in their own way, but to try to capture the flavour of what the noble Earl, Lord Errol,
 
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described in our discussions; the concern that activities in the volunteering world are being curtailed because of a fear, rightly or wrongly, of what might happen.

We are open-minded about the wording, but we believe that the suggestions made so far narrow the proposition to the point where things might be left out and a change would therefore be made. We are nothing other than open-minded in thinking that through, as the noble Lord, Lord Hunt, may agree.

Lord Hunt of Wirral: Is the Minister aware that the word "desirable" appears in the judgment of the Appellate Committee? The noble and learned Lord, Lord Hoffmann, in his judgment, refers to "desirable", but in the context of what would be desirable growth. He determined that the word "desirable" was less forceful. It came below "essential" and "highly desirable", coming straight after that. Was the Minister aware of that discussion about the word "desirable" and does it have any significance in her choosing that word in the phrase "desirable activity"?

Baroness Ashton of Upholland: I am aware that the word desirable has appeared before but, as the noble Lord knows, not being a lawyer, my familiarity with how case determination happens is less than his by a long way. I am quite clear that in choosing that phrase we sought to capture but not in a way that narrows it. The word "essential" would not necessarily capture the kind of activities that we are seeking to deal with. I am not sure that the Girl Guides—love them as I do, and I declare my interest as an ambassador for them—would be considered essential, except by my daughter. "Highly desirable" also has other connotations. It is a formulation intended to capture but not in a way that would prevent the courts doing their job. Members of the Committee have expressed their various degrees of like and dislike for the phrase and I have already stated my openness on the matter. I do not want to narrow the provision in a way that would prevent us tackling the issue. That is my only concern about the wording.

Lord Hunt of Wirral: I think that we have all loved Girl Guides in our own way over the years—I am only quoting the noble Baroness.

Baroness Ashton of Upholland: But coming from the noble Lord, it has completely different connotations.

Lord Hunt of Wirral: N o, no, I always follow the noble Baroness. We seek clarification; that is what the debate on the amendment has been all about. There is no doubt that Clause 1 applies—the Minister has now confirmed this—to professional negligence. I am a little concerned that the NHS Redress Bill and various other provisions, rather than making it easier for doctors and others involved in healthcare, is making it complicated and difficult.

My conclusion to the debate is that although the Prime Minister promised that,


 
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it has become rather complicated. When Mr Blair said that simple guidelines would be issued, he was referring to what steps should be taken in the exercise of reasonable care or reasonable skill. He continued by saying that that will provide,

The whole purpose was to try to clarify the law and make it simple so that everyone understood what were their obligations. I am glad that the Minister has agreed to consult the Law Commission, because we are in difficulty here in not having had the phrase tested in any way—certainly not in previously decided cases. I agree with the noble Lord, Lord Phillips of Sudbury, that it is unusual for us to spend so much time considering a clause that does not amend the law.

We do not have a constitution, but I should have thought that it was incumbent on those involved in the passing of laws to decide whether the provision changes the law in any way. If it does not, what is the point of it? We have had a useful debate and, in the circumstances, I should like time to reflect on the points raised. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 16:


"BURDEN OF PROOF
(1) Subject to subsection (2), it shall be for the claimant to prove, on the balance of probabilities, all elements of the alleged negligence, having regard to section 1 above.
(2) It shall be for the defendant to prove, on the balance of probabilities, that the activity or facility in question was for the purpose of public benefit."

The noble Lord said: I shall not detain the Committee long on Amendment No. 16. It would insert a new clause concerning the burden of proof. It is an attempt to clarify the burden of proof. My reading of Clause 1 as it stands is that while the intention is good, it is likely that the test will be used as an additional hurdle for the parties to face in seeking to deal with a claim.

It may also form the basis of applications by those seeking to maintain a claim asking for pre-accident disclosure of the sort of documents referred to by the noble Earl—risk assessments. Claimants may well want to see copies of the risk assessments and therefore we may be creating more litigation rather than less. I hope the clause does make it clear that the defendant will have to prove that the activity or facility is for public benefit, but that once it has been done, the claimant has to prove all the remaining elements of the negligence. Thus with a school trip, for example, the defendant would show that the purpose of the trip was one of public benefit and the claimant would then have to show that certain steps should have been taken which would not have prevented the trip taking place.

This goes back to the point made a few moments ago that any government, in introducing a new phrase into the law, are introducing a provision which changes the law. The extent to which it makes a change to the law is a matter of some concern to us, particularly that any such change will occur if the burden of proof changes.
 
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Certainly the advice I have received suggests that this clause will change the burden of proof by establishing an additional hurdle or test of "desirable activity". I beg to move.

2.45 pm

The Earl of Erroll: I do not know whether this is sensible; it is for the lawyers to decide. Subsection (2) of this proposed new clause worries me. Listening to the lawyers, I think they have managed to obfuscate something which is not that difficult. The person on the Clapham omnibus would probably understand pretty well what Part 1 is trying to say. We seem to be going around the houses.

It worries me that, given our adversarial system, if the defendant is not well off and is up against claims lawyers on the other side working on a no-win-no-fee basis, he may well be trying to defend himself. If he is attacked by a good, heavyweight lawyer, I am afraid to say that most of the time he is going to lose. He will be tied up in the kind of knots I have just heard being woven in a Gordian way by people who would probably rather see Clause 1 disappear. I do not think that subsection (2) is a good idea at all. The courts should be able to decide easily whether an activity was for the purpose of public benefit without the poor, non-qualified defendant having to do so when facing what possibly is a QC.

Baroness Ashton of Upholland: The basis on which the noble Lord has so helpfully set out the purpose of his amendment is essentially where he and I part company. I do not believe that Clause 1 imposes any formal or unnecessary procedures. We seek simply to identify a factor which the courts can already take into account without requiring formal evidence. The basis on which the courts operate works satisfactorily in terms of considering the burden of proof. I agree with the noble Lord, Lord Goodhart, that this amendment could well create difficulties in terms of satellite litigation. Moreover, we do not think that Clause 1 as set out will lead to requests for pre-action disclosure, but we think that that could become a problem if the amendment were accepted.

We have already debated "public benefit" and I shall not reiterate what has been said, save that we are concerned about the risk that certain categories of case might be missed where the approach of Clause 1 has been taken. It could, for example, lose some Scout or Girl Guide activities, or certain commercial and private activities of the kind we have discussed at length. It is my proposition that if the courts are currently flexible enough to weigh up all the evidence and take all the circumstances into account on a case-by-case basis, we would not want to see this form of procedure introduced. Clause 1 as drafted does not introduce an additional hurdle; we are merely identifying a factor, and doing so in a way which recognises that the courts can already take it into account.
 
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I do not accept the proposal put forward by the noble Lord, and certainly I would not want to do what he fears; that is, to create hurdles. On that basis, I hope that he will feel able to withdraw the amendment.


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