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Lord Hunt of Wirral: My Lords, I am grateful to those noble Lords who have participated in the debate on this amendment. I have come across the argument before that where one is venturing into amending previous statutes one should have a wider review. However, the Government have already taken action in the Criminal Justice Act 2003 in seeking to right a wrong. Unfortunately, it did not go far enough. This amendment would go a little further to ensure cases such as those reported—of which I am aware but the Minister does not appear to be—where a potential burglar has recovered damages after falling through a plate glass window, for example, when they had no right to be near that window at the time.

I have taken advice and understand that a number of claims for damages have been put forward by burglars or potential burglars and those who have entered land with felonious or misdemeanour intent. Sadly, the facts of life are that those claims are being settled and paid. Often, they are nuisance claims. They are pretty frivolous and make society reasonably angry, but as the law stands they are perfectly valid claims. Therefore, there is a lacuna there which has been met in part by the Criminal Justice Act 2003. I agree with the noble Earl, Lord Erroll, and with the noble Lord, Lord Monson, that this provision has attractions because it rights what is perceived to be a wrong. This was never in our minds when I was Minister with responsibility for coal at the time of the miners' strike when the Occupiers' Liability Bill went through Parliament. My colleagues in the department did not envisage that they would be allowing people with criminal intent to recover damages.

I hope that the Minister will accept that I am moving this amendment with the best of intentions. I am seeking to right a wrong and I hope that the House will accept the amendment. Equally, if there is a better way of addressing this lacuna I remain open to suggestions, but we have thought very carefully since Grand Committee. I have taken advice from a range of experts and we believe that this is the right way forward. Therefore, I wish to test the opinion of the House.

5.08 pm

On Question, Whether the said amendment (No. 5) shall be agreed to?
7 Mar 2006 : Column 673

Their Lordships divided: Contents, 109; Not-Contents, 147.

Division No. 3


Allenby of Megiddo, V.
Ampthill, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Blackwell, L.
Bledisloe, V.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Cavendish of Furness, L.
Chorley, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crickhowell, L.
Darcy de Knayth, B.
De Mauley, L.
Dean of Harptree, L.
Dearing, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Erroll, E.
Flather, B.
Fookes, B.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Hamilton of Epsom, L.
Hanham, B.
Hannay of Chiswick, L.
Hanningfield, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Jopling, L.
Knight of Collingtree, B.
Lindsay, E.
Listowel, E.
Lucas, L.
Luke, L.
Lyell, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mar, C.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Naseby, L.
Nickson, L.
Noakes, B.
Norton of Louth, L.
O'Cathain, B.
Park of Monmouth, B.
Pearson of Rannoch, L.
Rawlings, B.
Rees, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharples, B.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Tebbit, L.
Tenby, V.
Trumpington, B.
Vinson, L.
Waddington, L.
Wakeham, L.
Walpole, L.
Walton of Detchant, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bilston, L.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Nicol, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rosser, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Slim, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

7 Mar 2006 : Column 674
5.18 pm

Lord Hunt of Wirral moved Amendment No. 6:

Section 1 does not apply to claims by an employee against an employer arising out of the course of his employment."

7 Mar 2006 : Column 675

The noble Lord said: My Lords, I have already said that we on this side of the House support the broad concept of Clause 1, and I believe that it sends a welcome message to the courts and to society. However, there is one area of detail in Clause 1 which we are concerned will have undesirable consequences. By introducing amendments to extend the scope of Clause 1 to breach of statutory duty, the Government have given the clause its teeth, but they have also opened the door to the potential effect on most areas of employers' liability, when claims almost always involve the breach of a duty imposed either by statute or by statutory instrument.

The law in this area is complex and has been led, in the past 15 years, by a broad impetus on workplace health and safety from Europe. The Government—and, indeed, their predecessors—have been keen to focus activity on improved health and safety in the workplace. As I have the honour to be president of the All-Party Group on Occupational Safety and Health, I am certainly fully supportive of such initiatives.

Most injuries in the workplace are avoidable, and I am sure that all noble Lords would agree that we must do everything we can to reduce the incidence of employees being injured at work. The risk created by Clause 1, in the workplace context, is that we may be in real danger of creating a two-tier standard of health and safety. If the "desirable activity" test applies in employers' liability claims, we will in effect be saying that, where an employee has been injured—because of breach of statutory duty by the employer—the nature of the activity in which the employer is engaged may make a difference to the outcome. I know that local authorities and other public sector employers are concerned about that. They certainly do not want to be regarded as second-class employers, particularly in the field of health and safety. Those concerns are, understandably and rightly, mirrored by those of the TUC on behalf of employees.

If Clause 1 is all about creating a more civilised society, any watering down of the rights of employees—even at a theoretical level—would be directly contrary to that message. On that basis, I beg to move.

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