Compensation Bill [HL]

moved Amendment No. 1:"Page 1, line 4, after ““negligence”” insert ““or breach of statutory duty””" The noble Lord said: In dealing with Amendment No. 1, it may be helpful if I indicate that the procedure will not follow the grouping as published, but will follow that which has been agreed, which is to take Amendment No. 1 on its own. It may be for the convenience of the Committee if I indicate that under this amendment, which is a fundamental one, we shall deal with the purpose of the Bill, and cover where we have been, where we are and where we are intending to go. Then we shall move on to the subsequent amendments. It may also be for the convenience of the Committee if I indicate that Amendment No. 3, following debate on Amendment No. 2, will be taken—subject to the approval of the Deputy Chairman and the Committee—with Amendment No. 13. Amendments Nos. 4, 5, 6 and 7 will be taken as a separate group, followed by debates on Amendments Nos. 8 and 9. There will then be a debate on Amendment No. 10, which will be taken with Amendments Nos. 18 and 24. There will be debates on Amendments Nos. 11 and 12 separately before we move to Clause 1 stand part, if the Committee decides that such a debate is necessary. Before we turn to the history of this clause and the reason for the amendment, I pay tribute to the Minister, the noble Baroness, Lady Ashton, whose attitude to this proposed legislation has been exemplary. At all stages she has opened out the debate not only to those of us on the Opposition Front Benches but to Back Benchers on all sides and, even more importantly, to a range of organisations and bodies outside the Chamber. The Bill is not really a party political issue but it does come with quite a considerable background, and it is vitally important that we get it right. First I shall deal with what some have described as the instigation of the Bill—namely, the Promotion of Volunteering Bill, which was brought forward in the other place by Mr Julian Brazier and was printed on 7 January 2004, supported by such varying individuals as Mr Chris Smith, Mrs Gwyneth Dunwoody, Mr Iain Duncan Smith, Tim Boswell, Ian Taylor and others. That Bill sought to make provision for volunteering and voluntary organisations. I need not refer to it in detail, but it was to some extent a symptom of what was a creeping problem, which was dealt with in the report that was published by the Better Regulation Task Force in May 2004, entitled Better Routes to Redress. That report sought to deal with what was perceived to be a compensation culture, and concluded:"““Media reports and claims management companies encourage people to ‘have a go’ by creating a perception, quite inaccurately, that large sums of money are easily accessible””." The report continued:"““What is not right is that some people should be led to believe that they can absolve themselves from any personal responsibility for their actions and then expect someone else to pick up the pieces when something goes wrong, regardless of whose fault it was””." Following the publication of that report, the Secretary of State for Constitutional Affairs and Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton, heralded this legislation. In dealing with what the Arculus report had identified as the perception of a compensation culture, he said:"““Some call this a compensation culture. Some call it a claims culture. Others call it the ‘have a go’ culture.""How we describe it matters little. It is the effect we should be concerned with. It creates a fear of litigation; can make organisations risk averse; cause local authorities to cancel events; doctors to practise defensive medicine; it creates burdens for those handling claims. And, critically, it undermines genuine claims””." I believe that when the noble and learned Lord the Lord Chancellor said that, it struck a chord with a range of organisations. He made it clear that he was opposed to anything that promotes the idea that where there is an accident there is always compensation. Noble Lords may recall that at the time there was a surfeit of advertising that heralded this culture which went along the lines of ““Where there’s blame, there’s a claim, and it won’t cost you a penny””. That encouraged people to start the process of making a claim, seemingly without risk. As a result, the compensation culture was born. Steps have been taken to try to regularise that situation, but it arose against the background of the conditional fees structure. Following the virtual abolition of civil legal aid, it became possible for those who wished to encourage people to bring a claim to do so on a ““no win, no fee”” basis. Although that appeared to cost the potential claimant nothing at all, it cost everyone dearly, including the claimant who often saw a substantial deduction from the damages that he had been led to believe he would receive. So it was that the Prime Minister stepped into the argument. In a very important speech heralding this legislation, ““Commonsense culture not compensation culture””, in dealing with Clause 1, the Prime Minister said:"““The Bill will also clarify the existing common law on negligence to make clear that there is no liability in negligence for untoward incidents that could not be avoided by taking reasonable care or exercising reasonable skill. Simple guidelines should be issued. Compliance should avoid legal action. This will send a strong signal and it will also reduce risk-averse behaviour by providing reassurance to those who may be concerned about possible litigation, such as volunteers, teachers and local authorities””." That heralded the Bill and, in particular, Clause 1. The noble and learned Lord the Lord Chancellor re-entered the fray last month, on 17 November, because, at that time, many reservations had been expressed about Clause 1. The noble and learned Lord said:"““I know that some of you here have expressed concerns about the negligence provision in the Compensation Bill. However, this provision means that as long as individuals and organisations adopt reasonable standards and procedures for their activities, they will not be found liable. The Bill will help to provide reassurance about how the law in this country works. But people also need to know what reasonable standards and procedures are. Risk-averse behaviour does not just stem from a fear of litigation. It can arise from people simply not understanding what they should do in terms of risk management””." So our expectations were aroused as we awaited the publication of the Bill. We now have before us Clause 1. Why this amendment? The amendment reminds us that there are two separate tests involving negligence: common law negligence and breaches of statutory duty. There is a view, on which I would be very interested to hear the Minister’s view, that without any reference to breach of statutory duty, the present provisions of Clause 1 are utterly pointless. I have been unable to devise a type of personal injury claim, apart from road accidents, that involve a claim of negligence that does not also involve a claim of breach of statutory duty. Thus an amendment just to the law of negligence will have no effect whatever. There is a more legalistic point about the absence of any reference to breach of statutory duty. The current court approach is that whatever a Minister may say in Parliament, the court will start by trying to interpret the statute as it stands. Only if the statute is unclear will the judge resort to other sources such as the statements made in Parliament. On the issue of negligence versus breach of statutory duty, the statute is arguably clear because at the moment it makes no reference to statutory duty at all. That is why I have tabled this amendment. I have been greatly assisted by reading through the judgment in Tomlinson v Congleton Borough Council, which has been cited by a number of government Ministers as the judgment that they wish to implement into statute. That decision deals with a breach of statutory duty. It does not deal with negligence alone. It is a very significant case. Perhaps I can occupy the time of the Committee by reminding Members why Tomlinson occurred. A young man, John Tomlinson, aged 18, decided to meet with friends and go to a country park in Cheshire. One of the attractions of the park for John Tomlinson and his young friends was a 14-acre lake which had been created by flooding the old sand quarry. There were some attractive beaches and in hot weather many people, including families with children, would play in the sand, sunbath and paddle in the water. At the far end of the lake, there was a beach where, in fine weather, groups of teenagers would hang out and John Tomlinson had been going there since he was a child. After sitting in the sun for several hours, he decided to cool off. He ran into the water and dived. He had done that many times before, but on this occasion his dive was badly executed and he struck his head on the sandy bottom so hard that he broke his neck. He is now at tetraplegic and unable to walk. He and his solicitors brought the claim under the Occupiers Liability Act, and there are a number of very important judgments. But, in effect, the Judicial Committee decided against Mr Tomlinson and in favour of Congleton Borough Council. It was a groundbreaking decision. One noble and learned Lord said:"““Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone””." It struck a chord. There was a great deal in the press about it, and there we are. That is an important decision. The Government wish to implement it, but it was a decision founded on breach of statutory duty. I hope that I have explained why it is very important in Clause 1—we will deal with aspects of it later—to establish why it does not deal with breach of statutory duty. There are a number of other aspects which I would like to deal with in later debates, but that is essentially the question which I hope that the Minister will be able to answer. I beg to move.