Compensation Bill [HL]

I begin by thanking the noble Lord, Lord Hunt, for his kind words at the beginning of the debate and for setting out, far more eloquently than I could, much of the background to the debate, which I will not repeat. However, I want to add a couple of comments to the noble Lord’s explanation of how we arrived at this Bill, and to do so by paying tribute to Mr Brazier, Lembit Opik and Derek Wyatt in particular, who have worked closely with us and been extremely helpful in drawing up an effective Bill to present to your Lordships’ House and another place. I have described what we are trying to do in Clause 1 as the balancing part of a see-saw. Members of the Committee spoke very eloquently from their own perspectives on the relevance or otherwise of what we have done in Clause 1. I recognise that those noble Lords and Members of another place who have worked very closely with us in the All-Party Group in considering adventures and other aspects of recreational activity are concerned about good cause—about the effect that the so-called ““compensation culture”” has on the ability to recruit volunteers to ensure that activities go ahead. While I acknowledge what the noble Earl, Lord Erroll, said—we do not have evidence that school trips are being cancelled, when I met the All-Party Group I realised that I did not know how many never get off the starting block because people say that they will not take part in them. I think the noble Earl was present on that occasion. Powerful evidence in that regard was put before me at that meeting of the All-Party Group, which I have been mindful of ever since. Talking to other organisations, it is clear that people do not undertake the activity—it is not therefore cancelling; it is not happening. We were mindful of looking at how you can make provision in statute that helps people recognise that is an important aspect of our life in society. We want to ensure that people understand that they can participate and to encourage and support people who are offering those activities. I declare my interests as an ambassador for the Girl Guides in Hertfordshire. I recognise how important it is to be able to recruit volunteers and to ensure that activities take place. Members of the Committee will appreciate that much of what we are doing around that does not take place in this Bill. A raft of activities is lead by a ministerial group, which I chair, involving nine government departments. All of them, from their different perspectives, are looking to address these issues, but one question is the way in which we support, through Home Office initiatives and through work in the DCMS and the Department for Education, activities for young people in particular. Therefore, part of our objective is to make provisions which clarify but do not affect the law. Let me come to the equal and opposite view, which the noble Lord, Lord Goodhart, expressed to me clearly on a number of occasions, that it is unnecessary. The courts, particularly in the Tomlinson verdict but in other ways, deal with that effectively. There was in the beginning a concern that when we talked about doing anything around Clause 1 we might prevent the common law from developing as effectively as it might. At this point, it will become blindingly obvious to Members of the Committee that I am not a lawyer. However, partly because I am not a lawyer, I was careful in discussions and in seeking advice to be sure that we were not amending the law, as the noble Lord, Lord Hunt, suggested. We are not amending the law; using the Tomlinson judgment to a degree but not exclusively, we are trying to bring together something that says, ““This is the state of the law””. In the way that courts look at these issues, they may—I know that ““may”” is an important word—take into account the activity and desirability thereof. That in a sense attempts to address the question that exists among many organisations which are worried. The noble Lord, Hunt, said that he was not convinced that the courts take this as seriously as they might and the noble Lord, Lord Goodhart, said that perhaps that was so before Tomlinson but not since. There is a strength of feeling that that should not be under-estimated in either direction but especially in saying that we need to do something. We believe that what we have done does not amend the law or change it in a way that would not be detrimental to its development over time. However, it accepts that we need to say something—declaratory, if Members of the Committee like that word—and we are trying to do that. I talked about the see-saw and the balance and I say to the noble Earl that there is no attempt on my part to be secret. In fact, I am regarded as leaning towards the other direction. I am mindful that when you start discussing wording with people, everyone has a slightly different version. From where I sit, it is incredibly difficult to try to deal with that. I tried to be as clear as I could with everyone—I have spoken to many individuals and organisations—about what we are seeking to do. At the conference on 17 November, I had many conversations along the lines, ““I know that it is not as much as you want, but the trouble is that where you want to go we cannot go because we then enter into a difficulty””. That relates to what the noble Lord, Lord Lucas, said, about people taking responsibility for their actions. That is true to a point, but if you do not know what those activities and actions might involve, it is difficult. I can say as a mother that when my children go on their many trips, I expect a responsibility from the adults who take them. That responsibility is about understanding the nature of the activity, the nature of the age group of the children involved, and what they need to be able to do. It does not mean that if my child behaves in a reckless or foolish manner, they should have to deal with that. However, it begs the question whether, if we move any further, we prevent people from taking the responsibility they should have as leaders. That balance is involved and ultimately the courts have to be able to look at it. I take the point about what the noble Lord was trying to do. I also take the point raised by the noble Lord about those on the receiving end being sued and being given all possible support. Clause 1 seeks to say that we are clear about what the courts may take into account. The other issues alongside that are about the training, guidance and support that people receive. The noble Earl mentioned the 108 pages of questions to be answered, which is ludicrous, is it not? People make very simple, straightforward risk assessments. When I chaired a governing body, I did them all the time. My local authority is very good at saying, ““I want you to think about these things. Have you hired a reputable coach company? Do they have seatbelts for children? Have you visited the place where they are to spend a week? Have you seen the facilities?””. There are very clear ways in which one can assess risk, depending on the activity. With the government departments in the ministerial steering group, we are considering how to ensure that people get good guidance and the best possible training. We feel that we are giving them support to enable them to offer young people, in particular—but not exclusively—as much as we possibly can. From my point of view, that is the backdrop. I did not really think that Clause 1 would find favour anywhere except with us, because it has to do two quite difficult things at once. I recognise that this is an important issue for many organisations. I do not wish to amend the law, but I want the courts to function effectively, and that means, on one hand, that it is bland for some people and, on the other hand, that it goes too far for others. I think this is the best I can possibly do. I am very willing to discuss the phraseology, and so on, but I hope that the Committee will accept the principle behind what I am trying to do. I cannot move much in any direction, otherwise I shall be into the equal and opposite problem of losing any potential of persuading those who have put the equal and opposite views to come with me. I looked very carefully at statutory duty. The noble Lord, Lord Hunt, knows better than I do—I sit at his feet on many of these matters—that statutory duty covers a massive number of different things. The difficulty is that none of us wishes the courts to take into account these issues on all statutory duties. The statutory duty in the Children Act, particularly for the register, is not relevant in this context. There are many pieces of legislation in which statutory duty is covered—I shall not quote them as many noble Lords were probably involved in putting them together and so I could look extremely foolish very quickly. It is an ongoing and growing part of the way in which we ensure that people carry things out effectively. I cannot add it in because I believe that it would do the one thing that I am keen not to do, which is to cause confusion. In this clause I have tried to make it as clear as possible precisely what we are after and I do not think it is appropriate to put it in as a generality. That leads me to the next question which is what do we do? Could we make it more specific? I cannot find a way of doing that, short of listing every conceivable statutory duty that might be applicable—I am not a list person as noble Lords who have worked with me on any Bill before will know, because the danger of a list is what one leaves out as much as what one puts it. I find that quite difficult to do. We are not codifying the decision of the House of Lords in Tomlinson. The noble Lord is absolutely right that it concerned statutory duty. From looking at the case and from talking to my own legal advisers, I understand that the House of Lords was drawing on a line of claims concerning negligence because of the similarities and because of the way in which those principles could be applied across to statutory duty. We have drawn on the principles from that line of negligence cases for Clause 1. We were not actually addressing the statutory duty principle, but we were looking at the issues of negligence that where used in Tomlinson, when considering how to draw up Clause 1. The noble Lord, Lord Hunt of Wirral, is right to say that I have talked about Tomlinson endlessly because it was the case from which this stems, if it stems from any part of the law. In this clause we are trying to deal with the principles of negligence that it drew on. Many people involved in the legal profession have said to me that they do not like Clause 1 because they think it is irrelevant, but it is true that the courts can read across the principles in negligence cases to cases that concern breaches of statutory duty, as they did in Tomlinson, whenever that is relevant or helpful. What we have done in Clause 1 has enabled them to continue to do that. In essence, my difficulty with the amendment is, first, that I cannot find a way of defining ““statutory duty”” narrowly enough so that it does not capture so many things which are not relevant and which would cause confusion. Secondly, the courts can read across, as they do now. We are capturing the principles of negligence used by the House of Lords, not trying to codify statutory duty principles within Tomlinson. I am sure we shall discuss this many times, but on that basis I hope that the noble Lord feels able to withdraw his amendment.