Compensation Bill [HL]

We are reaching an important part of the discussion on the Bill. I am still confused by one or two of the Minister’s comments, so I shall press her a little more. She clearly said that this clause does not amend the law. I have to reveal to her that the courts will believe that we are amending the law. They do not believe that—if I may put it like this—a selection of noble Lords with some of the finest brains in the country would spend their time seeking to pass a clause that did nothing at, and that did not amend the law one jot or iota. We have to clarify this: either the clause amends the law, or it does not amend the law. If it does not amend the law, what is the point of it? Courts will take the view that we do not sit around passing laws that have nil effect—that do nothing at all. Therefore, we need to clarify the matter a little further. I want to press the Minister on the balancing part of the see-saw. If you have a see-saw that is unbalanced and you seek to balance it, you are actually doing something. If it is unbalanced, it is because there is a feeling on the part of the Minister that the law is slightly unbalanced, otherwise there would be no need for the legislation. The answer may lie in a further comment made by the Minister. Having made the clear, categorical statement that the clause did not amend the law, she later said that the clause did not amend the law in a way that would be detrimental. So it amends the law to improve it—or am I wrong? It falls to the Minister to justify Clause 1. Before she leaps to her feet, I want to add that I agree with the noble Lord, Lord Goodhart, that there is some concern outside the Committee that we are enacting something that will make the situation more complicated and difficult, so why have it at all? Either we have it because it improves the law, or we do not have it, because what is the point of enacting Clause 1 if it does not amend the law at all? I shall go slightly further. Noble Lords will be aware of the interest that I disclose from time to time—that I have been 40 years a partner in the same firm of solicitors; I am celebrating my 40th year this year. I started life as solicitor to the Transport and General Workers’ Union. I spent considerable time benefiting from the activities of the union in passing me cases, and learnt a great deal about the selective way in which the union would support cases. It would not support just any case. The case had to have a better than 50 per cent chance of success; I am talking historically. I grew to admire the way in which the union would stand up to vexatious and rather pointless claims and refuse to give them support. I have been concerned in recent times that the advent of conditional fee agreements has increased substantially the number of vexatious claims brought, which occupy a tremendous amount of activity on the part of defendants in the public and private sectors, insurers, and various other bodies including, of course, trade unions. Sadly, our civil litigation system is still too confrontational. Any foray into that world will be viewed with some suspicion on the part of my former colleagues in the trade unions and other bodies that it is weighting the see-saw in the direction of the defendant, and a serious concern on the part of public bodies and insurers that it is weighting the see-saw in another direction. I am sure that everyone wants certainty. I want to give two examples in pressing the Minister further on the matter. There is a fear on the part of a large number of people who have made contact with me that the Bill is erecting another hurdle. If you wish to bring a claim, added to the existing law you now have what will become Section 1 of the Compensation Act. A number of people—for instance, in local authorities—view that as an additional hurdle that their employees will have to surmount. I shall come back a little later to more specific examples. What will the hurdle do? It will mean that teachers who organise a school trip will be drawn into Clause 1 if they are injured on it and have a claim. The Minister is looking at ways in which we can make school trips and adventure trips easier to organise with less risk. But if the school teachers who organise the trips will be seriously concerned about their personal positions, it is surely better to do nothing at all, as was said by the noble Lord, Lord Goodhart. What is the point of allowing more school trips if there will be fewer teachers? There may well become a two-tier system of employment—employment in industries that are desirable activities, and employment in industries that are not desirable activities. I will deal later with what a desirable activity is, because there is no definition of it. No doubt the Minister will say that it is a matter for the courts, but that would take us back to the point made by the noble Earl, Lord Erroll—I agree with him and the noble Lord, Lord Chorley—about who is to know what the law is and what statutory duties are being dealt with. When you are organising something, do you have to know whether your statutory duty will apply this test of negligence, or another test of negligence that has been applied in previous cases on the same statutory duty? We may well have to return to the issue at a later stage to see whether we can draw up a list. It is possible to draw up a list of the statutory duties that we are talking about, and find some wording that would exclude the ones where this sort of test should not apply and include the ones where it should. If we do not, there is a risk that we will have two tests of negligence—the test that falls in cases that do not involve breaches of statutory duty, and the test that concerns breaches of statutory duty. The public sector in particular is very worried about what Clause 1 does. I shall come back to my main question at this stage, which the Minister has not really made clear. Does the clause amend the law? Is she right to say that it does not?