Compensation Bill [HL]

moved Amendment No. 2:"Page 1, line 4, leave out ““may”” and insert ““shall””" The noble Lord said: Amendment No. 2 would leave out ““may”” and insert ““shall””. The noble Lord, Lord Greenway, has added his name to the amendment, but he is sadly unable to be present. He has asked me to convey his apologies to the Committee. This is an attempt therefore to move the power of the court from a discretionary power to a mandatory power. I understand that Ministers may indeed be reluctant to fetter the discretion of the court, but the discretion remains in the overall provisions of Clause 1, which enable the court to consider all the circumstances of the case. Of course the law should continue to develop, but what is needed is a clear statement to judges and to the public. There should be some readily understood clarity on what this clause seeks to do. What is wrong therefore with the clause telling everyone that this will be considered, particularly if it does not amend the law? In a way, the Minister has given me my strongest argument for this amendment in saying that it does not amend the law. Well, if it does not amend the law, what is the objection to making it mandatory? There is an obvious parallel with the new provisions on periodical damages or periodical payments. The court is directed by the legislation to consider what remedy to apply, but retains the discretion, subject to guidelines, to decide on the application to an individual case. What is really needed here is greater clarity and certainty. I echoed in the last debate that the last thing we should ever do is enact legislation that makes the situation less clear and less certain. I envisage—unless the Minister is willing to respond to a number of the points that have already been made—that we are going to get endless satellite litigation on whether the judge should exercise the discretion, let alone how the discretion is to be exercised. I return to the Arculus report from the Better Regulation Task Force entitled Better Routes to Redress, which noble Lords will recall was published in May 2004. It put forward this view:"““an exaggerated fear of litigation, regardless of fault can be debilitating. The fear of litigation can make organisations over cautious in their behaviour. Local communities and local authorities unnecessarily cancel events and ban activities which until recently would have been considered routine. Businesses may be in danger of becoming less innovative—and without innovation there will be no progress””." Those words underpin the strength of the case for making this legislation more certain as to its impact and therefore moving from discretionary to mandatory, and that is why I wish to move the amendment. I beg to move.