Compensation Bill [HL]

I am always interested in ““may”” to ““shall”” debates, because in my ministerial experience they are always good at bringing out some of the critically important underlying factors about how we approach a particular piece of legislation. Noble Lords will notice that ““may””/““shall”” debates are peppered through the Bill—and I may even be helpful later on about some of those. The noble Lord, Lord Hunt, rightly referred us back to the Better Regulation Task Force report. It struck me that it might be worth reading out something else from that report, which supports what the noble Earl was just saying. The report says:"““It is this perception””—" that large sums of money are easily accessible—"““that causes the real problem: the fear of litigation impacts on behaviour and imposes burdens on organisations trying to handle claims. The judicial process is very good at sorting the wheat from the chaff, but all claims must still be assessed in the early stages. Redress for a genuine claimant is hampered by the spurious claims arising from the perception of a compensation culture. The compensation culture is a myth; but the cost of this belief is very real””." In a sense, that is the essence of what we have sought to do in putting Clause 1 into the Bill. The reason why we said ““may”” rather than ““shall”” is that when a court looks at a negligence claim it takes into account all the circumstances of an individual case; those circumstances, of course, vary dramatically from one case to another, as all those who are members of the legal profession will know far better than I. It would not be appropriate to require the courts to take the factor in Clause 1 into account in all cases, which would be the effect of changing ““may”” to ““shall””. In some cases, it will just not be relevant, so by making that change we would be trying to make the courts do something that in the normal course of their activities we would not expect them to do—which is, to take into account factors that have no relevance at all. So we have said that they may take them into account, but we are not requiring them to, because of the range and variety of cases. I am nervous, too, that we do not stray into saying that some factors are more important than other factors. In the range of circumstances in which a particular case reaches the court, there will be a variety of different factors that courts need to weigh up and need to reach a conclusion about which factors carry which level of weight. That is what courts do, and do very successfully; we do not want to hamper their ability to put the appropriate weight, which may be a consequence of changing ““may”” to ““shall””. That may seem like a huge consequence from a small change of word, but it is generally the case that when you have a statute whereby the courts may take something into account, the courts are very mindful that that exists. So I am not particularly concerned that the courts might ignore that—in fact, I am certain that they would not—when it was relevant. We know that it is a factor in the way we approach these matter, but I do not want to turn it into a ““shall”” and say that it is a requirement when it would not be relevant in all cases. That is why I am not going to accept the amendment and why I hope the noble Lord will withdraw it.