Compensation Bill [HL]

An aide mémoire is an interesting description. I am trying to say that the purpose of Clause 1 is to deal with an erroneous perception of the law by clarifying the issue. That is what it seeks to do. In changing ““may”” to ““shall””, it is not about a failure of the courts to recognise that there are many cases in which this might be relevant, but that there are many cases where it is not. If an accountant is in some way or form sued for negligence, should the courts have to take into account desirable activity in that context? Perhaps not, and I suspect they would not in most cases. If you say ““shall””, the courts have to take it into account. That might feel like a two-minute dismissal, but we have required them to do it. We are not about saying to the courts that we are going to make Clause 1 affect behaviour in a way that would be inappropriate. In using ““may””, we have said that where the courts in looking at the issues clearly believe that the desirable activity context is relevant—we will discuss the phraseology later—they may take it into account. But we are not saying, ““In a case of any kind on this particular subject, whether it relates to an accountant or a lawyer, or to an activity with the Girl Guides or a school trip, you must take it into account””. It would be inappropriate for us to do that, and I do not believe that we should do it. Of course the courts take into account the House of Lords decision, but that is different from saying that in every single case they must take into account the one factor from Tomlinson. They would look at the Tomlinson judgment in the round. That is my understanding, and I approach the matter as a non-lawyer. However, it seems to be common sense for us to be saying to the courts, ““You may take it into account, but we recognise that we are dealing with cases of negligence and they cover a vast range of things””. That is why it is ““may”” not ““shall””.