Compensation Bill [HL]

I know the noble Lord, Lord Goodhart, would rather not have Clause 1 because he has made that clear. I shall go over the ground again in a slightly different way. Earlier I mentioned what the Better Regulation Task Force said—and when people believe that there is something wrong with the law, there is a perception that has an impact on behaviour. We have focused particularly on the behaviour of organisations that deal with adventure and risk because we all feel very strongly that those are hugely important in our society and particularly, although not exclusively, to our young people. Those are not the only circumstances. If one looks at the compensation culture, the Committee will know that there are many organisations right across a variety of sectors that feel very strongly that they want us to deal with this in a variety of different ways. There is no exclusive view on that. The noble Lord is absolutely right that, in trying to deal with that erroneous perception, I am not seeking to fetter the way in which the courts operate. Instead, we are trying to ensure that we deal with that perception in Clause 1, and send a clear signal—““declaratory”” is a word that I used at the very beginning of the debate—that we do not fetter the courts in looking at the activities so that the way in which the law operates and develops can continue. We do not want to ensure that the common law cannot develop in the normal way. Understandably, lawyers have said that to us from the very beginning. That is the balance I am seeking to strike. Therefore, we believe that choosing a phrase that encapsulates, in our view, the variety of different circumstances of which I have given examples that the Committee can consider, will enable us to put the statement in Clause 1 without fettering the discretion of the courts. That is what I am seeking to do. The noble Lord may say that we can take the clause out at the next stage in the passage of the Bill through your Lordships’ House, but Members in another place will put a different clause in. It is important that we recognise that one of the jobs of government is to talk with all parties to try to come up with something that recognises the absolutely justifiable positions of the different parties involved. Whether noble Lords like it or not, that is what we have sought to do and that is where this phraseology comes from. I do not accept Amendment No. 13 for the reason mentioned by other Members of the Committee: I do not believe that a list works. It also reinforces the point that it is a technical legal term with a particular history, which would not be helpful. We have come up with ““desirable activity””; if noble Lords can come up with a phrase that they like better that does the job, I am open to suggestions, but I do not believe that the one proposed here does so, for the reasons that I have given. I hope that noble Lords will consider the examples that I have given and that we can continue to discuss the matter both inside and outside your Lordships’ House.