Compensation Bill [HL]

moved Amendment No. 15:"After Clause 1, insert the following new clause—" ““INTERPRETATION OF CLAIM IN PART 1    For the purposes of this Part, ““claim”” shall mean a claim for damages for personal injury or death but shall not include a claim— (a)   in respect of, or consequent upon, personal injury arising out of, or in connection with, breach of a duty of care owed to any person in connection with the diagnosis of illness, or the care or treatment of any patient; and (b)   in consequence of any act or omission by a health care professional, and ““claimant”” shall be construed accordingly.”” The noble Lord said: The amendment is an attempt to clarify whether the purpose of Clause 1 is restricted to personal injury claims. Subsections (a) and (b) are taken from the definition of clinical negligence claims in the NHS Redress Bill and are designed to exclude clinical negligence claims from the definition. Before going any further, I should just like to say how grateful I am to all concerned for producing the agreed list of groupings, and I am only sorry that it was a somewhat laborious process for all concerned last Thursday—although, as Members of the Committee will know, I shall contend under Amendment No. 20 that saying sorry should never amount to an admission of negligence. We continue this debate on Clause 1 against a number of noises off-stage. A report has been published by the All-Party Group on Insurance and Financial Services, entitled Report of an Enquiry into the Compensation Bill and the Compensation Culture. In that report, the all-party group says of Clause 1:"““There is a very serious danger of expensive and time-consuming litigation being launched to clarify the purpose of the Bill if Part 1 of the Bill stands as proposed.""On balance, while there are ways of strengthening Part 1, the APPGIFS believes it serves little useful purpose: it should be dropped””." As Members of the Committee will recognise, after our first sitting, that is not the view of the Committee as we seek to improve the wording, and we shall still continue in that attempt. The other noise off-stage comes from the Constitutional Affairs Committee, which announced yesterday that it will hold a further three evidence sessions in the new year in its inquiry into compensation culture. The committee has given details of those evidence sessions, which will end in a climax—if I may put it that way—on Tuesday 31 January, in that the noble Baroness, Lady Ashton of Upholland and Jane Kennedy MP will give evidence. That is the backdrop; but this is also a good moment to remind ourselves that the Minister made an important statement in the last sitting. The Minister said—and the Committee very much welcomed it—that she would consult the Law Commission. It was the sort of statement that many Ministers would have been fearful of making in the anticipation that their civil servants would say to them afterwards, ““That was a very courageous decision, Minister””. But we believe that it was the right decision, because the whole purpose of this debate on Clause 1 is to get the legislation in a form whereby it can become an Act of Parliament and set out the way in which we will see the law interpreted. Of course, that is very apposite to Amendment No. 15. The Minister has always made it clear that she does not wish the law of unintended consequences to prevail. My contention in this amendment is that if the Bill is intended to cover personal injury claims only, it should say so. If it is not intended to be so narrow, what is it intended for? This amendment probes whether the Bill is to apply to clinical negligence claims where the defendant’s activity may well be considered desirable and I ask the Minister whether the Bill is to apply in other professional negligence claims. For example, is it desirable for a personal injury lawyer to bring a meritorious claim, but not a spurious one? What about professional indemnity generally? That lengthy list would include products, planning, endowments and financial advice, as well as a topic that is very interesting to the Committee; namely, trees. We have debated at length whether climbing trees is a desirable activity, whether conker trees should be allowed to let their product fall on the heads of unsuspecting citizens, who may or may not have helmets, and whether youngsters should be allowed to play conkers without goggles. The Minister was very explicit and told us about how apples had been stolen by her friends from her orchard. In many ways, we simply have to consider the meaning of ““desirable activity””. At Second Reading, the Minister said,"““the provision potentially does extend to all claims in negligence—as indeed does the current approach of the courts, which this reflects. The courts have considered it relevant in the context of professional negligence only in limited circumstances. We think nothing in the clause requires it to be taken into account more widely than it currently is. Therefore, in a sense, we are staying with the status quo””.—[Official Report, 28/11/05; col. 96.]" The Minister has been very consistent on that. But my question relates to the speech on the compensation culture made by the Prime Minister on 26 May. He said:"““The Bill will also clarify the existing common law on negligence to make clear that there is no liability in negligence for untoward incidents that could not be avoided by taking reasonable care or exercising reasonable skill””." He then added:"““Simple guidelines should be issued””." I hope that the Minister will give us a little more information about what the Prime Minister had in mind: the sort of guidelines and the status that they will have. The Prime Minister continued:"““Compliance should avoid legal action.””" In what way are these guidelines going to have such statutory effect? To avoid legal action, they will have to affect the existing law. If they are to provide an adequate defence, what are they, who is drawing them up and when will this Committee see them? The question of referring to Clause 1 in this vague sense will be assisted by the Minister’s undertaking to consult the Law Commission. She graciously accepted that idea, which I put to her on the advice on one of my partners who is head of our strategic litigation department, Andrew Parker. When I consulted him afterwards about the sort of conversation that should take place between the Minister and the Law Commission, he asked for the following points to be raised by the Minister. It may assist the Minister in dealing with this and other amendments if I set them out. First, is the Minister right in saying that the clause in effect implements the decision in Tomlinson v Congleton Borough Council? Secondly, accepting that there needs to be a level playing field in negligence and breach of statutory duty, is that achieved? Thirdly, does the clause limit its application to personal injury and/or death? Fourthly, what does the Law Commission think about the phrase ““desirable activity””? The Minister has been very open with us and asked whether we can suggest anything better. That is probably a good question for the Law Commission. I noticed a flurry of activity when, in a stray moment, I omitted the word ““desirable”” and referred only to ““activity””. That may be an option, but those advising the Minister would probably be in a better position to consider the application of such a word to existing law. We have tried a number of options, such as ““public benefit””—a phrase suggested to me by one of the finest legal brains in Britain. We need someone somewhere to tell us what impact the phrase ““desirable activity”” is likely to have, given that it has never been interpreted before by the courts. The fifth question is: is there any benefit in such a statement being in Clause 1? Does such legislation change the law? If I may summarise the Minister’s position, it is: ““Please do not worry. We are not changing the law in any way; we are not amending the law””. It rather defies the whole basis on which Parliament operates to say that if we pass a clause in the Bill it does not change the law; it does not amend the law; it does not affect the law in some way. Does it clarify the law? My sixth question is: does the clause change the law? That is fundamental because, if the Law Commission’s answer is that it does change the law, that is the case for referring Clause 1 to the Law Commissioners, as the Minister explained in our previous debate. Then there is a problem of the burden of proof. In a moment we will come to an amendment that deals with that question, but what effect does the clause have on the burden of proof on either the defendant or the claimant or both? My final, eighth question is: if we are indeed restating the law, is there anything else that we should be clarifying? I know that the Minister approaches the debate with the best intentions, but I recall an idiosyncratic phrase such as, ““The road to Hell is paved with good intentions””. The Minister may be embarking on a route which, although she believes it leads to pleasant pastures, actually leads downwards into all sorts of problems. I hope that that is helpful in assisting the officials on whom the Minister relies to advise her about the points that she may explore in her forthcoming meeting with the Law Commission. It would be helpful to us all if the Minister were able to give us some idea of timing. Will that discussion have taken place before the noble Baroness gives evidence to the Select Committee? Will the results be ready before the Committee concludes? It would be helpful to have that sort of information before the Committee. In the mean time, this is a debate about the scope of the Bill and it would be enormously helpful if the Minister could give us some idea of the extent to which the clause will apply and what limitations she anticipates the courts will impose on its scope and coverage. I beg to move.