My Lords, this has been a very interesting, entertaining and helpful debate, in which a number of useful points have been raised. As I explained in my opening speech, our core aim in introducing the Bill is to provide reassurance to people who act in a socially beneficial way, behave in a generally responsible manner, or act selflessly to protect someone in danger that the courts will always take the context of their actions into account in the event that something goes wrong and they are sued.
The amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, seeks to prevent the Bill from receiving a Second Reading on the basis of two premises: first, that the subject matter of the Bill is already covered by Section 1 of the Compensation Act 2006; and, secondly, that the sole purpose of the Bill is not to make new law but to send a message to the courts, and that that is not a proper use of legislation. The Government do not accept that either premise is correct. As I explained, Clause 3 does change the law—albeit not in a major way—by requiring the courts to have regard to whether a person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.
In making that change, we want to ensure that the courts take a slightly broader view of the defendant’s conduct than at present by looking at whether a
defendant’s approach to safety during an activity was generally a responsible one, taking into account all that he did or did not do. The court will be obliged to weigh that in the balance when considering the ultimate question of whether the defendant met the required standard of care. While that does not rewrite the law in detail, it is a substantive change. If it were to tip the balance in favour of the defendant in a particular case, then that is a result with which the Government would be happy.
Clauses 2, 3 and 4 also require the court to take particular factors into account. While, as I have said, Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act, the approach that it takes is different. It requires the court to have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. The fact that the fear of litigation remains so widespread almost a decade after Section 1 was introduced only goes to suggest that it has been ineffective and that firmer action, such as this, needs to be taken.
The noble and learned Lord, Lord Lloyd, said that I had paid scant regard to the Compensation Act in my opening remarks. Let me attempt to make good that omission. In her introduction to the Compensation Bill, the noble Baroness, Lady Ashton, said:
“The Bill will provide better safeguards for consumers of claims management services and will reassure those concerned about possible litigation that the law of negligence takes the social value of activities into account and that they will not be found liable if they adopt reasonable standards and procedures”.
After dealing with the regulation of claims management services, she went on to say:
“The Bill's provision on negligence reflects recent judgments of the higher courts. It makes clear that when considering a claim in negligence, in deciding what is required to meet the standard of care in particular circumstances, a court is able to consider the wider social value of … the context of which the injury or damage occurred. It provides that the court can have regard to whether requiring particular steps to be taken to meet the standard of care might prevent a desirable activity from being undertaken or might discourage people involved in providing the activity from doing so.
The Bill forms part of a wider programme of work which is being taken forward across government and, in partnership with stakeholders, to tackle perceptions that can lead to a disproportionate fear of litigation and risk averse behaviour, to find ways to discourage and resist bad claims and to improve the system for those with a valid claim for compensation”.—[Official Report, 3/11/05; cols. WS 29-30.]
At Second Reading, the noble Baroness said:
“This Bill is part of a much wider set of initiatives that is being taken forward across government. The Government are determined to tackle practices that stop normal activities taking place because people fear litigation, or have become risk-averse. We want to stop people from being encouraged to bring frivolous or speculative claims for compensation. The provisions in this Bill will help us do that. They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.
Later, she said, referring to Clause 1, that:
“This provision reflects guidance given by the higher courts during a considerable period and renewed in recent cases. It will ensure that not only all courts but also litigants and potential litigants are fully aware of this, and will provide reassurance to
the many people and organisations, such as those in the voluntary sector, who are concerned about possible litigation”.—[Official Report, 28/11/05; cols. 81-82.]
The noble Lord, Lord Beecham, seemed to imply that the notion of a compensation culture was entirely in the imagination of this Government, but it appears to have featured quite heavily in the imagination of the previous Government.