Mr.
Heald: Given that it is a technical matter and that a lot
of legal issues may be thrown up by it, does the hon. Gentleman agree
that if the Minister were to table an amendment it would be useful to
have a helpful explanatory note about how it would tackle the issues in
Barker and Corus?
Simon
Hughes: That would be helpful. I know that the Minister
will try to do so. I
have a four-page note on the implications of Barker v. Corus
from my hon. and academic Friend the Member for Cambridge (David
Howarth), whose life work has been to study and teach the law of
negligence. I have read it twice and I am still not sure that I
understand all the implications. I am sure that it just requires a bit
more fresh air and a flannel and less distraction because of the World
cup. The serious point is that, yes, the more information we get at an
earlier stage, the better. If that is not possible, I would be happy
for that information to be provided on Report, with plenty of
opportunity for colleagues to think about it. Ideally, though, it would
be provided in
Committee. 4.45
pm I have two final
points. I have never before been on a Committee in which the
Conservative party—for that matter, any party—has done a
sort of trailer for the real film of all the things that are to come.
Now we know what issues the Conservative party will treat us to. It is
always useful to know what is coming down the tracks, and we look
forward to discussing those issues. The one that we clearly need time
for—the trade union relationship and trade union
solicitors—was referred to in part 2, which is much less
controversial. There is a willingness to make sure that we understand
what the law is and what it should
be. Lastly, in case
people comment later, I have always taken the view that, in Committee,
we should be as lightly whipped as possible, because Committee stage is
when people should be able to express individual opinions. So, if my
hon. Friend the Member for Montgomeryshire and I have a difference of
view—I have not discussed with him whether we do—we shall
vote differently. In my view, that is what Committees should be for: to
allow Members to express their view unless there is a party manifesto
commitment. I do not think that there are any great party manifesto
commitments at stake. I hope that we will have a constructive debate
and be persuaded by the argument, not by pre-ordained views that drive
us into a particular voting Lobby or in a particular
direction.
The
Chairman: Let me respond to Mr. Brazier’s earlier
question. There was a difficult decision as to whether to put all the
amendments together and debate them in common. We decided that to do so
would give the Committee a better opportunity to discuss all the
issues. Like the hon. Gentleman, I hoped that we would avoid a separate
stand part debate because we would have covered everything in detail by
that point. The more general points would be most appropriately made in
the debate on the amendments grouped with amendment No.
27.
Bridget
Prentice: Normally, I hope that the programme motion will
pass virtually unscathed, but we have had an important debate about
what is in the Bill and what we hope will be in the Bill.
The hon. Member for North-East
Hertfordshire (Mr. Heald) is absolutely right: mesothelioma is a
disease that can be 30 years in gestation but which once
diagnosed can cause a quick and painful death. We want to make
absolutely sure that sufferers and their families are as protected as
possible from the consequences of the disease. The Department for Work
and Pensions and the Department for Constitutional Affairs have been
working with stakeholders to find ways to improve the claims process
and the tracking of employers and insurers. We know that to be
important. Mr.
Heald: The hon. Lady will be aware that some major
insurers in this country—Norwich Union, Zurich and so
on—have good systems for tracing companies that were insured by
them through the years. The same is not true of some others. Clearly, a
level playing field helps everyone. It helps the claimant because he is
able to trace an employer’s insurer and therefore has someone to
sue. It also means that the system is
fairer.
Bridget
Prentice: I accept what the hon. Gentleman says. We are
aware of that. It is one of the reasons that a great deal of work is
going on in that area.
Mr.
Kevan Jones (North Durham) (Lab): I warmly welcome the
inclusion of the amendment on mesothelioma. The issue of pleural
plaques was raised on Second Reading. Has that issue been considered on
the scope of whatever amendment the Government are bringing
forward?
Bridget
Prentice: We are concentrating on the Barker judgment and
have asked officials to work on that. As for timing, I would like that
amendment to be introduced in Committee for two reasons. First, I said
as much on Second Reading, but, secondly and more importantly, Labour
Back Benchers in Committee have been most vociferous in advocating the
cause of mesothelioma sufferers. It is appropriate that my hon. Friends
should be the first to ensure that such changes take place. However, if
it cannot be done by the end of our time in Committee, we can come back
to the issue on
Report. In reflecting
on the issues, we have received cross-departmental support for what we
are trying to do. I can tell the hon. Member for North Southwark and
Bermondsey (Simon Hughes) that the Bill is a Labour party manifesto
commitment, and I am pleased that the proceedings are taking place.
However, I hope that people do not underestimate the amount of work
that has already been done in the short time since the Barker judgment
to make sure that people who suffer from mesothelioma and their
families receive the justice that they deserve. I know from comments in
Committee that everyone here will help us to try to achieve
that.
Mr.
Heald: I mentioned the explanatory
note.
Bridget
Prentice: Absolutely. We will make sure that an
explanatory note is attached to any amendment that we table. On that
basis, I recommend the programme motion to the
Committee. Question
put and agreed to.
Clause
1Deterrent
effect of potential
liability Angela
Watkinson (Upminster) (Con): I beg to move amendment No.
11, in page 1, line 4, leave out ‘may' and insert
‘shall'. What
a pleasure it is to serve under your chairmanship, Mr. Caton. I am
introducing the amendment as my hon. Friend the Member for North-East
Hertfordshire has to leave our proceedings before the debate is likely
to conclude. The amendment is small. It is an attempt to move the power
of the court from a discretionary to a mandatory power. In its report
“Better Routes to Redress”, the Better Regulation
Commission concluded that the compensation culture is a myth. However,
the cost of belief in it is real. I agreed with that conclusion and
therefore support the principle of clause
1. The
Department for Constitutional Affairs report “Effects of
advertising in respect of compensation claims for personal
injuries” demonstrated how widespread is the perception that we
live in a compensation culture. Quantitative findings suggest a very
strong, widespread belief that there has been an increase over the past
five years in the number of people making successful claims for
personal injury compensation. The report showed that 87 per cent. of
those who responded believe that more people claim compensation for
personal injury than did five years ago. The majority expressed the
view that a lot more—67 per cent.—were doing so,
while 20 per cent. of people thought that a few more people
were doing so. Only 1 per cent. thought that fewer people were claiming
compensation. None thought that a lot fewer were. Those findings are of
concern and underline the importance of clause 1, which is designed to
add greater clarity and certainty to the
law.
Paddy
Tipping: I do not deny that there is that perception, but
the reality is different. The number of cases entered before the court
is, in fact, dropping. One significant thing about clause 1 is that it
works on perceptions of what is happening rather than the reality of
what is happening on the
ground.
Angela
Watkinson: The hon. Gentleman has pre-empted my later
comments Clause 1 is designed to add greater clarity and certainty to
the law. That is also the purpose of the amendment. There should be
some readily understood clarity on what the clause seeks to do. The
amendment accentuates the fact that clause 1 does not change the law
but merely clarifies the existing
law. In another place,
Baroness Ashton
argued: “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.” —[Official
Report, House of Lords, 15 December 2005; Vol. 676, c.
200.] I understand that Ministers
may be reluctant to fetter the discretion of the court, but the
discretion remains in the overall provisions of clause 1, which enabled
the court to consider all the circumstances of the case. The law should
continue to develop. However, a clear
statement is necessary for judges and the public. There should be some
readily understood clarity on what it seeks to do. What is wrong with the clause
stating that the circumstances will be considered, if it does not amend
the law? Why do Ministers not have the confidence to say that those
matters are required, not optional? Greater clarity and certainty are
necessary. I envisage, unless the Minister is willing to respond,
endless satellite litigation on whether the judge should exercise the
discretion, let alone on how the discretion is to be
exercised. Lembit
Öpik (Montgomeryshire) (LD): Welcome to the Chair,
Mr. Caton. Does the hon. Lady agree that it is hard to see why the
Government would want to resist that? By putting “shall”
instead of “may”, we are asking that the court will
always take account of that condition. If it does not apply, that will
be fine. However, it may be inferred from “may” that
there might be occasions when the conditions should be taken into
account but will not be. Does she agree that the amendment is a
sensible—almost a housekeeping—change to ensure that the
clause is properly
applied.
Angela
Watkinson: I thank the hon. Gentleman
for his thoughtful intervention. He has triggered my awareness of an
omission in my introduction; I should have said that the amendment is
introduced in the name of my hon. Friend the Member for North-East
Hertfordshire, my own and that of the Liberal Democrat spokesman, the
hon. Member for North Southwark and Bermondsey. I apologise for
forgetting to do
that. I return to the
Arculus report from the Better Regulation Task Force entitled
“Better Routes to Redress”, which Members may recall was
published in May 2004 and it put forward this
view: "an exaggerated fear of
litigation, regardless of fault can be debilitating. The fear of
litigation can make organisations over cautious in their behaviour.
Local communities and local authorities cancel events unnecessarily and
ban activities which, until recently, would have been considered
routine. Businesses may be in danger of becoming less innovative and
without innovation there will be no progress".
Those words underpin the strength of the
case for being more certain about the impact of the legislation and
therefore moving from a discretionary situation to a mandatory one.
That is why I move the
amendment.
Mr.
Brazier: I did not intend to be churlish in not welcoming
you to the Chair earlier, Mr. Caton. I do so now and think we will have
as interesting a Committee stage as we had on Second Reading.
I support the
amendment. The intervention a moment ago by the hon. Member for
Sherwood (Paddy Tipping) slightly missed the point. There may be a
sharp decline in the kind of activities that attract litigation, but a
fall in the number of cases does not show lesser willingness to
litigate, it shows that activities are disappearing. That is perhaps a
theoretical point.
The practical
fact is that my colleagues and I in the all-party group on adventure
and recreation in society—I am delighted to see my co-chairman,
the hon. Member for Montgomeryshire, on the Liberal Democrat Benches,
and our Labour co-chairman, the hon. Member for
Sittingbourne and Sheppey (Derek Wyatt), made a powerful speech on
Second Reading—are concerned not by the great raft of litigation
across all headings but by the amount relating to adventure training,
sport and physical recreation, which is a very small proportion of the
total. The overall statistics are not
relevant. 5
pm
Paddy
Tipping: The hon. Gentleman confuses the argument. He
accuses me of saying that the number of cases has gone down because
people have been put off activities, but has now admitted that
adventure and outdoor training, which is indeed important, is a very
small part of the claims total. If we are legislating, we must
legislate from fact, which is that claims registered are decreasing,
rather than from
perception.
Mr.
Brazier: The hon. Gentleman makes a good point, but the
fact is that America, which has the worst compensation culture in the
world with more than five times our level of litigation, has a much
higher barrier in most states to protect sport and adventure training
than would be created even by a clause 1 strengthened in the way the
amendment proposes. In most American states, reckless disregard must be
proved, which means in practice that intent must be proved, and my
concern is with those areas. My hon. Friend the Member for Upminster
(Angela Watkinson) made a powerful case by saying that the courts
should take the circumstances into account rather than having the
option to do so. It
would be burdensome to repeat the case from a court in Manchester that
I described in detail on Second Reading, as almost everybody here was
present. However, I ask hon. Members to consider whether the judge in
that case, which took place while the matter was being debated in
another place, would have bothered to use his discretion in the way the
clause advocates. Hon. Members will remember that he awarded
£15,000 against the Scouts for allowing a Brownie to cut herself
by sitting on a seat in an auditorium that had been doubly inspected
before a pantomime that the Scouts were performing for the
Brownies. Ian Lewis,
the director of Campaign for Adventure, which brings together most of
the adventure training organisations in this country,
commented: “The
British Hang Gliding and Paragliding Association and the British Horse
Society...are being forced to close centres because the insurance
is becoming unaffordable. This is because the judiciary fail to realise
the implications of their decisions and perceptions related to
them.” The question is not
about the wider compensation culture but whether the activities of
youth, adventure training and sporting groups are being affected by the
kind of decision that was not made 15 years ago.
I mentioned on
Second Reading that I have submitted a string of cases to the
Government. When the all-party group submitted them, we were told that
they did not have law reports and so could not be taken into account,
even though we provided dates, locations and the names of the judges
concerned. There were cases against the Scouts, a case against a yacht
club and a case against a rugby club; there was a whole string of them.
In only
one case, that of the rugby club, was there a fair degree of argument on
both sides. In every other case, the ordinary layperson would have
agreed that it was completely unreasonable, if we want people to
operate voluntary organisations for the benefit of young people and
others who want those opportunities, to make such
decisions. I shall
quote a new ally. The website of the Royal Society for the Prevention
of Accidents
says: “Exciting
and stimulating play areas not only contribute to the physical and
psychological development of the child but also discourage children
from playing in dangerous locations such as railway lines, canals and
river banks and alongside
roads.” Indeed,
on the “Today” programme on 15 June, David Yearley of
ROSPA said that in his view, play areas were simply becoming
“boring”. The Daily Telegraph also reported
that he told an international play safety conference at Loughborough,
Leicestershire, that playgrounds should be
“as safe as necessary, not as safe
as possible”. That is not
the mentality of modern judges, and the cases that I have quoted
illustrate that. The
Girl Guides, who have a waiting list of 50,000 girls and are 8,000
volunteers short, have
stated: “We want
the Bill to renew the recognition by the public at large that there is
an acceptable degree of risk in worthwhile activities for children and
young adults...The perception that anyone working with other
people’s children risks being sued for even the most minor
accident is hugely detrimental to children’s freedom to
partake” in adventure
activities “by
discouraging existing volunteers to run
activities”. Mr.
David Anderson (Blaydon) (Lab): The hon. Gentleman says
clearly that he wants to protect people who act as risk takers and look
after children, but we should surely not stop people made genuinely ill
or injured at work, due to negligence, from having the right to make a
legitimate
claim.
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