Mr.
Brazier: The Minister is courteous in giving way. It is
helpful that she has put on record the fact that the clause covers the
matter, although it is also important to note that her remarks about
the current state of law do not seem to work with insurers, whose
attitude is that if there is a risky activity they should put premiums
up. In large numbers of cases farmers have simply withdrawn from school
farm visits and from making land available for camping and so on. There
is a real problem, but I thank her for her assurance that the clause
will cover farmers and others who make their land
available.
Bridget
Prentice: I am grateful to the hon. Gentleman, and I hope
that in stand part debate we will all reiterate the principles behind
the clause. It is about reassuring volunteers that they will not be
sued frivolously and landowners that they will have the same protection
that the currently have. That will also send a message to insurers that
they should not be over-cautious in dealing with some of their
clients.
The issue of public benefit is
rather technical, and the difficulty is that in parliamentary
counsel’s view the concept is a narrower one than desirability
and would therefore not reflect the full range of flexibility
availability currently available to the courts, as demonstrated by the
case
law— 6.46
pm Sitting
suspended for Divisions in the
House. 7.14
pm On
resuming—
Bridget
Prentice: Before we broke, I was talking about why we do
not use the phrase “public benefit”. It is a technical
point: parliamentary counsel felt that that was a concept narrower than
desirability and that it would not reflect the full range of
flexibility available to the courts at present. It might be argued, for
example, that it would not encompass cases in which certain precautions
would have an impact on a business entirely disproportionate to the
risk to which they were directed. That was the point that I made about
the Latimer case. In
statute, “public benefit” is defined in respect of the
definition of a charity. That implies that a wider public, rather than
a narrower group, might benefit, so it would not have the same range
that appears in case law, which “desirable” is intended
to reflect. Having said
that, I take on board what the hon. Member for North Southwark and
Bermondsey said about that issue and about Pepper v. Hart, and I
hope that the courts will reflect on our discussions if there is any
doubt about the meaning of the Bill. In asking Opposition Members not
to press the amendments, let me say that I shall reflect on the points
that they have raised and the phrases that they have used instead of
“desirable activity” so that we can be absolutely
confident, come Report, that we are at one as to what we mean by them.
I shall make sure that everyone on the Committee is given a full
explanation of what we understand by each of them to see whether we can
reach consensus by Report. In the meantime, however, I ask hon. Members
not to press their amendments.
Simon
Hughes: I thank the Minister for her thoughtful and
wide-ranging reply, which picked up all the points that we raised. I do
not propose to divide the Committee and shall seek leave to withdraw
the amendment in a moment. I saw it as an opportunity to do what we
needed to do, which was to look at the drafting, phraseology and
terminology. In only
one of the Minister’s statements did those advising her stretch
the bounds of credibility beyond breaking point; she appeared to be
using notes, rather than speaking extempore, so I do not blame her,
although she is, of course, accountable. She said that the definition
of “lawful” or “legitimate” was that
something was “worth while”, but if we suddenly
reinterpreted those terms in that way, we would have a whole new
understanding of what was legitimate. I can see somebody appearing at
Tower Bridge magistrates court, saying, “But your honour, it was
worth while.” The judge would say, “Oh yes? Well, it
might have been worth while to you, mate.” The defendant would
reply,
“But the law says that if something is worth while, it must be
legitimate.” I think that that interpretation pushes the bounds
of possibility. On the
more serious issues, the Minister helpfully indicated her willingness
to look at alternatives. Having heard the debate and thought about it,
I accept what she said about public benefit, which is clearly a
narrower concept. Although it applies in statute law, particularly to
charities, it is probably inappropriate.
However, there is merit in
holding on to alternatives to social benefit. They include social
utility, which has been established in the courts, although mainly not
in this country, and social value, which has been clearly established
in this country’s courts, particularly in Tomlinson. I heard
what the Minister said about the provisions being meant to apply to the
tests that the court will use to decide not the final question of
liability in statute or common law, but whether, in the words of the
Bill, “the defendant
should have taken particular steps to meet a standard of
care”. I realise that
there are different tests at different parts of the process to evaluate
such things, but I hope that the matter can be looked at.
I shall look at the Latimer case
and the Wagon Mound No. 2 case. While Members were voting just now,
colleagues and I discussed with people in the public gallery what had
happened to the Wagon Mound No. 1 case, but nobody knows. All I know is
that it never became as famous. I assume that it must
have involved the same ship or the same defendant, but it clearly did
not raise the same important points of law. I would be grateful if the
Minister took advice about looking at the personal, economic and social
benefit. There was a good exchange between her and the hon. Member for
Canterbury, in which she gave what I understood to be a clear answer.
She said that we were talking about something that was not only
personally but generally desirable, so that meant a wider, rather than
a narrower definition. However, we might still be able to return to
something that uses established phrases.
To pick up a point made by the
hon. Member for Blaydon, I am keen that we do not end up accidentally,
or purposely, doing something that leads to lots of work in lots of
court cases. The Tomlinson case took nine years to get to law. The
asbestos case has been going on for many years and is still not
resolved. If we are not careful, the lawyers get going. It takes years
to get civil negligence cases to the highest court and sorted. We must
avoid that. This is about real people, real lives, real experiences and
a need for finality. Often, in court cases, individuals want not
necessarily a ruling that will be quoted in law but simply an end to
their case so that they know where they
stand. I am grateful
for the Minister’s response. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Further
consideration adjourned.—[Mr. Michael
Foster.] Adjourned
accordingly at twenty minutes pastSeven o’clock till
Thursday 22 June at Nine
o’clock.
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