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Lord Cope of Berkeley moved Amendment No. 19:


(" .--(1) An individual, partnership or company which employs security operatives to which paragraph 8 of Schedule 2 to this Act applies (door supervisors, etc. for public houses and clubs and comparable venues) shall be liable (in contract and in tort) for the acts and omissions of those individuals.
(2) It shall be the duty of any such individual, partnership or company, to maintain, for public inspection, upon reasonable notice and upon the payment of such fee as the Secretary of State

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may from time to time prescribe, a list of the individuals and their addresses, to which paragraph 8 of Schedule 2 to this Act applies and the dates upon which they worked, and their hours of work.
(3) For the purposes of this section, an individual, partnership or company employs a security operative if he has security operatives on his premises, notwithstanding the fact that those security operatives may be employed or remunerated by another individual, partnership or company.").

The noble Lord said: This proposed new clause provides a liability for the acts, or omissions, of door supervisors when they do the wrong thing. In order to police the liability, the amendment goes on to provide that those who employ door supervisors must keep a record of those whom they employ in that capacity and their times of employment. As subsection (3) makes clear, that applies even if the security operative--in this case the door supervisor--is the employee of another company but is merely working in that club or public house at the time.

The purpose of the amendment is to provide a remedy to a problem which I am told is quite common; namely, the trouble that may arise between a door supervisor and some of the guests or customers of an establishment. If there is an argument that the door supervisor has assaulted a customer, it is often not possible for that customer to pursue a civil action against that individual because the door supervisor will almost certainly lack the means to pay any necessary damages. It appears that employers are unlikely to be found liable in such cases because the victim (the customer) is likely to be met with the defence that the employee was acting on his own behalf, that he was on a frolic of his own and was, therefore, outside the course of his employment.

I express myself in those terms in the light of conversations that I have had with a barrister who has experience of these matters. As the law stands, if a night club reasonably contracts out its security functions to another company, an action against the venue could not succeed. This amendment seeks to ensure that if an altercation takes place, during which a customer feels he has been unfairly set upon by a door supervisor, it will be possible for him to bring a successful action for damages against the company that owns the club or public house in question. That may not occur in the best conducted establishments, but it may and apparently does occur in some.

In my view, it is the duty of a club to keep control over its employees. If those employees behave improperly and, for example, throw somebody down a flight of stairs, the company, as well as the individual security operatives, should be liable. I should add that that concept will not necessarily always involve a flight of stairs. The altercation may take place on the pavement outside the premises, which would make it all the more difficult, as the law stands at the moment, to pursue the club itself. The purpose of the amendment is that one should be able to pursue the club as well as the individual door supervisor. I beg to move.

Lord Thomas of Gresford: If this amendment is intended to cover a security operative who acts on a frolic of his own, it is a startling extension of liability

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in contract and in tort. It has wide insurance implications. For example, if a door supervisor produced a knife, which the owner of the club had no reason to suspect he had on his person, and used it, the club would be liable for the injury that was occasioned. As I understand the way in which the noble Lord, Lord Cope, puts the case, it may or may not be desirable from a public point of view, but it does have very wide implications.

With regard to subsection (2) of this new clause, anyone with experience of the Crown Courts of this country will understand precisely the problem to which the noble Lord referred; namely, that security operatives who cause trouble disappear or cannot be identified, either in respect of their criminal liability or their liability in tort. It is a very good idea to have a register of club or public house door supervisors. Whether it should encompass the whole of this clause, with its wide extension of liability, is a different matter.

Viscount Goschen: I support the intent behind my noble friend's amendment. There clearly is an issue to be considered with regard to the relationship between the management of clubs and the actions of door supervisors. I have listened with care to the remarks of the noble Lord, Lord Thomas of Gresford, about the various legal difficulties with this approach. There is perhaps another approach that the Minister or another Member of the Committee might volunteer. However, it would be extremely regrettable if the management of a club could say, "We have moved from the previous position of employing any old gaoler on the door. We have now employed a licensed doorkeeper, who has committed an act for which we have no responsibility whatever".

One of my concerns relates to drug dealing by doormen and the control of drug dealing in night-clubs. Responsible night-club owners will want to ensure that drugs are not used in their night-clubs. However, there are rogue night-club owners as well as rogue doormen. In the circumstances that I have described, how does the Minister suggest the relationship between club management and doorkeepers should work? In the example of a doorkeeper throwing someone down a flight of stairs or on to the pavement, the management may say to a doorkeeper, "We employ tough doormen who will throw people out. We do not want any bother. We want to see these guys out on the pavement and treated harshly". The doorkeeper may do exactly that, and the customer may try to pursue a claim against that doorkeeper. However, the fault could well lie with the management of the club for encouraging their doormen to exercise undue violence, or because of concerns relating to dealing in drugs.

Lord Bassam of Brighton: I have some sympathy with the point made by the noble Lord, Lord Cope of Berkeley. However, I am not sure that this amendment deals with it in the right way. I prefer the point made by the noble Lord, Lord Thomas of Gresford. The amendment would place additional requirements on employers of door supervisors and those who may use

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door supervisors. I also argue that it places a vicarious liability on those employers or other users for the actions of their door supervisors.

We believe that the duty that would be placed on employers to keep publicly available records of door supervisors' names, addresses, dates and hours of work would impose an additional burden on employers for very little public benefit. Any member of the public who has a complaint against a door supervisor should already be able to ascertain the relevant details from his employers, and, if necessary, the police may be called upon to assist.

We believe that this additional burden would go too far in the direction of a regulatory burden on companies. We take the view that reputable companies should already be able to do what the amendment seeks to impose. Although I am not at present in favour of such a requirement, if a problem should arise and it became apparent that it was larger than at first thought, there would be nothing to stop the security industry authority from making it a condition of the approved contractors scheme under Clause 14--a scheme that we expect the majority of reputable companies to join.

The issue of vicarious liability raises further questions. Vicarious liability is firmly established at common law as a principle that will make employers liable for the acts and omissions of employees who are acting,

    "in the course of their employment",

rather than, as has been said, going off on a frolic of their own. The amendment would extend the vicarious liability principle substantially. A bouncer's employer would be liable in contract and in tort for all actions and omissions of his employee. Theoretically, a situation could arise where a pedestrian, knocked down by a motorist who happens to be an off duty bouncer, would be able to claim against the bouncer's employer. More practically, if a bouncer decided to stab someone while carrying out bouncer duties, it means that the employer would be liable to pay compensation for the actions, even if the bouncer were acting independently out of anger or revenge.

Subsection (3) of the amendment considers that an employer employs a bouncer if he has bouncers on the premises, even if that person is supplied under a contract of services. So a landlord may go to the trouble of employing a reputable company and yet still be liable for misdeeds on the part of the bouncer.

The proposed extension of the vicarious liability principle goes far beyond the needs of common law. We believe that it would impose an unfair and unjust system on those who retain door supervisory staff. Therefore, in good conscience, I am afraid that we cannot support such a measure. In view of my comments, I hope that the noble Lord will feel able to withdraw the amendment. For my part, I shall certainly reflect on the issue raised. However, I cannot recommend the proposed new clause as a solution to the Committee.

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