15 Dec 2014 : Column 1

House of Lords

Monday, 15 December 2014.

2.30 pm

Prayers—read by the Lord Bishop of Bristol.

Introduction: The Lord Bishop of Southwark

2.37 pm

Christopher Thomas James, Lord Bishop of Southwark, was introduced and took the oath, supported by the Archbishop of York and the Bishop of London, and signed an undertaking to abide by the Code of Conduct.

Lord Russell of Liverpool took the oath.

Death of a Member: Lord Knights

Announcement

2.42 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death of the noble Lord, Lord Knights, on 11 December. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

NHS: Medical Staff

Question

2.42 pm

Asked by Lord Fowler

To ask Her Majesty’s Government how many medical staff working in the National Health Service today, including doctors and nurses, were trained in Africa.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, in 2013, the latest year for which figures are available, there were 6,472 doctors working in the NHS—that is 4.4%—who gained their primary medical qualification in Africa and 13,969 nurses on the Nursing and Midwifery Council’s register who trained in Africa. In that same year, 12,203 professional clinically qualified staff working in the NHS—that is 1.8%—held nationality with an African country.

Lord Fowler (Con): My Lords, I pay tribute to the job that these people do for the National Health Service, but is not the lesson of the Ebola crisis that many of the health services in Africa are seriously underresourced? Can it be justified that not only Britain but other countries in Europe and the Middle East are taking much needed doctors and nurses away from Africa? Could we look at our own training policies to see how that position can be improved?

Earl Howe: My noble friend makes a very important point. As he will know, the UK signed the World Health Organization code of practice on the international recruitment of health personnel. My department worked together with the Department for International Development to produce a definitive list of developing countries—based on economic status and the availability of healthcare professionals—that should not be targeted for recruitment. He may like to know that the WHO is planning an assessment of the implementation of that code of practice and is due to report in 2016. However, we are mindful of the point made by my noble friend. Particularly with the Ebola crisis, it is important that we are sensitive to the serious issues that pertain in Sierra Leone in particular.

Lord Hunt of Kings Heath (Lab): My Lords, given that, and given the Health Select Committee’s recommendation that although the contribution of overseas staff to the NHS should be celebrated, we should not be dependent on significant flows of trained staff from overseas, does the noble Earl still agree with

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the decision in 2012 to reduce the number of medical school training places by 2%? Does that not need reviewing?

Earl Howe: My Lords, as the noble Lord is aware, we rely on Health Education England to determine the number of training places that the NHS needs going forward, looking at not just the short term but also the medium to long term, informed by the work of the local education and training boards. That is as good a system as we believe we can get. Health Education England is properly funded to do that and we must rely on its expertise.

Lord Crisp (CB): My Lords, I understand that the NHS in recent years has made it harder to employ people coming from poorer countries in Africa and elsewhere to work here. However the NHS, as the Minister has already stated, has a large number of people working within it from those backgrounds. I have two questions. First, what are the Government doing to aid countries to train more people in their own countries? Secondly, what are the latest figures for the international medical graduate scheme for people coming from Africa training in this country?

Earl Howe: The international postgraduate medical training scheme is only just starting and we hope to launch it very soon with one particular Middle East country. As regards the noble Lord’s first question—he will have to remind me of it.

Lord Crisp: I hope I can remember it. It was very simply: what are we doing from the UK to support the training of people in their own countries, where they will often stay longer than if they come and train here?

Earl Howe: I beg your pardon, my Lords. DfID has a number of programmes designed to support the health economies of developing countries. They have been in place for many years. They can take the form of training, not just of doctors but of all healthcare professionals. I am aware that DfID is extremely supportive of those programmes.

Baroness Brinton (LD): My Lords, 10 years ago there were more Malawian doctors working in England than there were in Malawi and the Royal College of Surgeons, working with CBM UK, a disability charity, set up the College of Surgeons of East, Central and Southern Africa. In that time the number of African-trained surgeons has substantially increased through this joint practice. Are other royal colleges following their example in setting up similar projects?

Earl Howe: I am not aware of the answer to that question but I can tell my noble friend that the UK has been moving towards self-sufficiency for a number of years. For example, there was a 27% decrease in the number of registrations of non-European Economic Area nurses from April 2010 to March 2014, continuing a longer-term trend. The number of doctors in the NHS with a primary medical qualification from outside

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the EEA has remained relatively static over the last four years despite the full-time equivalent number of doctors increasing by more than 5% over the same period. I think we can take heart from those figures, mindful, of course, of the need to adhere to the World Health Organization code of practice.

Baroness Wall of New Barnet (Lab): My Lords, I am sure the whole House will join in the sentiments expressed by the noble Lord, Lord Fowler, about the tremendous work that these nurses and doctors do in our NHS. I declare an interest as chairman of Milton Keynes Hospital NHS Foundation Trust. As I am sure the noble Earl is aware, many of the hospitals now are encouraging some of the African nurses to go back and have an opportunity to train the skilled and unskilled nurses who are already in their own countries. Despite the fact that things are obviously very challenging for us here, it is very important that they are able to do that.

Earl Howe: I agree with the noble Baroness. It is important to underline that the medical training initiative, which is the means by which we can present an offer to foreign doctors—that is, postgraduate medical specialists—to come to train here, is a fixed-term arrangement for up to two years. It seeks to promote circular migration so that participants in a scheme can return to their home country and apply the skills and knowledge developed during their time in the UK. That is very valuable for those individuals and those countries.

Baroness Chisholm of Owlpen (Con): My Lords, during my career as a nurse, I had the privilege of working with nurses from all over the world, including the African continent. They showed enormous compassion and dedication to their work. Does my noble friend feel that it is important that, when these nurses come to England, they are given all the support and training possible so that they reach the high standards that our nurses reach in their training here?

Earl Howe: My Lords, I do. My noble friend will be aware that the Nursing and Midwifery Council has established standards which ensure that the quality of the nurses whom we get from overseas is absolutely up to that of home-trained nurses. Support for those nurses while they are in this country is of course an essential ingredient if we are to keep them here for a reasonable length of time.


Higher Education: Financial Sustainability

Question

2.51 pm

Asked by Lord Sharkey

To ask Her Majesty’s Government what is their assessment of the Higher Education Commission’s report Too Good to Fail: The Financial Sustainability of Higher Education in England.

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Baroness Williams of Trafford (Con): My Lords, the Government welcome this contribution from the Higher Education Commission and are looking closely at its findings. In fact, the Chancellor, in his Autumn Statement, has already addressed the recommendation on postgraduate education. The UK enjoys a world-renowned reputation for the quality of its universities, and we have protected and enhanced that through our reforms. According to the OECD, we are one of the few nations to have introduced a sustainable system of higher education finance.

Lord Sharkey (LD): The report notes that the overall number of students in higher education in England is actually declining due to very large falls in the numbers of part-time undergraduates, postgraduates and mature students. Does the Minister agree that this reduction in the diversity of our higher education system is a cause for concern, and can she tell the House what plans the Government have to address the situation, particularly when it comes to part-time undergraduates?

Baroness Williams of Trafford: My Lords, the figure for accepted entrants as of August 2014 was up by 4% and that for mature students was up by 6%. In terms of postgraduate funding, your Lordships will know that loans of up to £10,000 will be available from 2016-17. Indeed, in 2012 the Government introduced non-means-testing for loans for part-time students of 25% or more of the full-time equivalent.

Lord Hannay of Chiswick (CB): My Lords, does the Minister not recognise that her original Answer sounded rather like someone sitting in the back of a canoe facing upstream just before going over a very large waterfall? Can she perhaps say something about financial sustainability, which she has not covered very fully? In particular, 45 modern languages schools in British universities closed in recent years on the grounds that they were not financially sustainable. Does that leave the Government calm or worried?

Baroness Williams of Trafford: My Lords, I do not recognise the words “canoe”, “upstream” or “waterfall” mentioned in that question. According to the OECD, we are one of the few nations to have introduced a system of sustainable higher education finance. Indeed, our numbers of students are up to record levels at nearly half a million.

Lord Stevenson of Balmacara (Lab): My Lords, is there not a triple whammy? The Government are no longer funding higher education; they are funding the debts of students who are attending universities. Students are acquiring debts—the latest figures from the IFS show an average debt of £44,000 per student leaving university. In addition, as we have just heard, universities have lost funding for important courses such as languages. The Government say that there is no imminent pressure on the system. Which way is the Minister facing?

Baroness Williams of Trafford: My Lords, I am facing firmly in the direction of the widely accepted view that both the student and the state should share the burden of higher education. In fact, graduates have higher earning potential than non-graduates.

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Baroness Benjamin (LD): My Lords, we need to bridge the social mobility gap. As the report states, universities will have to face huge cuts in the future. How will the Government ensure that spending on widening access to higher education is not the first place where savings will be found? I declare an interest as the chancellor of the University of Exeter.

Baroness Williams of Trafford: My Lords, the cap will be lifted in 2016, widening access as far as possible. In fact, disadvantaged students now make up 17% of the total, which is a record level.

Lord Giddens (Lab): My Lords, as someone who has worked in higher education all my life, I was very surprised by the Minister’s response to this report, which is a devastating critique of government policy on higher education. The report shows that it is unsustainable and that commercialism is undermining academic values and it indicates quite clearly that a change of course is absolutely necessary. Can the Minister say what change of course this would be and not just go into defensive mode about it?

Baroness Williams of Trafford: My Lords, I do not think I am going into defensive mode. I reiterate the view of the OECD, which is a widely respected body, on the sustainability of higher education finance. Like the noble Earl, Lord Howe, I have forgotten the second part of the question. I remember—since the report was published, as the Chancellor set out in the Autumn Statement, we have in fact announced that postgraduate loan-based funding would be available from 2016. We have addressed some of the concerns within the report.

Lord Brooke of Sutton Mandeville (Con): My Lords, will my noble friend take comfort from the fact that when Mr Blair advanced the policy of “education, education, education”, he did so after the Conservatives had raised participation in higher education to a percentage in the middle 30s after inheriting a figure of 12% from the Labour Party in 1979?

Baroness Williams of Trafford: My Lords, I always take comfort in everything that my noble friend says.

The Archbishop of York: My Lords, will the noble Baroness tell us how, in the light of this report, she hopes to mitigate the risks to financial sustainability? Those are very big risks. Can she tell us how she will mitigate them? Forget the canoes.

Baroness Williams of Trafford: My Lords, the Government have asked HEFCE to monitor this situation, particularly in the light of the cap being lifted in 2016. That is a very important point.


Devolution: Arts and Culture

Question

2.58 pm

Asked by The Earl of Clancarty

To ask Her Majesty’s Government what assessment they have made of the effect of devolution on arts and culture within the United Kingdom.

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Lord Gardiner of Kimble (Con): My Lords, responsibility for arts and culture is devolved within the United Kingdom. Arts Council England works closely with its counterparts in Scotland, Wales and Northern Ireland, and together they share a collective aim of ensuring that arts and culture across the United Kingdom are available to all.

The Earl of Clancarty (CB): My Lords, does not the Minister believe that, for regions to fund the arts properly, a provision for arts and cultural production—as a major contributor to a region’s cultural identity—should form a significant aspect of devolutionary arrangements? A prime example of much that is now under threat is the Ulster Orchestra, whose future is of concern not only to Northern Ireland but to the UK as a whole.

Lord Gardiner of Kimble: My Lords, decisions regarding the Ulster Orchestra are, of course, matters for the Northern Ireland Executive. I know that meetings have been held with the Northern Ireland Department of Culture, Arts and Leisure and, indeed, with Belfast City Council. I very much hope that those parties can work together to find solutions, but of course the UK Government have a role to play. That is absolutely why all the creative tax reliefs—there are now five and I hope there will be six, with orchestras under consultation—are going to play a very big part in helping creative industries.

Lord Wigley (PC): My Lords, is the Minister aware that the coming year, 2015, is one in which we in Wales are celebrating the cultural links arising from the establishment of the Welsh community in Patagonia?

Noble Lords: Oh!

Lord Wigley: I gather from that response that there may not be total awareness of that fact.

Will the UK Government give positive support to the celebrations, as indeed are the Government of Wales and the Government of Argentina? Does the Minister consider that the Government might look on these cultural links as an opportunity and a context in which to seek to improve the relationship between the United Kingdom and Argentina?

Lord Gardiner of Kimble: My Lords, culture plays a big part in our relationship with many countries around the world. I am not briefed on whether the UK Government themselves are helping with the Patagonian exchange, but if one goes to Patagonia, there are Welsh-speaking villages and communities there, so it is important that Patagonia is part of our cultural links. I very much support what the noble Lord said.

Lord Howarth of Newport (Lab): My Lords, does the Minister recognise that, in the days when local government was treated with respect and enjoyed large freedoms, accountable not to the Treasury but to its own ratepayers, cities thrived and many of them engaged in remarkable patronage of the arts? Unless the

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Government are willing to allow greater freedoms to cities across the United Kingdom and not just the ones that the Chancellor particularly favours, will not the prospects for funding for the arts outside London be pretty bleak?

Lord Gardiner of Kimble: My Lords, in fairness I do not think that the prospect for arts funding outside London is bleak. The increase in funding outside London is welcome. The noble Lord mentioned the Chancellor, but the Autumn Statement mentioned government support for £79 million of capital funding towards the construction of a new theatre and exhibition space, Factory, in Manchester, and the Great Exhibition, which is of course across all northern towns. The Government are also supporting the Glasgow School of Art, for example, following the devastating fire there. There are many examples of what is happening around the country.

Baroness McIntosh of Hudnall (Lab): Following on from the question by my noble friend Lord Howarth, has the Minister read the article in today’s Guardian by Charlotte Higgins about what has happened in Newcastle over recent years as a result of the local authority there seeking to withdraw all its funding from its local arts organisations? Does he agree that with the inexorable move towards greater regional autonomy, it is absolutely essential that the arts and culture are built into the core provision that any local authority should be expected to make available to its citizens?

Lord Gardiner of Kimble: My Lords, there are many good examples of cities and towns that realise that arts and culture are at the very heart of their opportunity for economic growth. I very much hope that Newcastle will take a different turn, because cities such as Derry/Londonderry, or Hull, which will soon be City of Culture, have recognised that there is an opportunity. I very much encourage Newcastle to think the same.

Lord Elystan-Morgan (CB): My Lords, in relation to broadcasting in Wales, will the Minister undertake that the Welsh broadcasting authority, S4C, will be given a special status and strength either by statute or in the new charter for the BBC, which comes into force on 31 December 2016? That would honour the solemn pledge given by the Prime Minister in the heady days following the Scottish independence referendum that Wales would be at the very heart of the devolution settlement.

Lord Gardiner of Kimble: My Lords, I will reflect on what the noble Lord said. I would want to think about it, but the devolution arrangements that we want to have in place are so that there is local identity and national identity. Welsh language and culture are very important.

Lord Cormack (Con): Does my noble friend accept that the arts are a unifying force throughout the United Kingdom? Does he also accept that there is considerable unease at the withdrawing of funds from

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musical education? Nothing is more calculated to bring young people together than a common love of music. This is a cause of real concern.

Lord Gardiner of Kimble: My Lords, I do not have the figures in front of me but I know that there are robust figures about what the DfE is undertaking in music education, the importance of music education and the opportunities it brings. When I have the figures in front of me I shall speak to my noble friend.

Baroness Thornton (Lab): My Lords, the Minister failed to answer the question put by my noble friend Lady Nye on 20 November, which concerned National Lottery funding for the arts and the current unequal impact this has on the arts in the regions. Does the Minister agree with those who argue that National Lottery funding for the arts should be allocated on an equal per capita basis?

Lord Gardiner of Kimble: My Lords, the funding for the lottery is on a capita basis but deprivation is part of its consideration.

Lord Lee of Trafford (LD): Does my noble friend accept that an individual new development in the regions, such as the Lowry in Salford, can have a much wider regenerative effect when it is coupled with, say, the Imperial War Museum of the North and the BBC? The wider regenerative effect of a cluster can be much greater in the regions than in, say, our capital city.

Lord Gardiner of Kimble: My Lords, again, there are very good examples of where regeneration and the arts run hand in hand. In Northern Ireland, for instance, the creative industries are worth half a billion pounds a year, and there are areas around Belfast cathedral where creative industries are centred, which is very much part of the regeneration of that great city.


Child Sex Abuse Inquiry

Question

3.06 pm

Asked by Lord Marks of Henley-on-Thames

To ask Her Majesty’s Government what progress has been made towards the appointment of a chairman for the independent panel inquiry into child sexual abuse.

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, the Home Secretary takes the appointment of the next chairman extremely seriously. Following the resignation of Fiona Woolf, the Home Secretary has sought the views of survivors’ groups to inform her on the appointment and she will update Parliament in due course.

Lord Marks of Henley-on-Thames (LD): My Lords, can my noble friend say whether the Government have approached the Lord Chief Justice to see whether a serving judge might be available to chair the inquiry—and, if so, with what result? Can he say what the Government’s position would be if a potential chair made acceptance of appointment conditional on having statutory powers to compel witnesses and disclosure of documents?

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Lord Bates: I am grateful to my noble friend for that question. With regard to the Home Secretary’s Statement on this matter on 3 November, we have since had 130 applications, some of which have been from serving judges. Therefore, it would be entirely appropriate for the Lord Chief Justice to be consulted on their availability to perform such a task if they were asked. With regard to the statutory footing, my right honourable friend the Home Secretary has said that if the chairman requested that the inquiry should be put on a statutory footing, she would take that into consideration. However, it does not have to be a judge for it to be statutory, because the statutory powers come from the Inquiries Act 2005.

Lord Morris of Aberavon (Lab): My Lords, given the catalogue of mishaps in the appointing of a chairman, does the Home Secretary personally see a person she is minded to appoint as chairman?

Lord Bates: Part of the issue here is that because of a series of announcements and revelations which brought about huge concern, there was a desire to move very quickly to establish the inquiry. The important thing, we recognise now, is to put survivors’ groups, and the confidence of those groups, at the heart of this, which is the reason the Home Secretary has met survivors’ groups three times—on 3, 20 and 25 November—and indeed is meeting them today.

Baroness Newlove (Con): My Lords, while we are discussing who is to be the chairperson for this inquiry—it is important that we get the right person—my concern is to support the victims in the mean time. What assurances can the Minister give about the support that will be provided, because it is not right through the bureaucratic processes to ask these victims what has gone on in their lives while they are being hit by barriers and not being given the right support and recognition of what they have gone through?

Lord Bates: My noble friend is absolutely right. I also pay tribute to her work as the Victims’ Commissioner, which she carries out assiduously. Of course more needs to be done to help the victims. We are consulting with the Department of Health to find out what additional help we can provide, and in the interim we will be announcing a further package of £2 million of support for victims’ groups in the ongoing discussions.

Lord Rosser (Lab): We seem to be getting nowhere fast on this one, which is in marked contrast to the successful work done by my noble friend Lord Harris of Haringey on campaigning to close the loopholes on soliciting sexual material from a child—an issue which the Government have at last decided to take on board. Frankly, that they have still failed to find a chairman suggests that suitably qualified candidates are perhaps now being put off by the inevitable trawling through their personal lives, backgrounds and families by the media which the Government’s ineptitude has ensured will now occur. Can the Minister tell us why the Home Office failed to carry out basic background checks on Fiona Woolf, having had the first appointee stand

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down? Further, while I think the Minister has said that the survivors and victims of abuse are being consulted on the issue of the new chairman, can he say whether the terms of reference and the format of the inquiry are also being discussed with them?

Lord Bates: The noble Lord’s latter point is of course central to the discussion with the survivors. They want to have confidence that individuals can be compelled to give evidence and that that evidence will actually be available to them. Perhaps I may say that it is a bit unfortunate for the noble Lord to take that tone in relation to the appointments. Both the people who were appointed to the role of chair are eminently qualified to do the work, but the question mark was over whether they would command the confidence of the survivors’ groups. It became apparent that that was not the case, and that is the reason the Home Secretary is going to the lengths that she is to listen to them now.

Baroness Walmsley (LD): My Lords, when consulting with potential candidates for the chair, will the Home Secretary consider the length of time that that person will be available for the inquiry? We must bear in mind the fact that the very nature of the inquiry means that various new issues probably will arise during the course of the panel’s investigations, and they will need to be given proper consideration. She is going to need someone who can be available for really quite a long time.

Lord Bates: That was one of the reasons why the panel was set up in its current form for the initial period. It wanted to draw on the excellent work that had been done by Ann Coffey, Alexis Jay and the NSPCC, among others, who had produced literature and evidence. We did not want the panel to reinvent the wheel but rather to get on and make sure that our institutions are sound, that victims’ voices are heard, and that we take action to ensure that these things could not happen again. The emphasis is now on speed. We want to get this done, but obviously the work must be carried out with the confidence of the survivors’ groups.

Keeping and Introduction of Fish (England and River Esk Catchment Area) Regulations 2015

Water Industry (Specified Infrastructure Projects) (English Undertakers) (Amendment) Regulations 2014

Motions to Approve

3.13 pm

Moved by Lord De Mauley

That the draft regulations laid before the House on 7 and 11 November be approved.

Relevant documents: 13th and 14th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 8 December.

Motions agreed.

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Single Source Contract Regulations 2014

Motion to Approve

3.13 pm

Moved by Baroness Jolly

That the draft regulations laid before the House on 29 October be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument). Considered in Grand Committee on 8 December.

Motion agreed.

Electricity Capacity (Supplier Payment etc.) Regulations 2014

Motion to Approve

3.13 pm

Moved by Lord Gardiner of Kimble:

That the draft regulations laid before the House on 10 November be approved.

Relevant document:13th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 8 December.

Motion agreed.

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2014

Motion to Approve

3.14 pm

Moved by Lord Popat

That the draft regulations laid before the House on 11 November be approved.

Relevant documents: 14th Report from the Joint Committee on StatutoryInstruments, 15th Report from the Secondary Legislation Scrutiny Committee.Considered in Grand Committee on 8 December.

Motion agreed.


Small Business, Enterprise and Employment Bill

Order of Consideration Motion

3.14 pm

Moved by Baroness Neville-Rolfe

That the Bill be committed to a Grand Committee, and that it be an instruction to the Committee that they consider the Bill in the following order:

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Clauses 1 to 39, Clauses 71 to 74, Schedule 2, Clauses 75 to 78, Schedule 3, Clauses 79 to 81, Schedule 4, Clauses 82 to 91, Schedule 5, Clauses 92 to 94, Schedule 6, Clauses 95 to 108, Schedule 7, Clause 109, Schedule 8, Clauses 110 to 123, Schedule 9, Clauses 124 to 130, Schedule 10, Clauses 131 to 141, Schedule 11, Clauses 142 to 151, Clause 40, Schedule 1, Clauses 41 to 70, Clauses 152 to 158.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con): My Lords, further to our Second Reading debate on 2 December, I now beg to move the commitment Motion for the Small Business, Enterprise and Employment Bill. This has been agreed through the usual channels. The Motion sets out that the Bill will be taken in Grand Committee. Furthermore, given that Clause 42 was added to the Bill only at Commons Report stage by way of a government defeat, the Order of Consideration Motion sets out that Part 4 on pubs will be taken after Part 11 on employment.

As I set out at Second Reading, the Government have accepted the principle that there should be a market rent-only option for tied pub tenants. However, the clause will require some amendments to ensure that it works correctly, is consistent and mitigates some potential unintended consequences. A later consideration in Committee will allow everyone more time to consider these important points. I welcome the commitment from the noble Lord, Lord Stevenson, at Second Reading to work with the Government to ensure that the clause works effectively. I look forward to support for the commitment Motion.

Lord Stevenson of Balmacara (Lab): My Lords, I thank the Minister for repeating the assurance she made at Second Reading that the Government accept the principle of the introduction of a market rent-only option for tenanted pubs. We understand the reasons for wishing to reorder consideration of the Bill and I confirm that we are very happy to work with the Government to ensure that this option is made workable.

Motion agreed.

Social Action, Responsibility and Heroism Bill

Report

3.16 pm

Relevant document: 3rd Report from the Joint Committee on Human Rights

Clause 2: Social action

Amendment 1

Moved by Lord Lloyd of Berwick

1: Clause 2, leave out Clause 2

Lord Lloyd of Berwick (CB): My Lords, there are many reasons why Clause 2 should not stand part of the Bill, but to my mind the main objection is also the simplest: it serves no useful purpose. The mischief at which the clause is aimed is already covered by existing

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law. The mischief in question, as defined by the Lord Chancellor in the other place, is that volunteers are being deterred from volunteering by fear of being sued for negligence. That is the very same point specifically covered by Section 1 of the Compensation Act 2006, passed less than eight years ago.

The whole purpose of that section was to encourage people to undertake what the section calls, “desirable activities”. The whole purpose of Clause 2 of the Bill is to encourage people to act,

“for the benefit of society”.

Those are two ways of saying exactly the same thing. Nobody has yet been able to detect any difference between them. Indeed, the Lord Chancellor said that Clause 2 is not intended to change the existing law, so why do we need another piece of legislation covering exactly the same ground now?

The noble Lord, Lord Faulks, accepted that:

“Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act”,

but he added that,

“the approach that it takes is different”.—[

Official Report

, 4/11/2014; col. 1573.]

He did not explain exactly what he meant by the approach being different. When pressed, he said that the 2006 Act had been “ineffective”. However, the only evidence relied on for that assertion—literally the only evidence—was a survey carried out about eight years ago. All it showed was that 47% of a very modest sample, some 300 people at most, said that there was a risk of being sued and that that risk was an issue to be considered. That survey was carried out in 2006-07, before Section 1 of the Compensation Act could possibly have had any effect, so how can it be relied on as showing that Section 1 of the 2006 Act has been ineffective? At the time of that survey, it had not had time to take effect.

A recent report produced by the Joint Committee on Human Rights considered the evidence in support of the Government’s case for fresh legislation in this field. It concluded that the only evidence was almost entirely anecdotal. It said that such evidence was not a sound basis for legislation, and that must surely be right. We now have before us a clause for which there is no evidence of any need covering exactly the same ground as Section 1 of the Compensation Act, which was passed less than eight years ago, and covering the ground already covered by the common law. In negligence cases, judges have always had regard to the matters referred to in Clause 2.

If that was not enough to condemn the clause—although I suggest that it is—the National Council for Voluntary Organisations has recently said that this clause, even if it is to form part of the Bill, will have very little, if any, effect. Indeed, that was the Government’s own case. Paragraph 23 of their impact assessment states that any reduction in claims for negligence will not be substantial.

If, as I suggest, these reasons are nothing like enough to justify the inclusion of this clause, one is driven to ask: what is the real reason the Lord Chancellor is bringing forward this unnecessary clause for our approval? There can be no doubt about the answer to

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that question, because the Lord Chancellor himself said it over and over again in the other place. The real reason is that the Lord Chancellor wants to send out, as he put it, a strong signal that if people are trying to do the right thing—he used that sort of phraseology over and over again—the law will be on their side. In other words, the justification for including this clause in the Bill is nothing other than a publicity exercise on the part of the Government. If that is the case, and I suggest that it is, it is a flagrant misuse of the legislative process. The purpose of legislation is to make new law or to change existing law so that it can be enforced in the courts. This clause does not purport to do either of those things. It could not be enforced by the court, which is why it will be treated with derision when it comes before the courts—a word that was used by a recent Solicitor-General, Sir Edward Garnier, speaking from the government Benches in the other place. The clause should be rejected on that ground, if none other.

Finally, I should mention points made during the debate in Committee. The noble Lord, Lord Hodgson of Astley Abbotts, who I am glad to see in his place, is in favour of Clause 2. He was chair of the task force which published in 2011 the report Unshackling Good Neighbours. His view is obviously, therefore, entitled to great weight on that ground. I hope, however, that he will forgive me for saying that he did not really answer the point that Clause 2 covers exactly the same ground as Section 1 of the Compensation Act 2006, which should be given much more time to take effect.

On the other hand, the noble Lord, Lord Blair, said that, while he was broadly in sympathy with the Government’s objective, this was, as he put it,

“frankly, a lousy way to do it”.—[

Official Report,

18/11/14; col. 404.]

It was smoothing over all the difficulties with words that have very little meaning. The noble and learned Lord, Lord Hope, went further. He was extremely critical of the drafting because of the use of the same word, “person”, in Clauses 2 and 4 to cover two entirely different persons. He said it was a great pity that the Government had not faced up to the real problems in this area. As a result, he said, he was deeply troubled by the clause as it stands.

For all these reasons, I hope the Government will think again before pressing ahead with this unnecessary clause. I beg to move.

Lord Hodgson of Astley Abbotts (Con): My Lords, the noble and learned Lord was kind enough to say some nice things about my report, and I reciprocate by saying that I have had the pleasure of serving under his chairmanship of various committees, and he has always been a punctilious and perceptive chairman. He is particularly kind in being ready to listen to and appreciate the views of those of us who are not learned in the law.

I hope that he will forgive me, but, once again, I cannot support his proposal this afternoon, and I urge my noble friend on the Front Bench not to do so either. We had a pretty thorough discussion of this issue in Committee on 18 November, and I do not

15 Dec 2014 : Column 16

intend to repeat the remarks I made then. As I understand it, and as I understood then, the noble and learned Lord is concerned about interplay between this piece of legislation and the Compensation Act 2006. I understand his desire for legal clarity and legal purity, but I have another objective, and that is of legal connectivity.

The report that I produced for the Government, Unshackling Good Neighbours, to which he kindly referred, looked in some depth at what was inhibiting people from getting involved in society and acting as a trustee, and whether they feared potential legal consequences. We received examples in sufficient numbers, which cannot simply be dismissed as anecdotal—a term that I sometimes feel is somewhat patronising. The noble and learned Lord sought to reassure the House that, if a case came to court, the court would throw it out, would, in his phrase, “have regard for the circumstances”. With respect, he may have overlooked the effect on an individual of the agonising, expensive, lengthy and psychologically depressing process of preparing the case—this against the background that, in the event, the court may not throw the case out.

I continue, therefore, to believe that this legislation sends an important signal—there I agree with the noble and learned Lord. This signal may seem unnecessary in the cool, calm, reflective atmosphere of the Inns of Court, but it has a greater resonance at the coalface of our civil society.

At another level, I am particularly looking forward to hearing the final determination of the Opposition’s position on this issue. The noble Lord, Lord Beecham, is a witty speaker and a very practised politician. He has made some disobliging remarks about the contents of the Bill, but he has so far not moved beyond that point. I suspect that, as a practical politician, in his heart of hearts, he knows that this is an issue that, in the minds of the public, needs addressing, and which this Bill does so address.

Before I conclude, I reiterate one other point that I made in Committee. I do not argue for a single minute that the Bill is a silver bullet as regards encouraging volunteering or greater participation in our society. There is much else to be done besides. Better insurance arrangements are crucial, as is the need to debunk myths about the legal consequences of day-to-day actions, too often assiduously and repeatedly promulgated in the press. However, even if the Bill is not a silver bullet, it is a bullet, and one well worth firing. I hope that my noble friend on the Front Bench will resist the noble and learned Lord this afternoon.

3.30 pm

Lord Pannick (CB): My Lords, we have had our fun on this Bill at Second Reading and in Committee. I, for my part, cannot remember a legislative proposal that has been the subject of more sustained ridicule and derision. We now come to the serious business. I have been studying and practising law for 40 years—not as long as many noble Lords, but a long time—and I cannot remember a more pointless, indeed fatuous, piece of legislation than Clause 2 of this Bill, with the possible exception of Clauses 3 and 4 of this Bill. As the noble and learned Lord, Lord Lloyd of Berwick,

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has explained and as we have previously discussed—and as is not in dispute—Clause 2 will not change the law. Courts already 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. I referred to the leading cases at Second Reading. The Minister has at no stage suggested that there are any cases in which courts have ignored such obviously relevant factors.

What then is the point of Clause 2? As the noble and learned Lord, Lord Lloyd, has already explained, the Lord Chancellor, Mr Grayling, has been very clear. He wants Parliament to send a message. But if the object of the legislation is to encourage people to volunteer and to encourage heroism without people being concerned about possible litigation—the objective referred to a few moments ago by the noble Lord, Lord Hodgson of Astley Abbotts—Mr Grayling should buy a half-page advertisement in the Sun or the Daily Mail or, if he wants to reach younger citizens, open a Facebook page or set up a Twitter account, and simply tell people the obvious truth, that the law is already on their side. That would be a much cheaper and more effective way in which to communicate a message than to take this sad Bill through all its stages in Parliament.

It is simply ridiculous for the Government to suggest that people who are currently inhibited from volunteering by a fear of litigation are somehow going to step forward when they hear—if they do—that we have approved Clause 2 of the Bill. Mr Grayling cannot seriously think that around the dinner table tonight, or in the Dog and Duck public house, or anywhere, people will say to themselves, “I see that Clause 2 has passed its latest stages in the House of Lords. I look forward to its speedy enactment next year because then I will be much more willing to volunteer and act like a hero, my concerns about litigation having been removed”.

Lord Hodgson of Astley Abbotts: I am very grateful to the noble Lord for giving way. It is not just people in the saloon bar of the Dog and Duck who are influenced by this; it is also the professional advisers. In the example that we discussed in Committee, the problem was that many solicitors offering advice to people actually provide advice that might be changed by this legislation.

Lord Pannick: With great respect, there is even less justification if we are going to ask the question about professional advice from solicitors, because we are surely entitled to assume that solicitors are capable of understanding basic law. This is not complicated law: it is trite, obvious law that already protects those who volunteer and act as heroes.

It has been said at previous stages of the Bill that we often legislate in the hope of changing people’s behaviour. Reference has been made, for example, to the Race Relations Act. But what is different and what is exceptional about Clause 2 is that it does not purport to change the law one jot or iota. All that it will do is enable Mr Grayling to say that he is in favour of social action; and when we come to Clause 4, he will be able to say that he is in favour of heroism, as if the rest of

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us were not. I object to legislation being used by the Government to send what is no more than a political message.

In paragraph 125 of its excellent report, published last week, on the office of Lord Chancellor, your Lordships’ Constitution Committee stated that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

The Lord Chancellor ought to understand that it is part—an important part—of the rule of law that the statute book has a role and a purpose: it is a purpose distinct from a party conference speech or a party election broadcast. Clause 2 simply debases the parliamentary currency and it therefore undermines the rule of law. If the noble and learned Lord, Lord Lloyd of Berwick, decides to test the opinion of the House on Clause 2, he will certainly have my support.

Lord Blair of Boughton (CB): My Lords, I spoke in Committee in support of the noble and learned Lord, Lord Lloyd, and I am not going to repeat what I said then. I might take issue with the noble Lord, Lord Hodgson, about this matter being discussed in the silent halls of the Middle Temple. If you give ordinary police officers, firemen and ambulance crews two sets of words about the same thing, you are going to cause a lot of confusion a long way before it gets to the Middle Temple.

In the gap since we spoke about this in Committee, this law has achieved something that I have not seen in this House before. I know I have not been here that long, but I have never heard of a particular statute being used as an example in another discussion altogether when it has not even been passed. In the debate put forward on 4 December by the noble Lord, Lord Foulkes of Cumnock, about the procedures and practices of the House, this Bill got not just one but two mentions. It was mentioned by the noble Lord, Lord Butler, who is in his place next to me, and by the noble Lord, Lord Dykes. The noble Lord, Lord Butler, said that,

“we might be saved from legislation such as the absurd Social Action, Responsibility and Heroism Bill”.—[

Official Report

, 4/12/14; col. 1495.]

Later, the Bill was described as,

“a badly drafted, silly Bill that is all to do with ‘manifesto-itis’ rather than any deep legislative urge on behalf of the Executive”.—[

Official Report

, 4/12/14; col. 1499.]

I do not think we should proceed with this matter.

Lord Hope of Craighead (CB): My Lords, perhaps I may return briefly to the point that I made in Committee, which is directed to the point made by the noble Lord, Lord Hodgson, about the solicitor advising—no doubt—an employer. The problem to which I drew attention was where somebody such as a fireman, police officer or some other person in the emergency services wanted to take the kind of action for the benefit of society that is talked about in Clause 2, but his superior officers said, “No, you can’t, because if you do that, my organisation is liable to be sued”.

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My point is that Section 1 of the previous statute deals with outcomes and separates the outcome from the person who is being sued. The problem with this Bill is that it links irrevocably and inextricably the person who is being sued with the person who is acting. With great respect to the noble and learned Lord, Lord Lloyd of Berwick, I do not think that this clause and the section deal with precisely the same thing. I think that this is a much narrower clause, dealing with a particular part of the subject. Therefore, it just adds to confusion when we have an existing piece of legislation which covers all the aspects and is perfectly serviceable to then come along with something which covers only part of it.

When the Minister replies, I hope that he will say why the Government have not taken the opportunity to broaden this clause so that it covers precisely the same ground as the existing legislation, because to have two pieces of legislation, one half-baked and one dealing with the whole thing, just adds to confusion. It is a great shame to be invited to pass a measure of that kind.

Lord Elystan-Morgan (CB): My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.

There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.

Lord Walker of Gestingthorpe (CB): My Lords, in speaking in support of this amendment, I draw attention to a matter which I believe to be of general importance and relevance to all the contentious amendments before the House this afternoon, but which has not, I believe, been referred to at all in previous debates on this Bill either in this House or the other place—namely, that the Law Commission has had no input at all into the Bill. The subject matter of the Bill is not on the published programme of current work of the Law Commission: nor—I checked this point a couple of

15 Dec 2014 : Column 20

days ago with the press officer of the Law Commission—have there been any informal consultations or amendments concerned with the Bill. Neither the substance of the Bill nor its drafting has had any input at all from the Law Commission. Yet this is a Bill which is said to make significant changes in the common law.

Whether it does, indeed, make significant changes in the common law is highly contentious. Along with many of my noble and learned friends, I believe that it makes no significant change at all. However, on the hypothesis that it does make significant changes in the common law, it is eminently a matter of law reform which should be the subject of systematic and intense study by the Law Commission and a consultation with judges, the legal profession and the wider public, conducted by the commission. None of that has happened.

3.45 pm

It is ironic that next year sees the 50th anniversary of the establishment of the Law Commission by the Law Commissions Act 1965. “Law Commissions” is in the plural because there is the Law Commission for England and Wales and the Scottish Law Commission, which of course is now devolved. The Bill that became the Law Commissions Act 1965 was introduced by the then Lord Chancellor, Lord Gardiner, as the “jewel in the crown” of his programme of law reform. The Second Reading of that Bill, in your Lordships’ House, took place on 1 April 1965 and Hansard shows that it was a quite memorable debate. Lord Gardiner made a long and eloquent speech, towards the end of which he said:

“My Lords, our law will never be put into a proper state unless and until there is a body of men”—

I am sure the Lord Chancellor did not intend to exclude women—

“whose sole duty it is to submit the whole of our law to a systematic and continuous review—and that is the object of this Bill”.—[

Official Report

, 1/4/65; col. 1152.]

There was widespread support for the Bill on all sides of the House. Two former Lord Chancellors spoke: Viscount Dilhorne and Viscount Simonds, who was then 83 years of age, or thereabouts. Several Law Lords spoke, including three who were among the most distinguished judges in the second half of the 20th century: Lord Wilberforce, making his maiden speech, Lord Denning and Lord Reid. Lord Wilberforce drew a distinction between what he called “true law reform” and the amendment of taxing statutes—which is inevitably technical and in almost continuous process—and what he referred to as statutes concerned with social questions. He said these were,

“matters which are really those of social policy and not law reform at all—for example, questions dealing with the eviction of tenants from houses, or leasehold enfranchisement. These are matters of social policy which, once the policy is decided, can perfectly easily be dealt with by the lawyers”.—[

Official Report

, 1/4/65; col. 1173.]

Those are the sort of matters which may not necessarily call for intervention or participation by the Law Commission, but the reform of the common law is quite different. I must not put it too high, but it seems to me to come close to a constitutional issue if, nearly 50 years on from the setting up of the Law Commission, reform of the common law is a matter on which the commission is bypassed completely.

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This is underlined by a further, much more modest, statute. The Law Commission Act 2009 made two changes, specifically directed to the relationship between the Law Commission and Parliament. On 25 March 2009, in another place, the Lord Chancellor, Mr Jack Straw, had said:

“Good law is imperative for accessible and modern constitutional arrangements. For 40 years the Law Commission has played a vital role in that respect, but I intend to strengthen its role by placing a statutory duty on the Lord Chancellor to report annually to Parliament on the Government’s intentions regarding outstanding Law Commission recommendations, and providing a statutory backing for the arrangements underpinning the way in which Government should work with the Law Commission”.—[Official Report, Commons, 25/3/09; col. 23.]

That measure had originally been two clauses in the draft Bill—which I think was originally called the Constitutional Renewal Bill but was changed to the Constitutional Reform Bill. However, it was decided—very sensibly, if I may say so—that those clauses should form the subject matter of a separate Bill, which was introduced, with the support of the Government, by none other than my noble and learned friend Lord Lloyd of Berwick. In this House, at Second Reading of the Bill that become the 2009 Act, the Minister, the noble Lord, Lord Bach, said:

“It is a great privilege for my department to be associated with the Law Commission. The commission, as has been said on all sides, makes a significant contribution to law reform, which is greatly valued by the Government, those in the legal and judicial world and beyond”.—[Official Report, 24/4/09; col. 1737.]

It is a matter of great regret that on a Bill of this sort, which claims to be making significant changes to the common law, there has been no input or advice from the Law Commission, which is, in the words of Lord Gardiner, who was the Lord Chancellor in 1965, “a body of men”—and, of course, women,

“whose sole duty is to submit the whole of our law to a systematic and continuous review”.—[

Official Report

, 1/4/65; col. 1152.]

This Bill is not the right way to reform the common law. It will make it neither clearer nor better.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I do not wish to appear conspicuous by my silence on this Bench but will speak very briefly indeed. I just want to give the House two brief citations from authorities past. The first states that the,

“principle …enshrined in section 1 of the Compensation Act 2006 … has always been part of the common law”.

That was Lord Justice Jackson in 2010. The following year, Lady Justice Smith—now Dame Janet Smith—in another case in the Court of Appeal quoth:

“Section 1 of the Compensation Act 2006”,

does

“not add anything to the common law position”.

Do we really want our judges, next year or the year after, to have to add to those citations? Nor will Sections 2 and 4 of whatever Act this will become in 2014 or 2015 add anything. That is the position in regard to those clauses by concession. Unlike my noble and learned friend Lord Walker of Gestingthorpe, I do not understand for a moment the Government suggest to that those clauses make the faintest change whatever to the existing law. Clause 3 conceivably raises other, but no less objectionable, considerations. However, Clauses 2 and 4 change nothing.

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Lord Beecham (Lab): My Lords, less than a week ago we debated the Government’s amendments to the Criminal Justice and Courts Bill, and inflicted defeats in relation to proposals affecting young offenders and, even more significantly in terms of their constitutional importance, two changes to the procedures for judicial review.

Today we return to this Bill, a piece of vanity legislation if ever there was one, which, except for Clause 3—as we have heard—adds nothing to the provisions of the Compensation Act 2006, which, by implication, it purports to amend. I concur entirely with the critique of the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Pannick, and others of this muddled attempt to deal with a problem for whose very existence there is a complete lack of evidence—a Bill that is very badly drafted, in any case.

At Second Reading, I acknowledged that the House is properly cautious about declining to give a Second Reading to Bills emanating from the Commons, and there is a similar reluctance totally to destroy Bills in the way in which the amendments of the noble and learned Lord, Lord Lloyd, would achieve if passed, which would leave the Bill consisting of only its title. However, if we were to go so far on a Bill as feeble as this, it would actually strengthen the hand of the Lord Chancellor in relation to the vastly more important and damaging provisions of the Criminal Justice and Courts Bill, which we have sent back to the Commons with our amendments. I fear that he would not hesitate to cast this House as a recalcitrant and obstructive group, placing us alongside the left-wing pressure groups and campaigners which he conjured up as the phantom proponents of judicial review and opponents of his attempts to undermine it. It would, I suggest, make it more unlikely for the Lord Chancellor to exercise political responsibility in relation to the amendments on secure colleges and JR by accepting them, or, should he fail to do so, for MPs on the Government Benches to demonstrate political heroism in a just cause by voting for them.

For those reasons, I regret that I cannot advise opposition Members to support the noble and learned Lord’s amendment to Clause 2, nor his amendment to Clause 4—in any case, the Government have tabled an amendment to it that reflects one moved by the noble Lord, Lord Pannick, in Committee, to which I added my name. I do that with regret because I share entirely the noble and learned Lord’s criticisms of the vacuous nature of the Bill; but it seems to me, for the reasons that I have given, unwise for the House to join him in the Lobbies. I say that with the more trepidation as I understand that he is the chairman of the East Sussex Rifle Association; I fear that I may end up as a target—if not for the noble and learned Lord, then for some of the members of that association.

There is nevertheless a serious issue as to the role of the House in these strange circumstances. However, in relation to Clause 3, I will be asking the House to agree that it should not stand part of the Bill, essentially because that clause seeks to effect a change in the law that is unacceptable for reasons which I will adduce

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when we come to debate that amendment. However, I fear that I shall not be joining the noble and learned Lord in the Lobby—

Lord Pannick: Is the noble Lord saying that the Opposition are not going to support the noble and learned Lord, Lord Berwick, because, although they think that Clause 2 is absolutely terrible, it is not the worst legislative proposal that Mr Grayling has brought forward in this Session?

Lord Beecham: There is a lot of competition in that respect. I merely say that on this Bill it is not worth the House taking a position that is a departure from its normal practice. I genuinely fear that the Lord Chancellor will use such a vote to muster support against the much more serious amendments that we have sent back for the Commons to consider. That will not help us in sticking to those amendments, should they come back to us. That is why I will not be in either Lobby this evening if the noble and learned Lord decides to test the opinion of the House.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, in speaking against Clause 2 in Committee and in the debate today, the noble and learned Lord, Lord Lloyd of Berwick, has maintained that the clause adds nothing useful to Section 1 of the Compensation Act 2006 or to the existing common law and is therefore unnecessary. I take this opportunity to explain why the Government believe that the clause has an important purpose, which merits the support of the House.

The clause stems from our wish to ensure that people can feel confident about participating in activities that benefit others without worrying about what might happen if something goes wrong and they find themselves defending a negligence claim. Clause 2 sets out to provide valuable reassurance that if that happens, the court will take careful and thorough account of the context of the defendant’s actions when reaching a decision on liability. Rather as the noble Baroness, Lady Ashton, said when introducing the provisions of the Compensation Act, as I have quoted before:

“They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.—[Official Report, 28/11/05; col. 81.]

So two separate Governments have identified a fear.

It is said that there is no solid evidence and that such evidence as there is is anecdotal. I agree with my noble friend Lord Hodgson: it is rather hard to identify and amass solid evidence about this. However, I am not sure that many people would disagree with the proposition that we have a culture where litigation hovers over many activities like a shadow and can genuinely inhibit the sort of things that most people would consider to be desirable.

4 pm

Although the primary concern underlying this clause is to ensure that voluntary activities are encouraged and supported, we see no reason to restrict its application to such cases. In common with other clauses in the Bill, Clause 2 is therefore broadly drafted so that it will

15 Dec 2014 : Column 24

apply in a wide range of situations where people act for the benefit of others, whether they do so on a voluntary basis or in a paid capacity. As I indicated in Committee, this could, for example, include organised charitable activities such as running a village fete, or informal individual activities such as helping an elderly neighbour with their shopping. It could also cover workers such as teachers, doctors, and emergency services who act for the benefit of society as part of their jobs.

The idea that this provision might somehow have—I quote what was alleged in earlier debates—“horrific unintended consequences”, is rather difficult to understand. As I have explained, the clause does not tell the court what conclusion it should reach and will not prevent a person engaged in socially beneficial action being found negligent if the circumstances of the case warrant it. It will be for the court to determine whether a person was acting for the benefit of society and, if so, what weight it should give to that factor in all the circumstances of an individual case. This will give the courts the maximum flexibility to reach decisions that are fair and just, while sending a strong signal to reassure the public that they will consider, in all cases, the wider context of the defendant’s actions prior to reaching a conclusion on liability.

The noble and learned Lord, Lord Lloyd, said that the clause was not necessary because it covers identical ground to Section 1 of the Compensation Act 2006. In fact, Clause 2 takes a different and firmer approach. It requires the courts to consider, in every case, whether a person was acting for the benefit of society or any of its members. It also adopts a different emphasis by focusing more firmly and precisely on the actions of the defendant in the particular case, rather than on the general effect that a finding of negligence might have on others participating in similar activities. For these reasons, we think Clause 2 will provide greater reassurance than Section 1 of the 2006 Act. The noble and learned Lord said that it was too soon to tell whether the Act was working, particularly having regard to the evidence that was relied on by the Government. The noble Lord, Lord Pannick, said in earlier debates that the Compensation Act was working well. On the other hand, the noble Lord, Lord Beecham, said that Homer had nodded and that the Labour Party, in identifying this particular problem, had made a mistake: there was no such thing as a compensation culture, whatever may have been the perception.

We say that the need for further measures has been amply evidenced by the support for the Bill from voluntary organisations, such as the National Council for Voluntary Organisations, St John Ambulance, and the British Red Cross, which have made clear that their concerns over liability remain a real issue for many of their members. The plans that such organisations have indicated they have for publicising the Bill and spreading awareness of its provisions will ensure that our core message is transmitted widely and effectively. The noble Lord, Lord Pannick, suggested using Facebook or advertisements in newspapers. I am sure that those bodies are well experienced in knowing how best to convey the message to those they wish to receive it. He seemed to identify the more popular means of transmitting messages or information, presumably on the assumption

15 Dec 2014 : Column 25

that those who read the broadsheets or listen to the radio would not need any such reassurance. Perhaps he overestimates the bewilderment that many feel about the state of the law, particularly the state of the law of negligence. The principles are clear; their application to particular facts has often been a subject of uncertainty and criticism. During the debates, the noble Lord rightly referred to the fact that the basis of the Compensation Act was the House of Lords decision in Tomlinson, in which the noble and learned Lord, Lord Hoffmann, produced the seminal speech. That speech represented, he said, effectively—although couched in the most magnificent English—a statement of the obvious which then found its way into the statute book.

Of course, the House of Lords would have to consider it, meaning that someone had identified it as a difficult point. It had had to go from first instance to the Court of Appeal to the House of Lords. In these difficult cases on the margin, very often where there is a seriously injured claimant, finding the answer in a negligence case is difficult and there is nothing unworthy about Parliament setting out and identifying guidelines that should be taken into account and to which judges should have regard while still allowing them to approach cases on their particular facts.

The noble and learned Lord, Lord Walker, quite rightly reminded us of the immensely important role that the Law Commission has played and plays in the development of the law.

Lord Forsyth of Drumlean (Con): Can the Minister help a non-lawyer? Is it the Government’s policy that they are prepared to use legislation to send signals or make declarations of policy? That seems to me what is at the heart of this matter, not whether the courts have found it important to interpret that law as it stands.

Lord Faulks: I think there is something of both, in the sense that very often in the law of negligence, although the principles are clear, when identifying the answer to a particular factual case—one very much on the margins—a great deal of judicial time is spent identifying what is a duty of care, whether there is a breach of the duty of care and whether there is foreseeability. Extracting the principles from the morass of common-law cases is not easy. This Bill sets out in statutory form principles to which a judge may have regard. That is a legal process. It is also not, I suggest, inappropriate for some form of message—I do not like the word “message” but I think everybody in your Lordships’ House knows what is meant by that—or for some sort of guidance and reassurance to be given to the general population, so that they can act in a way they would like to act without the fear of uncertainty that accompanies litigation.

I was addressing the point made the noble and learned Lord, Lord Walker, about the Law Commission. He is right about the immensely valuable role it plays in making the law and how desirable it often is to have a proper review. He would accept, I am sure, that it is not a prerequisite for the making of law that the Law Commission has examined a particular area. In fact, the Compensation Act 2006 followed an inquiry by the Department for Constitutional Affairs. The committee

15 Dec 2014 : Column 26

had produced a report—I was a special adviser so I declare an interest—so it was not via the Law Commission. Valuable though that can be, there is a limit to the amount it can do in a particular timeframe because of the immense calls on its services. While not disagreeing with anything the noble and learned Lord has said, it does not, I suggest, prevent there being a change in the law, notwithstanding the fact that the Law Commission has not considered this matter specifically.

I suggest that this is an important, although not radical, declaration of the existing law. It sends an important note of reassurance. I accept that it may not be the most transformative Bill that has reached this House but that does not mean that it does not serve an important function. The noble Lord, Lord Beecham, continued his attack, which I have sustained now for approximately 12 months, on every proposition that the Government have put forward. I normally follow his arguments, which are lucid and clear. On this occasion, I am unable to follow his argument. However, I do not wish to stretch my already stretched synapses even further in an attempt to do so; I will simply accept what he says.

The Archbishop of York: My Lords, I am puzzled. Will the noble Lord tell us whether it is ever worthy to use a statute as a means of giving assurance? I thought that a statute was to state the law, not to assure somebody somewhere. That would be okay. It would be an amazing way of—you know what I mean.

Lord Faulks: I think I know what the most reverend Primate means. With respect, as I said on a previous occasion, describing a statute as sending a message is too simplistic a way of explaining what we do in Parliament. We do not legislate in a vacuum. For example, we identify particular issues, whether they are modern slavery or revenge porn, which became part of an amendment to the Criminal Justice and Courts Bill. We pass laws which serve the purpose of clarifying the law but they also reflect what people in society think we ought to be doing in Parliament. I rely on what my noble friend Lord Hodgson said about the desire for neighbours to be unshackled. We need more volunteers; we need people to be unshackled. This law may make a modest contribution and I ask the noble and learned Lord to withdraw his amendment.

Lord Pannick: Before the noble Lord sits down, perhaps I may ask him whether there is any precedent that he can cite for our legislating not to change the law but to provide reassurance.

Lord Faulks: I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.

Lord Lloyd of Berwick: My Lords, I thank noble Lords who have supported this amendment. I want to say a word about the contribution of the noble and

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learned Lord, Lord Walker of Gestingthorpe. He said that, as the Bill changes the common law, it ought to have been referred in the first instance to the Law Commission. I entirely agree that from time to time it has not been at all easy to discover what the government case has been, but their final position is that it does not change the common law in any way; it merely confirms what was already the common law and what was included as Section 1 of the Compensation Act 2006. I hope that that answers the noble and learned Lord’s difficulty.

So far as the rest is concerned, I shall say nothing more about the arguments put forward by the noble Lord in answer to the debate. They have already been dealt with very fully. However, I want to say a word about the attitude of the Opposition to the amendment. As I understood it until 2.15 pm this afternoon, the Opposition would be supporting the amendment. That was my clear understanding.

Lord Beecham: If the noble and learned Lord understood that, he misunderstood it, and if I have contributed to a misunderstanding, I apologise. It was never the Opposition’s position that we would support the noble and learned Lord. We were considering the position and I tried to contact him unsuccessfully over the weekend. Therefore, we have not resiled from the position that we previously adopted.

Lord Lloyd of Berwick: I am quite happy to accept that there must have been a misunderstanding. However, that was certainly my understanding of the position, just as my understanding of the position at Second Reading was that they would be supporting my amendment. I was wrong about that and I am wrong again. However, that still leaves the question of why on earth the Opposition are not supporting the amendment. After all, on the whole, it is the duty of the Opposition to oppose. If they found that they were against something—and I understood them to be against Clauses 2 and 4, just as they are against Clause 3—in the ordinary way they would oppose it.

However, I am wrong about that. The reason given for this seems to me to be entirely incomprehensible. The reason why the Opposition now do not want to oppose Clauses 2 and 4 is that if they did so while opposing Clause 3, that would then have some effect—which I really did not understand—on the attitude of the Lord Chancellor in relation to some other Bill; namely, the Criminal Justice and Courts Bill. That is a wholly irrational ground for an Opposition to act on. I would have thought it their duty, if they are against Clauses 2 and 4, to oppose them. They say, however, that, for reasons which I do not understand, they do not intend to take that view officially. I hope that at least some members of the party which is represented by those on the Opposition Front Bench who take that view will think differently.

Lord Cormack (Con): My Lords, surely my noble and learned friend, as I will call him on this occasion, has heard of the mugwumps, who sat on the fence with their mugs on one side and their wumps on the other.

15 Dec 2014 : Column 28

Lord Lloyd of Berwick: I am not sure that I fully understood. Perhaps I did not wholly hear what the noble Lord said. However, the arguments are now over, and there is really nothing left for it but to take the opinion of the House. I do not fancy for one moment that, in the absence of support from the Opposition on this clause, the amendment will be carried. However, in the interests of doing the right thing—those words which the Lord Chancellor kept on using—I ought to take the opinion of the House, which I now seek to do.

4.16 pm

Division on Amendment 1

Contents 77; Not-Contents 222.

Amendment 1 disagreed.

Division No.  1

CONTENTS

Alton of Liverpool, L.

Best, L.

Bichard, L.

Blair of Boughton, L.

Boateng, L.

Borrie, L.

Brown of Eaton-under-Heywood, L.

Butler of Brockwell, L.

Clancarty, E.

Clark of Windermere, L.

Condon, L.

Coussins, B.

Craigavon, V.

Eames, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Temple Guiting, L.

Falkland, V.

Fellowes, L.

Filkin, L.

Giddens, L.

Goldsmith, L.

Goodhart, L.

Grey-Thompson, B.

Hannay of Chiswick, L.

Harries of Pentregarth, L.

Harris of Haringey, L.

Hayman, B.

Healy of Primrose Hill, B.

Hope of Craighead, L. [Teller]

Howarth of Breckland, B.

Howe of Idlicote, B.

Howie of Troon, L.

Hutton of Furness, L.

Hylton, L.

Irvine of Lairg, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kinnock, L.

Lloyd of Berwick, L. [Teller]

Low of Dalston, L.

Maginnis of Drumglass, L.

Mar, C.

Masham of Ilton, B.

Mawson, L.

Meacher, B.

Morrow, L.

Noon, L.

Pannick, L.

Prescott, L.

Quirk, L.

Ramsbotham, L.

Rea, L.

Richard, L.

Rogan, L.

Rowlands, L.

Sandwich, E.

Scotland of Asthal, B.

Scott of Foscote, L.

Slim, V.

Smith of Gilmorehill, B.

Stern, B.

Stirrup, L.

Swinfen, L.

Taylor of Blackburn, L.

Walker of Gestingthorpe, L.

Wall of New Barnet, B.

Walpole, L.

Warnock, B.

West of Spithead, L.

Wigley, L.

Williams of Baglan, L.

Williams of Elvel, L.

Wilson of Tillyorn, L.

Winston, L.

Woolf, L.

York, Abp.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B.

Ashcroft, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Benjamin, B.

Black of Brentwood, L.

Blencathra, L.

15 Dec 2014 : Column 29

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brady, B.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Caithness, E.

Callanan, L.

Campbell of Surbiton, B.

Carrington of Fulham, L.

Cathcart, E.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Chisholm of Owlpen, B.

Coe, L.

Colwyn, L.

Cooper of Windrush, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Crickhowell, L.

Crisp, L.

De Mauley, L.

Deben, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Elton, L.

Empey, L.

Evans of Bowes Park, B.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goddard of Stockport, L.

Goldie, B.

Goodlad, L.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Helic, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Hollins, B.

Home, E.

Horam, L.

Howard of Lympne, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hussain, L.

Hussein-Ece, B.

James of Blackheath, L.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kakkar, L.

King of Bridgwater, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Ludford, B.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mobarik, B.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Northover, B.

O'Cathain, B.

Oppenheim-Barnes, B.

Oxford and Asquith, E.

Paddick, L.

Palmer of Childs Hill, L.

Palumbo, L.

Patel, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Pinnock, B.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

15 Dec 2014 : Column 30

Renfrew of Kaimsthorn, L.

Rennard, L.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rowe-Beddoe, L.

Scriven, L.

Seccombe, B.

Selborne, E.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Sherbourne of Didsbury, L.

Shields, B.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Suri, L.

Suttie, B.

Taverne, L.

Taylor of Holbeach, L. [Teller]

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Tordoff, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

Wakeham, L.

Waldegrave of North Hill, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wei, L.

Whitby, L.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

4.28 pm

Clause 3: Responsibility

Amendment 1A

Moved by Lord Hodgson of Astley Abbotts

1A: Page 1, line 12, leave out “generally” and insert “predominantly”

Lord Hodgson of Astley Abbotts: My Lords, Amendment 1A may be less controversial than the matter that we have just finished discussing, although in matters of the law you never quite know. The amendment was originally tabled in the name of my noble friend Lord Hunt of Wirral, and I added my name to it. My noble friend has had to travel to northern England today on business, so is unable to be here in time to move this amendment. I am moving it on his behalf.

The amendment is very simple: a one-word change to Clause 3, the clause entitled “Responsibility”, to which the noble Lord, Lord Beecham, referred earlier. It replaces “generally” with “predominantly”, so that the clause will read:

“The court must have regard to whether the person”,

demonstrated a “predominantly”,

“responsible approach towards protecting the safety or other interests of others”.

The question was whether the use of “generally” was sufficiently focused to achieve the appropriate balance in individual cases. The adverb “generally” has three definitions in the Collins English Dictionary. The first is “usually; as a rule”. The second is “commonly or widely”. The final one is,

“without reference to specific details or facts; broadly”.

15 Dec 2014 : Column 31

I suspect that what your Lordships’ House will wish the courts to consider, if this Bill passes into law, is whether the defendant will first claim that he was demonstrating an approach which on that occasion was in the main responsible in protecting the safety of others as opposed to the approach which usually, but not necessarily on that occasion, was responsible. Replacing “generally” with “predominantly”—we return to the Collins English Dictionary definition, which is,

“for the most part mostly and mainly”—

should provide the courts with the power to examine the approach of the defendant at the material time and avoid them having to consider the approach demonstrated at other times or taking the matter even wider, enabling them to take into account the approach followed other than that at the material time.

This Bill has an important role to play in reassuring potential volunteers, but equally it should not encourage behaviour which is thoughtless or irresponsible and thus puts others at risk. This change of word may better balance the two aspects, and I hope that the amendment will find favour with my noble friend. I beg to move.

Lord Beecham: My Lords, Clause 3 is the one clause in the Bill which the Government acknowledge embodies a substantive change in the law. In Committee, I moved an amendment to remove “generally” from the requirement on the court to consider whether,

“the alleged negligence or breach of statutory duty … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.

Neither at Second Reading nor in Committee did the Minister define the meaning of “a generally responsible approach”, and in replying to the debate in Committee he acknowledged that the term was “unusual” in statutory terms. Indeed, he indicated that he would,

“consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further”.—[

Official Report

, 18/11/14; col. 414.]

We await with bated breath the outcome of the Minister’s deliberations along with his response to the amendment tabled by his noble friend, who is seeking to ratchet up “generally” to “predominantly” in the proposed clause.

I have to say that neither term is satisfactory in terms of either definition, which is entirely lacking, or effect. Why should someone suffering damage through an act of negligence or breach of statutory duty be denied compensation on the grounds that the act or omission was in effect a first offence, or at any rate a rare offence? What, for that matter, constitutes a “responsible” approach? How does the Minister define those terms? Moreover, and crucially, the clause is not limited to social action, responsibility or heroism, terms which are in themselves undefined and undefinable, or to personal injury cases. We are dealing not just with safety but, in terms of the clause, with other interests. As I reported in Committee, the Minister in the House of Commons, Mr Vara, affirmed that the clause,

“could in principle be applicable in relation to other instances of negligence such as damage to property or economic loss where issues of safety may not necessarily be relevant”.—[

Official Report

, Commons, 20/10/14; col. 693.]

15 Dec 2014 : Column 32

Why should a negligent builder, medical practitioner, accountant, surveyor or even solicitor—I declare my interest—escape liability for what might even be catastrophic damage because he has been hitherto “predominantly” responsible? Negligence can lead to large losses outside the realm of personal injury. Is not the reality that this badly drafted clause is yet another concession to the insurance lobby, which ordinarily would of course stand behind the defendant in such claims?

Many Members of your Lordships’ House will have received an e-mail today from one of those pressure groups which so exercise the Lord Chancellor in relation to judicial review. In this case, the pressure group is one which we can be confident he entirely approves of: it is the CBI. Its curiously worded communication supports Clause 3 on the grounds that it,

“provides better protection against accidents for those firms—particularly the small and medium sized companies that already have good health and safety processes in place”.

Of course, it does nothing of the sort. It provides “better protection” against claims for negligence arising from accidents and it extends, of course, to large employers as well as medium-sized and small employers.

The e-mail goes on to suggest that,

“this clause will encourage the courts to recognise that safety is a shared responsibility”,

as if the courts do not already do so, and do not make findings of contributory negligence when a claimant fails to take proper precautions, or dismiss a claim when he is wholly responsible. Of course, again, the CBI ignores the fact that the clause extends to all types of negligence, including by small and medium-sized businesses which might well find themselves a victim of negligence other than of the kind leading to personal injury.

As the CBI’s response eloquently exemplifies, this whole Bill has all the hallmarks of being drafted by the Lord Chancellor on the back of a small envelope. This clause, in particular, is deeply objectionable. Unless the Minister is prepared to abandon the clause, I shall invite the House to divide and consign the envelope to the parliamentary waste bin.

Lord Pannick: My Lords, I add my support to what has been said by the noble Lord, Lord Beecham. Clause 3 is very troubling for two reasons. First, the defendant may have shown a partially irresponsible approach towards protecting the safety or other interests of others, that partially irresponsible approach may be the cause of the accident and it may be entirely inexcusable. Why, then, is the generally responsible approach of the defendant in other respects of any relevance whatever? The amendment in the name of the noble Lord, Lord Hodgson of Astley Abbotts, would not cure this defect.

The second troubling aspect of Clause 3 is that it does not appear to be confined to the subject matter of the Bill, social action and heroism. I would be very grateful if the Minister would explain whether Clause 3 was intended to be confined to the subject matter of the Bill, or whether, as its wording suggests, it is to have a broader aspect. For these reasons, if the noble Lord, Lord Beecham, divides the House, he will have my support.

15 Dec 2014 : Column 33

Lord Goldsmith (Lab): My Lords, I support what has been said by my noble friend Lord Beecham and by the noble Lord, Lord Pannick. As a practising lawyer, the idea of having to bring this into effect and applying it in the context of an actual case fills me with horror. I do not know how one would start to go about it. I do not see the benefit the clause brings and I see grave dangers in its application. I was particularly taken by the comment of my noble friend Lord Beecham that this does not even necessarily apply to cases of personal injury or injury of that sort—it can apply to economic loss and to many other sorts of cases. I do not see how this sort of drafting can conceivably be appropriate for such cases.

Lord Woolf (CB): Will the Minister, when he comes to reply, assist me? I do not see how this clause will apply if there are two defendants, one of whom has shown a generally responsible approach towards protecting the safety or other interests of others and the other who has not exercised that approach. It seems to me to be very worrying from that point of view. I always understood that it is not your general behaviour that the court has to look at in order to find whether you are negligent but your behaviour on the particular occasion when you are said to have committed a tort. If one is going to look at the person’s general behaviour in deciding actions for tort, these are going to take a lot longer to resolve than they have hitherto.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I, too, support this amendment. The Bill as a whole is manifestly directed—all the earlier debates have indicated this—to encouraging people to volunteer and take part in generally beneficial activities. As the noble Lord, Lord Beecham, made plain, this clause would apply if you have a claim against your accountant. Perhaps he is a wonderful accountant and has looked after everybody else enormously skilfully over the years, but on this particular occasion when he is looking after your affairs, Homer nods, falls fast asleep and costs you an enormous amount of money, for whatever reason—perhaps he was going through a messy divorce at the time. He is insured. Is it really to be suggested that what he has done for everybody else is relevant and can deprive you of your claim? It is absurd.

Lord Hope of Craighead: My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.

Lord Faulks: My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.

15 Dec 2014 : Column 34

The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.

The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.

As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.

In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.

The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.

4.45 pm

The Federation of Small Businesses has also welcomed the Bill, as well as the CBI—as referred to by the noble Lord, Lord Beecham. The national chairman of the FSB, John Allan, said that he,

15 Dec 2014 : Column 35

“hopes this proposed legislation will help protect hardworking business owners against irresponsible claims”.

The Government believe that it must be right to discourage such claims and, in the event that such a claim is brought, to require the courts to take into account the general approach of the defendant to safety during the course of the activity in question.

To those in your Lordships’ House who still have concerns about the possible effects of the clause, I emphasise that the provisions do not direct the courts as to the conclusion they should reach and will not prevent a finding of negligence or breach of statutory duty where this is justified. I am confident that the courts will continue to take a common-sense approach to these cases and will exercise the flexibility which this clause gives them to reach a just decision in all the circumstances of each individual case.

That is also my answer to the question raised by the noble and learned Lord, Lord Hope, about contributory negligence. The courts often have to go through an evaluative process when looking at a case of negligence and deciding the question of whether there is contributory negligence and, if so, what percentage. They, I suggest, will not be prevented from performing such an exercise by these provisions.

Likewise, in deciding, when there are two defendants, if one or both of them should be found liable, the courts will examine the circumstances in a way that they do with the law as it currently is. They will be invited to have regard to the matters in Clause 3, but that should not make it particularly difficult, I respectfully suggest, to come to a just decision on the facts.

Lord Woolf: I am grateful to the Minister for giving way. I still, I am afraid, cannot understand whether, where there are two defendants, one who can rely on this Clause 3, and one who cannot rely on it, he is saying there could be a situation where it would be proper for a judge to say that one defendant walks out of court scot-free, even though he caused the accident, and the other is found guilty.

Lord Faulks: The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.

By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of

15 Dec 2014 : Column 36

claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.

As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.

Lord Pannick: Is there some time period over which the court is expected to assess the generally responsible approach of the defendant? How far does this go back? Has the department made any assessment of how much longer court cases are going to take and how much more expensive they will be if the judge has to assess all those matters?

Lord Faulks: With great respect to the noble Lord, considering the activity in question focuses the judge on the activity that is said to have caused the particular injury, or tort, which has eventuated.

Lord Beecham: My Lords—

Lord Faulks: Perhaps I could finish answering this question before I answer the next one. That would necessitate a judge looking at the activity in question and deciding whether, in relation to the activity in question that is being examined by the court, a generally responsible approach was exhibited by the defendant. What that would not involve would be going through his or her safety record for the previous 10 years, if that is what is being suggested. In fact, as the noble Lord may or may not know from personal injuries claims, very often disclosure of the history of accidents in a factory or documents on previous injuries is done in conventional personal injury claims, as the law is now—there is nothing different about that. So with great respect I do not accept the noble Lord’s suggestion that there would be a lengthening of trial or a greater complication in those terms.

Lord Beecham: The Minister must forgive my impatience again. He has concentrated on personal injury claims, but he would concede that the clause

15 Dec 2014 : Column 37

does not restrict itself to such claims. Could he identify some of the other sorts of cases, as his ministerial colleague did in the House of Commons, the non-personal injury cases—contract cases and matters of that kind? Would he say that, if a defendant had demonstrated an approach towards protecting the safety of his staff, that suffices to let him escape from damage to other interests of others? What sort of other interests do the Government intend to be covered by the provisions of the clause?

Lord Faulks: The Bill is described in its preamble as being to make,

“provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.

I do not see any reference to breach of contract there. But the noble Lord is right in the sense that Clause 3 refers to,

“a generally responsible approach towards protecting the safety or other interests of others”.

That would open the door to the possibility of other interests being considered. Having regard to the general structure of the Bill, I would not wish to add anything to what was said in the House of Commons. I imagine that it is going to be focused primarily on conventional personal injury cases.

Lord Goldsmith: I am sorry, but I wonder how the noble Lord can make that observation. If a claim comes before the courts, where there is an allegation of breach of statutory duty or negligence, which as he would readily concede could be negligence arising from a contract, how is that clause to be avoided? For example, the accountant says, looking at the wording of Clause 3, “The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record”. How do the words in the clause prevent that from being done?

Lord Faulks: Let me deal with the hypothetically negligent accountant. As I said in answer to previous questions, the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says.

Lord Goldsmith: It would not be this tax return, surely, but the activity of advising on tax returns generally.

Lord Faulks: I respectfully disagree with that interpretation because it is concerned with the activity in question,

“in the course of which the alleged negligence or breach of statutory duty occurred”.

It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.

I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible”

15 Dec 2014 : Column 38

approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—

Lord Hope of Craighead: My Lords—

Lord Faulks: Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.

Lord Hope of Craighead: I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:

“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.

Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.

Lord Faulks: Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,

“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.

It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,

“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,

the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.

I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If

15 Dec 2014 : Column 39

the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.

5 pm

The amendment tabled by the noble Lord, Lord Beecham, prior to Committee would have removed the word “generally” from the clause without replacement, as he said earlier. This would have removed the obligation on the court to consider the organisation’s overall approach to safety in the course of an activity, which we believe should be a relevant factor. While we cannot therefore agree to a substantive shift in policy, I recognise that concerns have been expressed about whether the phrase “generally responsible” is sufficiently clear. As has been referred to, I said that I would consider the matter, following the debate in Committee.

The House has heard today from my noble friend Lord Hodgson and the views, in his absence, of my noble friend Lord Hunt of Wirral, about the use of the word “predominantly”. I think that that is a better adverb. I am never a great enthusiast for adverbs generally in legislation, but I think that “predominantly” is a better word. It is more focused and conveys with a little more clarity for the purposes of the judge what we intend by that expression.

Provided this clause survives the expected attack from the noble Lord, Lord Beecham, and others, I intend to bring back an amendment at Third Reading which, if not using the precise wording in the order that is proposed, would include the adverb “predominantly” as opposed to “generally”.

Lord Beecham: I have another question. The Minister’s colleague, Mr Vara, said:

“Narrowing the clause … would mean that … bodies such as voluntary organisations, religious groups or social clubs which demonstrate a generally responsible approach towards protecting the safety or other interests of their clients or members would not be able to benefit from its provisions. That cannot be right”.—[Official Report, Commons, 20/10/14; col. 693.]

That is the argument that he made in opposing an amendment which had been tabled. That seems to suggest that the Government were contemplating situations in which such organisations would be protected in the course of their general functions in the event of a claim arising—rather than, as the noble Lord implied, only in relation to a particular case in which they failed, as it were, to have sufficient regard to the safety or other interests of a client. Surely the noble Lord is in error in advancing the argument that we are looking only at the particular individual who might be involved in such a claim. That seems to me much too narrow an approach to the terms set out in the Bill.

Lord Faulks: I do not have the full context of what my ministerial colleague said in the House of Commons, but I do not believe that I am in error when I give the reasons for my answers to the various questions that have been posed. As I say, these words are not mere surplusage; they are put in to clarify and limit the extent to which “generally responsible” has an application.

15 Dec 2014 : Column 40

I suggest that this provision is an important but modest reflection of what many people would say was a sensible encouragement of employers to adopt a predominantly or generally responsible attitude to the safety or other interests of others—but which, in appropriate circumstances and subject to the court’s overall discretion, allows these matters to be taken into consideration. That is as far as it goes. It is a modest but, I suggest, sensible addition to the law—and it is an addition to the law, as I think is accepted. Given the clarification I have attempted to give the noble Lord on the limit of the measure’s scope, I invite him to withdraw his amendment.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to my noble friend for returning to Amendment 1A. I thought for a moment that it had been forgotten in the heavy-duty exchange of legal artillery that was flying across the Chamber. I am also grateful for his reassuring remarks about the possibility of something further being introduced along the lines of “predominantly” if the Bill survives the challenge from the noble Lord, Lord Beecham. In those circumstances, I am happy to withdraw the amendment.

Amendment 1A withdrawn.

Amendment 2

Moved by Lord Beecham

2: Clause 3, leave out Clause 3

Lord Beecham: My Lords, on this occasion I will not follow the precedent of the noble Lord, Lord Hodgson. The Minister has not satisfactorily explained the real purpose or the workings of this clause, although the two things may not coincide in the minds of those who drafted it. It represents a substantive change and, in his noble efforts to minimise the extent of that change, I fear that he has failed to address the new concerns raised by several Members of this House who are much more learned in the law than I would ever profess to be. In these circumstances, I wish to test the opinion of the House.

5.06 pm

Division on Amendment 2

Contents 190; Not-Contents 238.

Amendment 2 disagreed.

Division No.  2

CONTENTS

Adonis, L.

Ahmed, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Armstrong of Hill Top, B.

Bach, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bhatia, L.

Billingham, B.

Blackstone, B.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Bradley, L.

Brooke of Alverthorpe, L.

Brookman, L.

15 Dec 2014 : Column 41

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Butler of Brockwell, L.

Campbell-Savours, L.

Carter of Coles, L.

Cashman, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Corston, B.

Coussins, B.

Craigavon, V.

Crisp, L.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eames, L.

Eatwell, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fellowes, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Glasman, L.

Golding, B.

Goldsmith, L.

Gould of Potternewton, B.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hutton of Furness, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

Kestenbaum, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Knight of Weymouth, L.

Lawrence of Clarendon, B.

Lea of Crondall, L.

Lennie, L.

Liddell of Coatdyke, B.

Lister of Burtersett, B.

Lloyd of Berwick, L.

Low of Dalston, L.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Mar, C.

Martin of Springburn, L.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Morgan of Ely, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morrow, L.

O'Neill of Clackmannan, L.

Pannick, L.

Patel of Blackburn, L.

Pendry, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L.

Rebuck, B.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Skidelsky, L.

Smith of Basildon, B.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stevenson of Balmacara, L.

Stirrup, L.

Stoddart of Swindon, L.

Sugar, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Touhig, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

15 Dec 2014 : Column 42

Walker of Gestingthorpe, L.

Wall of New Barnet, B.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Williams of Elvel, L.

Wilson of Tillyorn, L.

Winston, L.

Woolf, L.

Woolmer of Leeds, L.

Young of Norwood Green, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B.

Ashcroft, L.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Benjamin, B.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brady, B.

Bridgeman, V.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Caithness, E.

Callanan, L.

Carrington of Fulham, L.

Cathcart, E.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Chisholm of Owlpen, B.

Clement-Jones, L.

Coe, L.

Colwyn, L.

Cooper of Windrush, L.

Cope of Berkeley, L.

Cotter, L.

Courtown, E.

Crickhowell, L.

De Mauley, L.

Deben, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Elton, L.

Empey, L.

Evans of Bowes Park, B.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Feldman of Elstree, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goddard of Stockport, L.

Goldie, B.

Goodlad, L.

Goschen, V.

Greenway, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Helic, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Horam, L.

Howard of Lympne, L.

Howe, E.

Howe of Aberavon, L.

Howell of Guildford, L.

Humphreys, B.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

King of Bridgwater, L.

Knight of Collingtree, B.

Kramer, B.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

15 Dec 2014 : Column 43

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Luce, L.

Ludford, B.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

Maddock, B.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mobarik, B.

Montagu of Beaulieu, L.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Northbrook, L.

Northover, B.

O'Cathain, B.

Oppenheim-Barnes, B.

Oxford and Asquith, E.

Paddick, L.

Palmer of Childs Hill, L.

Palumbo, L.

Parminter, B.

Patel, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Pinnock, B.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Renfrew of Kaimsthorn, L.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rowe-Beddoe, L.

Scott of Needham Market, B.

Scriven, L.

Seccombe, B.

Selborne, E.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Suri, L.

Suttie, B.

Taverne, L.

Taylor of Holbeach, L. [Teller]

Taylor of Warwick, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Swynnerton, L.

Thomas of Winchester, B.

Tope, L.

Tordoff, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

Wakeham, L.

Waldegrave of North Hill, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wei, L.

Whitby, L.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

5.20 pm

Clause 4: Heroism

Amendment 3

Moved by Lord Faulks

3: Clause 4, page 1, line 17, leave out from “danger” to end of line 18

Lord Faulks: My Lords, I turn now to Clause 4 and the amendment we have tabled relating to it. We noted the concerns raised in Committee by the noble Lords, Lord Aberdare and Lord Pannick, and my noble friend Lord Attlee that the current definition of “heroism” could be taken to exclude the actions of trained first aid volunteers. That is because the current clause says

15 Dec 2014 : Column 44

that a person acts heroically if he intervenes to help somebody in danger without regard to his own safety or other interests. Organisations such as St John Ambulance and the British Red Cross would always train their volunteers to have regard to the potential risks to themselves and others before intervening.

I had a very constructive meeting with representatives from those organisations after Committee to discuss these matters further, which culminated in the amendment that we are bringing forward today. We agreed that the simplest thing to do would be to remove the final 11 words of the clause. This will put beyond doubt that the clause applies to anybody who intervenes in an emergency to help somebody in danger, regardless of whether they acted entirely spontaneously or weighed up the risks before intervening. What is more, St John Ambulance and the British Red Cross, as leading first aid organisations reaching hundreds of thousands of people a year, have said that if the amendment is agreed they will use the opportunity to encourage more people to come forward to act in emergencies. I am very grateful to them for their offer of assistance, which will help to reassure many new first aid volunteers that they can intervene in emergencies secure in the knowledge that the law will be on their side. I beg to move.

Lord Lloyd of Berwick: My Lords, I also have an amendment in this group. It may be convenient if I say what I have to say now. In many ways, Clause 4, which we are now dealing with, is the oddest of these three clauses. As drafted, it was strongly criticised by the Fire Brigades Union, St John Ambulance and the Red Cross, among others. To take the instance of the Fire Brigades Union, the clause goes directly contrary to advice that it has given for many years to people involved in a fire: to get out of the way of the fire as quickly as they can and to stay out. If they intervene to try to rescue somebody, then they are only likely to put in greater danger the firemen, who will have to come to their rescue as well.

This was pointed out as a difficulty—indeed, as a serious objection—in the other place, but no notice was taken of that criticism until at a very late stage in this House, when the noble Lord, Lord Faulks, gave notice of his amendment to leave out the last 11 words of the clause. Leaving out the last 11 words of this clause is undoubtedly a great improvement, but leaving out half a clause to save the rest of a clause is an unusual thing to do. It only demonstrates that the clause, like the rest of the Bill, was never properly thought out in the first place. In Committee I suggested that it looked like a clause drafted on the back of an envelope. I now think that that may be going too far in its favour. It must surely have occurred to someone at some stage that a clause that protects someone who takes no thought for his own safety, but does not protect someone who takes some thought for his own safety—that, as it was put elegantly, as always, by the noble Lord, Lord Pannick,

“protects the instinctive hero but not the thoughtful hero”—[

Official Report

, 18/11/14; col. 416.]

—is surely inherently ridiculous. Be that as it may, the objection to Clause 4 is essentially the same as that to Clause 2. The substance of Clause 4, as it will stand if

15 Dec 2014 : Column 45

the noble Lord’s amendment is accepted, is already covered by Section 1 of the Compensation Act 2006.

It is difficult to imagine a,

“person … acting heroically … to assist an individual in danger”,

who is not by that very act engaged in a “desirable activity” as envisaged by Section 1 of the Compensation Act. If so, this clause adds literally nothing to the existing law. If the noble Lord in his reply can think of a single example where the point I have made is not valid because something would be covered by this clause and not by Section 1 of the Compensation Act, I hope he will tell us. In the mean time, I submit that it adds nothing and should be rejected on that ground. In due course I will move my amendment too.

Lord Pannick: My Lords, there is a further reason why Clause 4 is pointless and that is, of course, because it adds nothing to Clause 2. It is very difficult to understand in what circumstances a person is acting heroically in an emergency when they are not also,

“acting for the benefit of society or any of its members”.

Perhaps the Minister can tell the House of a theoretical case that would not fall within Clause 2 that falls within Clause 4. There is no doubt that the removal of the final words of Clause 4 is a distinct improvement. We must be grateful for small mercies.

I have a further concern that when courts have to apply Clause 4 there is ample room for no doubt lengthy debate as to what is meant by “heroically” and “emergency”, neither of which is defined in the Bill.

Lord Brown of Eaton-under-Heywood: My Lords, I, too, support the amendment tabled by the noble and learned Lord, Lord Lloyd, for the same reasons as I indicated in respect of Clause 2. It adds nothing. If you ask a simple question whether there is a court in the land which would not, under the common law,

“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”,

the question answers itself—of course there is not. I ask the Minister to say what is added by the words “acting heroically by”. Why could it not just be, “when the person was intervening in an emergency to assist an individual in danger”?

Apart from ramping up the rhetoric—that is essentially what this whole business is—what actually is added by “acting heroically by”, except for another hour of the court’s time if eventually it has to apply this clause?

Lord Walker of Gestingthorpe: My Lords, I support the amendment which my noble and learned friend Lord Lloyd of Berwick has indicated that he is likely to withdraw. I wish to address briefly the amendment proposed by the Minister and draw attention to the use of language in both Clause 4 and throughout the Bill. I am genuinely shocked by the low standard of draftsmanship in the Bill—presumably it was prepared by government lawyers. It is an elementary principle of statutory drafting that one unit of meaning should be described by one word—that words should not be used interchangeably as the draftsman’s fancy takes him.

15 Dec 2014 : Column 46

5.30 pm

At present, the Bill contains the word “person” six times—or five if the government amendment is accepted. It contains the word “individual” once. That very strongly indicates that “person” is being used to describe either an individual or a body corporate. It will be said that when Parliament wants to refer to an individual, it uses the word “individual”. That is the sort of thing that judges say. They assume that statutes nowadays are carefully drafted.

Looking at Clause 4, it may be that,

“without regard to the person’s own safety or other interests”—

words which we are now invited to omit—would be treated as a sufficient context to indicate that, contrary to all normal principles of statutory drafting, “individual” and “person” were being used interchangeably. However, if those words drop out, the person who is acting heroically—whatever that means—is either an individual or a body corporate. No doubt a body corporate charged with providing emergency services in a particular district is a person acting heroically. I suggest that at Third Reading serious thought should be given to the neglect of basic principles of statutory draftsmanship which the Bill reveals.

Lord Hodgson of Astley Abbotts: My Lords, I, too, congratulate the Government on leaving out the 11 words at the end of this clause. Particularly following our debate in Committee, it appeared to me that a “person’s own safety” is not necessarily a part of heroism, so it is a useful removal.

The noble and learned Lord, Lord Lloyd, in speaking to his amendment to leave out the clause, said that his reasons for wishing to do that were broadly the same as his reasons for tabling Amendment 1, which concerned Clause 2. I understand that, and therefore draw the conclusion that I drew a couple of hours ago. I hope that my noble friend will resist that amendment.

Lord Beecham: My Lords, the noble and learned Lord, Lord Brown, asked what was added by the reference to heroism in the Bill. The answer is that it allows the Government to bestow an acronym on the Bill; otherwise, it would simply be the “Social Action Responsibility Bill”. Now, we have the words “and Heroism”, which make a convenient acronym. That is an interesting way of proceeding with the drafting of legislation and I concur with the noble and learned Lord’s criticisms of that process.

Having said that, the Minister has at least made a concession by, in effect, accepting the amendment moved by the noble Lord, Lord Pannick, to which I subscribed, as I said before. It was of some comfort that St John Ambulance, which was certainly in touch with me and, I suspect, other noble Lords, welcomed that change. The clause does not substantially affect anything, as we have already heard. However, in so far as this modest change makes it marginally more palatable, I welcome the Minister’s concession. He has not been able to offer too many concessions, but I am glad that he has prevailed on the Lord Chancellor on this occasion to make a gesture of an unfamiliarly generous kind to this House. I support the amendment.

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Lord Faulks: My Lords, for the most part the Government’s amendment has been supported. The noble and learned Lord, Lord Lloyd, says that the fact that we had to remove nearly half the clause, because half of it was not worth while, indicates that the clause really was not worth while. That may not do entire justice to his argument, but we say that we responded to the burden of the argument. We listened to the debate and we consulted St John Ambulance. We certainly do not want to do anything that does not realise the main objective of the Bill, which is to encourage people to volunteer, to assist and to provide, if necessary, emergency assistance.

The Government will no doubt take very much to heart the criticism of the use of language made by the noble and learned Lord, Lord Walker. I explicitly do not promise to make any changes before Third Reading but I undertake to revisit the issue in case any further clarity can be attained by the use of “person” or “individual”.

However, I would say to anyone who is not a lawyer that Clause 4 is pretty clear. It states:

“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”.

I am really not sure that that is a terribly difficult concept to understand. I think that men and women would understand what was meant to be conveyed by that, and it is perfectly reasonable to ask the court to pay regard to it. The noble and learned Lord, Lord Brown, may well be right that judges would take that into account. Certainly most judges would.

However, the outcome of any negligence case, as those of us who have laboured in that particular vineyard will tell the House, is never clear, particularly when there is a very badly injured claimant. Judges sometimes do not sufficiently bear these matters in mind. The court must now “have regard”—that is all we ask—to whether there is heroism as described. We do not believe that heroism needs further definition or examples. We think that judges should be able to recognise it when they see it.

I submit that, while taking on board the criticism of some aspects of the drafting, this very much maligned Bill and this clause serve a sensible, common-sense purpose, and I ask the noble and learned Lord not to press his amendment.

Lord Lloyd of Berwick: Before the noble Lord sits down, I wonder whether he would just deal with the principal point made both by myself and by the noble Lord. In what respect does this clause add anything to Clause 2, as it will now stand part of the Bill, or to Section 1 of the Compensation Act 2006? Will he please give us one single example?

Lord Faulks: I will give the same answer that I gave in relation to the distinction between the Compensation Act and this Bill, which is that the Bill says that the court “must have regard”. That is a distinction. I said in Committee that there may well be an overlap between Clauses 2 and 4. I do not say that they are wholly distinct; they convey an accumulation of concepts which are readily understood, and a judge may find it

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possible to bear in mind both Clause 2 and Clause 4. That fact does not mean that Clause 4 cannot, in appropriate circumstances, serve a useful purpose.

Baroness Warnock (CB): Before the noble Lord sits down, will he answer the question raised by my noble and learned friend regarding what exactly the word “heroic” adds to Clause 4? Could it not be left out? Intervening for the sake of saving somebody is surely enough. Is there any reason for having “heroism” or “heroically” either in the Title of the Bill or in Clause 4?

Lord Brown of Eaton-under-Heywood: Before the Minister answers that, the words that are completely surplus here are “acting heroically by”. Why can it not read, “was intervening in an emergency”? Can the Minister whet our appetite as to whether there is any scenario when you can intervene in an emergency and so on, within the meaning of this clause, without acting heroically? If not, for heaven’s sake get rid of it.

Lord Faulks: The answer is that the word is used in the clause to describe a particular circumstance which I think would convey to most people exactly what is intended by that clause. Yes, there may be some circumstances in which it is surplusage, and others when it is useful to describe what is said. I am afraid that the criticisms have now been made, and I have given answers to the questions. It is a matter for the House to decide whether they are satisfactory.

Amendment 3 agreed.

Amendment 4

Tabled by Lord Lloyd of Berwick

4: Clause 4, leave out Clause 4

Lord Lloyd of Berwick: I am not sure whether I am entitled to say anything more. I do not intend to do so, except to draw attention to the fact that we have not been given any explanation of how Clause 4 adds anything of any utility. However, for reasons best known to themselves, the Official Opposition have decided not to support this amendment. In those circumstances, there is little chance of a result different from that which we had earlier this afternoon. I therefore do not intend to take the opinion of the House.

Amendment 4 not moved.