Compensation Bill [HL]

moved Amendment No. 5:"After Clause 1, insert the following new clause—" ““INTERPRETATION OF PART 1    In considering for the purposes of this Part whether the defendant should have taken particular steps to meet a standard of care, a court shall have particular regard to whether the claimant— (a)   entered onto land or into premises with the intention of committing an offence, or (b)   otherwise willingly accepted a risk as his (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”” The noble Lord said: My Lords, I apologise to the Minister, but it was important for the House to express its view on the principle of the previous amendment. I am, I hope, warming to my theme of targeting changes in culture and restoring standards of decency and respect. I recognise that the Minister shares this objective; I simply reiterate that, whatever happens today, I stand by ready to discuss further with her ways in which the Bill can be improved. On the whole question of trespassers and their rights, I am sure that the then government had the best of intentions when they introduced the Occupiers’ Liability Act 1984, which gave unlawful visitors to land a right to sue if they were injured because of negligence. I suppose I have to say that because I was a member of that government, and I know that that decision was taken following critical examination by the Law Commission and the House’s Judicial Committee of the law relating to occupiers of land in the Herrington v British Railways Board case. It was recognised that, in certain circumstances, people were treated as trespassers who had visited land unlawfully but who were still being exposed to unnecessary risks. With the benefit of hindsight, perhaps we should have been a little more careful. This Act has led to burglars and other criminals believing that they have a right to sue if they are injured during the commission of an offence. Following the infamous Tony Martin case, the present Government took action in the Criminal Justice Act 2003 after a good deal of pressure from the Opposition. But that legislation deals only with cases in which the burglar is injured as a result of the direct act of the householder, either by assault, by deliberate injury or by depriving the claimant of his liberty. What we are talking about in this amendment is quite different. Claims have been brought by adults who trespass on land and then injure themselves. Perhaps they fall off a roof or, as in the latest high-profile case, they fall off the outside of a fire escape. These are people who are taking obvious risks and putting their own safety in jeopardy as a result. The Prime Minister has said repeatedly in the past couple of years that he wants society to take a different attitude to risk. He wants to replace, ““I know my rights””, with, ““I know my responsibilities””. So do I, and this amendment springs from that principle. With the passage of time, I have no hesitation in saying that that 1984 Act has ultimately brought imbalance rather than balance to the law. I use that phrase because I know that it warms the heart of the Minister, who is constantly trying to achieve balance. I now believe that we should rein back the ability of trespassers to sue for injuries sustained either when they entered on to land intending to commit a criminal offence or when they took a deliberate risk. This is of course another aspect, which we ventilated and debated at length in Grand Committee when we paid particular attention to the question of children being exposed to risk of injury. That is why our amendment preserves the rights of children, who I accept should be treated differently. According to the amendment, there must be an element of either an intention to commit a criminal offence or a willing acceptance of risk. Those concepts would dovetail neatly with existing law, and would restrict the application of the clause to cases involving older teenagers who were well aware that what they were doing was risky or wrong. I also emphasise that the clause which I propose in Amendment No. 5 does no more than impose on the court an obligation to have regard to such matters. So in many ways we are back to the noble Earl’s point about sending messages. Cases in the past few years have shown that one cannot always rely on the lower courts in our civil system to get these matters right at the outset. Too often, the correct public policy decision is reached only in the Court of Appeal or, indeed, in our Judicial Committee. I believe that this amendment would send a clear message to the courts and to the public that certain types of behaviour should not open the door to compensation. I beg to move.