Compensation Bill [HL]

My Lords, I am grateful for the further explanation, but we need to be cautious of some issues. I am not suggesting that the noble Earl is being anything other than cautious about where the Health and Safety Executive is put in the blame seat for things that are actually nothing to do with it. Health and safety is a critical issue. I shall focus on what I think the noble Lord, Lord Hunt, is seeking: a reassurance about precisely what the law will do. I shall read these points into the record because they are important, and the noble Lord can reflect upon them for the further stage of this Bill. As the noble Lord knows, we are reflecting in Clause 1 the current law and the approach taken by the courts in cases such as Tomlinson, which has already been cited today in your Lordships’ House, and was cited a great deal in Committee. The court did not rule out the possibility that the factor now reflected in Clause 1 could be relevant to claims by an employee against his or her employer, but it also makes clear that another factor that courts can also consider is the extent to which the claimant was freely and voluntarily undertaking the activity in question. One example that the courts gave was that of an employee who might have no genuine or informed choice if their work required them to take particular risks. The court in Tomlinson clearly accepted that the factor now in Clause 1 could be outweighed in the court’s balancing assessment by the claimant’s lack of genuine and informed choice to run the risk. It is important that the courts can consider the balance between these factors and the other factors involved in reaching an appropriate decision in each individual case. Clause 1 does not affect the courts’ ability to do this or to reach the view that the factor in Clause 1 might be outweighed by other relevant factors. Concern has been expressed that the clause might lead to people working in one area—for example, the emergency services—being treated differently from those in other areas because one type of activity might be considered desirable while another would not. I know the noble Lord has raised that concern. That is not the case. The factor in Clause 1 is not given any greater weight than any other relevant factor, and the courts will consider all relevant points in reaching a decision. In addition, Clause 1 will not be applicable in the vast majority of cases of a claim for breach of statutory duty between an employee and his or her employer, because the statutory duties in question are strict duties and liability does not depend on whether the employer took reasonable care. As the noble Lord, Lord Hunt of Wirral, said, the majority of health and safety regulations in recent years derive from standards agreed at European level, and the directives setting out those standards make it quite clear that the duties they place on employees are strict duties, not duties to take reasonable care. To read those duties as involving a standard of care so that Clause 1 would apply would be inconsistent with EU law, and it is well settled that the courts wherever possible should interpret legislation consistently with European law. Our own approach is to put in the words ““reasonably practical””. The phrase is not within the European directive, and is not the same as a duty to take reasonable care to ensure that it is achieved. That is a fundamental difference. We also went to the Health and Safety Executive legal team to make sure that we had got this absolutely right. The clause does not change the law in a way that would lead to the courts treating one type of worker any differently from another, or that would disadvantage employees generally. As I have said already, it is important to recognise what Clause 1 does and does not do. It provides that courts may, not must, take into account whether particular steps that, it is argued, should have been taken to avoid the injury loss would have had a particularly adverse impact on the desirable activity. It does not require the court to take that factor into account, nor to give it any weight; still less to make it a paramount consideration. I hope that I have put on the record absolutely clearly what this clause would not do and the effect it would not have on employers and employees. The clause reflects the approach of the courts in assessing cases across a wide range of situations involving claims for negligence and breach of statutory duty, and I hope, when the noble Lord has time to reflect on this, he will feel it addresses his concerns completely. If, however, there is anything outstanding still to be said for the record, I am willing to consider that too.