Compensation Bill [Lords]

The Register of Members’ Interests contains a reference to an interest that I have in the holiday park industry and states that I am the vice-president of the North Northumberland scouts. I hope that that pleases my hon. Friend the Member for Montgomeryshire (Lembit Öpik). I shall speak briefly about the work that the Committee on Constitutional Affairs did on compensation culture and on the Bill. As many hon. Members have said, we were not satisfied with clause 1. We said:"““It neither satisfies those people who wish for volunteers to be provided with a special defence against claims of negligence, nor ""does it clarify the law. Instead, it is likely to lead to additional litigation, as people turn to the courts to define the precise nature of the provision.””" I shall return to that point. The Committee did not conclude that conditional fee agreements or litigation had created a compensation culture, but rather that there was a perception of such, with a variety of causes, that was not soundly based."””We found no evidence that conditional fee agreements or personal injury litigation were a significant factors in causing risk aversion, and personal injury litigation has not increased in recent years.””" We said:"““Risk aversion has a number of complex causes, including advertising by claims management companies, selective media reporting, a lack of information about how the law works and, on occasion, a lack of common sense among those who implement health and safety guidelines. Risk aversion of this sort is a concerning modern phenomenon that has an adverse effect on individuals and on the economy as a whole. Instead of a statutory provision restating the law of negligence what is required is a clear leadership by the Government””" We went on to suggest that that"““should include an education programme making clear that risk management does not equate to the avoidance of all risk and active engagement by the Health and Safety Executive to ensure that it adopts an approach which is proportionate, does not over-regulate vulnerable sectors and instead offers appropriate advice and support””." On balancing risk, the Committee was given a strong impression by the HSE that balancing different risks was not something in which it engaged. The classic example is the HSE stopping a commuter station from being opened because the platform was not long enough. Somebody might get out through a door, not obeying the guard’s instructions, and sprain or break an ankle. That is a lower risk and a lower injury than if all commuters got into their cars and drove on congested roads into the city. There is the balancing of risks from two different areas. The system is not equipped to carry out that exercise, which leads to the consequences about which hon. Members are concerned. There is also the widespread and gross misuse of health and safety arguments, and sometimes on the basis of mere error. A lovely example of that is provided by the Lord Chief Justice, who was told when he went to a governors’ meeting at his old school that he could no longer take an early morning dip in the swimming pool because there was no lifeguard or qualified member of staff present to supervise his swim. As a modest man, he did not assert, ““I am the Lord Chief Justice, and this would not stand a moment’s chance in my court.”” If he had done so, that would have helped to spread greater knowledge of the law. Perhaps more often health and safety arguments are used as an excuse when a public body does not want to spend some money or does not have a budget for something that is clearly necessary to enable an activity to take place. Health and safety is often loosely quoted when it is not the real reason for not doing something. On clause 1, most accepted authorities will say that the Tomlinson case got it right, and that there is no clearer and sounder definition of what the law says than what came out in that judgment. I will not quote them again because my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) referred to Lord Hoffmann’s trenchant words on the subject. There are real dangers in trying to second guess, as is done in clause 1. That relates particularly to satellite litigation on, for example, what might be desirable activities. That is only one of the areas in which litigation could take place on the basis of clause 1, and examples of that have already been given. If, as the Government concede, there is to be litigation to establish the meaning of clause 1, that immediately defeats its sole objective, which is to give people a clearer understanding of what the law is now. The moment that we get into fresh litigation, we have to wait for that understanding to exist.