My Lords, I have added my name to that of the noble and learned Lord, Lord Lloyd of Berwick, in opposing Clause 2 standing part of this Bill, and I agree with everything that he has said. At Second Reading the noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare in their competing assessments of the value of Clause 2, and indeed of the whole of this Bill. At that stage I was unable to contribute at such a high literary level—I could offer only a quotation from Basil Fawlty.
Since then, I have received a valuable e-mail from Paul Mitchard QC of the Faculty of Law at the Chinese University of Hong Kong. He assures me, and I assure the Committee, that the Official Report on this Bill is being carefully studied in the special administrative region of the People’s Republic of China. Mr Mitchard has drawn my attention to a valuable quotation from the works of Shakespeare which is relevant to whether Clause 2 should stand part of this Bill. On being complimented on making a perceptive comment, Beatrice responds by emphasising the obvious nature of what she had said:
“I have a good eye, uncle; I can see a church by daylight”.
Most appropriately for our purposes, the quotation comes, of course, from “Much Ado About Nothing”. Given that a few moments ago the Minister praised the concise nature of this Bill, perhaps “little ado about nothing” is more appropriate.
Judges can already see a church by daylight. They already take account of beneficial action—responsibility, heroism—when they decide on potential liability for negligence or breach of statutory duty. Noble Lords discussed the case law relevant to this matter at Second Reading; I will not repeat it. The Lord Chancellor’s defence of Clause 2—as the noble and learned Lord, Lord Lloyd, has said—is not that Clause 2 will change the law. The Government have identified no cases which would have been decided differently had Clause 2 been in force. The point made by the Lord Chancellor—the point made by the Government—in support of Clause 2 is that people do not understand the existing law and therefore we, Parliament, should send a message to people who are worried that conduct beneficial to society may result in legal liability, even though those worries are entirely baseless. I do not know whether the Lord Chancellor is on Facebook or Twitter but they would be far more effective methods of communicating a message—if it is the intention of the Government to do so—than the legislative time being taken up by the Bill.
I hope that it is appropriate to say that I cannot put out of my mind—although I hope to do so by ventilating it in this Committee—an image of the Lord Chancellor and the noble Lord, Lord Faulks, as the parliamentary equivalent of the Bee Gees singing their hit, “I’ve Gotta Get a Message to You”. The problem is that there is really no point sending a message unless there is something of value to communicate and unless one has reason to think that it is going to be received. There is simply no evidence whatever to suggest that those thinking of performing beneficial acts or heroism are deterred by a misunderstanding of the protection that the law already offers them.
The Joint Committee on Human Rights, in its report published last week, helpfully summarised the position in relation to this crucial point. I draw the Committee’s attention to paragraph 2.23. It refers to the Explanatory Notes to the Bill, which,
“say that there is ‘some evidence’ that people are deterred from participating in socially useful activities due to worries about risk … or liability”.
The Explanatory Notes, as the Joint Committee points out, cite only an example of a survey conducted in 2006-07. The committee asked the Government if there were any other evidence upon which the Bill is based in relation to the suggested need for a message to be sent. This was the report’s conclusion at paragraph 2.26, which stated:
“We have considered carefully the strength of the evidence base showing that the specific risk of legal liability, as opposed to risk generally, is a reason why people do not volunteer, and we have found it weak. The evidence relied on by the Government as demonstrating a public perception that volunteering carried too great a risk of legal liability is almost entirely anecdotal, and we do not consider such evidence to be a sound basis for legislating”.
I respectfully agree. If the Government are bringing forward Clause 2 on the basis that there is a need to send a message, they need to present to this House
some evidence to support that assertion. Anecdotal accounts are simply not good enough. I therefore share the view of the noble and learned Lord, Lord Lloyd of Berwick, that Clause 2 serves no useful purpose; it should not stand part of the Bill.