My Lords, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, contend that Clause 2, along with Clauses 3 and 4, should be removed from the Bill for a number of reasons, one of which is that it covers the same ground as the Compensation Act 2006. There is a breadth of criticism of this clause, including that it is not well drafted and that there is insufficient evidence to justify the whole Bill, but in particular this clause. The two are, in a sense, not entirely unconnected.
The question is how we deal in legislative terms with a problem that may not be seen as a problem by those who are skilful in the law. The noble Lord, Lord Pannick, will navigate his life secure in his knowledge of the law and the likely outcome of any case. His conduct will be so affected. Others are less knowledgeable about the law and much of their conduct is based on an imperfect understanding of what the legal position is and what it might be in the unhappy event, as my noble friend Lord Hodgson says, of finding themselves in court.
Successive bodies, such as the committee of the Department of Constitutional Affairs, which preceded the Compensation Act, found that there was a perception of a compensation culture, as did my noble friend Lord Young of Graffham, in his report Common Sense, Common Safety. Those outside the law would quite confidently assert that there was a compensation culture. Quite what they meant by that would no doubt vary between individuals, but some of the instances cited by my noble friend Lord Hodgson are instructive. He provided evidence based on what his committee heard. This was not a single assertion. It was not based on one person’s experience. It was an accumulation of evidence.
Those in your Lordships’ House who are not lawyers would, I suggest, recognise the very problem that the Bill seeks to confront. My noble friend Lord Hodgson is absolutely right to say that the Bill is not the answer to that problem. It is just one possible answer to that problem. With respect to the fault in the drafting that the noble and learned Lord, Lord Lloyd, said he found, I just wonder whether someone who is not skilled and
learned in the law would have much difficulty in understanding what was meant by Clause 2. It conveys that somebody who is potentially to be sued for being in breach of statutory duty or negligence would have their actions, if acting for the benefit of society or any of its members, taken into account. Is that so difficult a concept? I suggest not. It would provide some reassurance.
It is said to be rather unworthy of Parliament that we should be sending a message. The noble Lord, Lord Pannick, who shows the breadth of his allusions to popular culture and Shakespeare, relies on the Bee Gees. Sending a message is not, of course, the primary purpose of legislation but, as I said at Second Reading, we legislate in a particular context. We do not live in a hermetically sealed Chamber where we do not take into account what people on the outside think and say. We should indeed not be out of step with those who drink at the Dog and Duck, who are aware of the possibility of a compensation culture. If the Bill chimes in common-sense terms with what ordinary people feel—that we have gone too far—then the Bill is providing a useful purpose.