My Lords, in speaking against Clause 2 in Committee and in the debate today, the noble and learned Lord, Lord Lloyd of Berwick, has maintained that the clause adds nothing useful to Section 1 of the Compensation Act 2006 or to the existing common law and is therefore unnecessary. I take this opportunity to explain why the Government believe that the clause has an important purpose, which merits the support of the House.
The clause stems from our wish to ensure that people can feel confident about participating in activities that benefit others without worrying about what might happen if something goes wrong and they find themselves defending a negligence claim. Clause 2 sets out to provide valuable reassurance that if that happens, the court will take careful and thorough account of the context of the defendant’s actions when reaching a decision on liability. Rather as the noble Baroness, Lady Ashton, said when introducing the provisions of the Compensation Act, as I have quoted before:
“They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.—[Official Report, 28/11/05; col. 81.]
So two separate Governments have identified a fear.
It is said that there is no solid evidence and that such evidence as there is is anecdotal. I agree with my noble friend Lord Hodgson: it is rather hard to identify and amass solid evidence about this. However, I am not sure that many people would disagree with the proposition that we have a culture where litigation hovers over many activities like a shadow and can genuinely inhibit the sort of things that most people would consider to be desirable.
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Although the primary concern underlying this clause is to ensure that voluntary activities are encouraged and supported, we see no reason to restrict its application to such cases. In common with other clauses in the Bill, Clause 2 is therefore broadly drafted so that it will
apply in a wide range of situations where people act for the benefit of others, whether they do so on a voluntary basis or in a paid capacity. As I indicated in Committee, this could, for example, include organised charitable activities such as running a village fete, or informal individual activities such as helping an elderly neighbour with their shopping. It could also cover workers such as teachers, doctors, and emergency services who act for the benefit of society as part of their jobs.
The idea that this provision might somehow have—I quote what was alleged in earlier debates—“horrific unintended consequences”, is rather difficult to understand. As I have explained, the clause does not tell the court what conclusion it should reach and will not prevent a person engaged in socially beneficial action being found negligent if the circumstances of the case warrant it. It will be for the court to determine whether a person was acting for the benefit of society and, if so, what weight it should give to that factor in all the circumstances of an individual case. This will give the courts the maximum flexibility to reach decisions that are fair and just, while sending a strong signal to reassure the public that they will consider, in all cases, the wider context of the defendant’s actions prior to reaching a conclusion on liability.
The noble and learned Lord, Lord Lloyd, said that the clause was not necessary because it covers identical ground to Section 1 of the Compensation Act 2006. In fact, Clause 2 takes a different and firmer approach. It requires the courts to consider, in every case, whether a person was acting for the benefit of society or any of its members. It also adopts a different emphasis by focusing more firmly and precisely on the actions of the defendant in the particular case, rather than on the general effect that a finding of negligence might have on others participating in similar activities. For these reasons, we think Clause 2 will provide greater reassurance than Section 1 of the 2006 Act. The noble and learned Lord said that it was too soon to tell whether the Act was working, particularly having regard to the evidence that was relied on by the Government. The noble Lord, Lord Pannick, said in earlier debates that the Compensation Act was working well. On the other hand, the noble Lord, Lord Beecham, said that Homer had nodded and that the Labour Party, in identifying this particular problem, had made a mistake: there was no such thing as a compensation culture, whatever may have been the perception.
We say that the need for further measures has been amply evidenced by the support for the Bill from voluntary organisations, such as the National Council for Voluntary Organisations, St John Ambulance, and the British Red Cross, which have made clear that their concerns over liability remain a real issue for many of their members. The plans that such organisations have indicated they have for publicising the Bill and spreading awareness of its provisions will ensure that our core message is transmitted widely and effectively. The noble Lord, Lord Pannick, suggested using Facebook or advertisements in newspapers. I am sure that those bodies are well experienced in knowing how best to convey the message to those they wish to receive it. He seemed to identify the more popular means of transmitting messages or information, presumably on the assumption
that those who read the broadsheets or listen to the radio would not need any such reassurance. Perhaps he overestimates the bewilderment that many feel about the state of the law, particularly the state of the law of negligence. The principles are clear; their application to particular facts has often been a subject of uncertainty and criticism. During the debates, the noble Lord rightly referred to the fact that the basis of the Compensation Act was the House of Lords decision in Tomlinson, in which the noble and learned Lord, Lord Hoffmann, produced the seminal speech. That speech represented, he said, effectively—although couched in the most magnificent English—a statement of the obvious which then found its way into the statute book.
Of course, the House of Lords would have to consider it, meaning that someone had identified it as a difficult point. It had had to go from first instance to the Court of Appeal to the House of Lords. In these difficult cases on the margin, very often where there is a seriously injured claimant, finding the answer in a negligence case is difficult and there is nothing unworthy about Parliament setting out and identifying guidelines that should be taken into account and to which judges should have regard while still allowing them to approach cases on their particular facts.
The noble and learned Lord, Lord Walker, quite rightly reminded us of the immensely important role that the Law Commission has played and plays in the development of the law.