My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.
The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.
The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.
As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.
In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.
The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.
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The Federation of Small Businesses has also welcomed the Bill, as well as the CBI—as referred to by the noble Lord, Lord Beecham. The national chairman of the FSB, John Allan, said that he,
“hopes this proposed legislation will help protect hardworking business owners against irresponsible claims”.
The Government believe that it must be right to discourage such claims and, in the event that such a claim is brought, to require the courts to take into account the general approach of the defendant to safety during the course of the activity in question.
To those in your Lordships’ House who still have concerns about the possible effects of the clause, I emphasise that the provisions do not direct the courts as to the conclusion they should reach and will not prevent a finding of negligence or breach of statutory duty where this is justified. I am confident that the courts will continue to take a common-sense approach to these cases and will exercise the flexibility which this clause gives them to reach a just decision in all the circumstances of each individual case.
That is also my answer to the question raised by the noble and learned Lord, Lord Hope, about contributory negligence. The courts often have to go through an evaluative process when looking at a case of negligence and deciding the question of whether there is contributory negligence and, if so, what percentage. They, I suggest, will not be prevented from performing such an exercise by these provisions.
Likewise, in deciding, when there are two defendants, if one or both of them should be found liable, the courts will examine the circumstances in a way that they do with the law as it currently is. They will be invited to have regard to the matters in Clause 3, but that should not make it particularly difficult, I respectfully suggest, to come to a just decision on the facts.