Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,
“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.
It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,
“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,
the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.
I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If
the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.
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The amendment tabled by the noble Lord, Lord Beecham, prior to Committee would have removed the word “generally” from the clause without replacement, as he said earlier. This would have removed the obligation on the court to consider the organisation’s overall approach to safety in the course of an activity, which we believe should be a relevant factor. While we cannot therefore agree to a substantive shift in policy, I recognise that concerns have been expressed about whether the phrase “generally responsible” is sufficiently clear. As has been referred to, I said that I would consider the matter, following the debate in Committee.
The House has heard today from my noble friend Lord Hodgson and the views, in his absence, of my noble friend Lord Hunt of Wirral, about the use of the word “predominantly”. I think that that is a better adverb. I am never a great enthusiast for adverbs generally in legislation, but I think that “predominantly” is a better word. It is more focused and conveys with a little more clarity for the purposes of the judge what we intend by that expression.
Provided this clause survives the expected attack from the noble Lord, Lord Beecham, and others, I intend to bring back an amendment at Third Reading which, if not using the precise wording in the order that is proposed, would include the adverb “predominantly” as opposed to “generally”.