My Lords, I have added my name to this amendment because, speaking as a judge of 28 years’ experience, it concerns me that judges in future are going to have to deal with the Bill in its present form. It would be so much easier and less muddling for them if we managed to make the amendment for which we are contending today. Everyone agrees that Clause 3 is the only part of the Bill that is intended to effect any change whatever to the law. Its essential purpose was set out by the Minister at some length on Report, but really one can simply cite this passage:
“If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability?”.—[Official Report, 15/12/14; col. 36.]
So far, so good—in all events, it is too late now, at Third Reading, to question the desirability of making this sort of change without taking any soundings from, for example, the Law Commission, a point that was stressed strongly on Report by my noble and learned friend Lord Walker of Gestingthorpe—but the real difficulty with the present wording was crystallised on Report in the exchange between the Minister and the noble and learned Lord, Lord Goldsmith. The noble Lord, Lord Pannick, has already made some reference to that exchange, but perhaps it is worth setting it out at a little greater length. The noble and learned Lord, Lord Goldsmith, raised the question of what would arise if, say, someone sued their accountant for negligence with regard to the completion of their tax return, and he suggested that under Clause 3 in its present form the accountant could say:
“‘The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record’. How do the words in the clause prevent that from being done?”.
The Minister responded by saying that,
“the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says”.
The noble and learned Lord, Lord Goldsmith, in turn said:
“It would not be this tax return, surely, but the activity of advising on tax returns generally”.
The Minister’s response—this is the final quotation from that exchange—was:
“I respectfully disagree with that interpretation because it is concerned with the activity in question, ‘in the course of which the alleged negligence or breach of statutory duty occurred’. It would not therefore, deal”—
the noble Lord, Lord Pannick, has cited this—
“with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause”.—[Official Report, 15/12/14; col. 37.]
3.15 pm
There we have it. At present, all one can say is that the wording is at best ambiguous. It surely seems sensible to narrow down the word “activity”. Indeed, the noble and learned Lord, Lord Hope of Craighead said:
“Using the phrase, ‘activity in question’ is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about”.
Clause 1, of course, sets the context for all three of the substantive clauses and makes plain that they are to apply when the court is,
“determining the steps that the person”—
I interpolate that “the person” is the defendant—
“was required to take to meet a standard of care”.—[Official Report, 15/12/14; col. 38.]
It can be put very simply. The phrase “act or omission”, which our proposed amendment would substitute for the word “activity” in Clause 3, would surely harmonise altogether more easily with the language of Clause 1 and focus the court’s attention more narrowly on determining the steps that the defendant should have taken to avoid a finding of liability. It is a small amendment,
but a sensible one, which would give effect to what the Minister himself suggests is the proposed limited scope of this provision and would help courts in future.