My Lords, I was anticipating that the Minister would now move his amendment, but perhaps in the circumstances it would be sensible if I spoke from the Opposition Front Bench.
The literary world is familiar with the concept of vanity publishing; this Bill is an example of its parliamentary equivalent, vanity legislation. Clause 3, with or without the government amendment, or that of the noble Lord, Lord Pannick, is the only clause that even purports to effect a change in the law—and that, in the words of Shakespeare’s Richard III, whose subject Ministers, and this Minister in particular, have so frequently prayed in aid, in a manner so “lamely and unfashionable” as to make it worse, not better.
It is noteworthy that, time and again, as this essentially trivial measure has made its way through both Houses, Ministers have harped on the alleged need, in the words of the Minister at Report,
“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”.
In a remarkable non sequitur, the Minister went on to express the 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”.—[Official Report, 15/12/14; col. 34.]
That is a reference to the dreaded compensation culture which apparently haunts the sleepless nights of Ministers, potential defendants and their insurers—and now, we understand, possibly penguins in the Antarctic—but whose actual existence is more imaginary, in terms of cases brought, than real.
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Again and again, Ministers have prayed in aid personal injury claims as examples of where a generally —or as it will be if the amendment is passed, “predominantly”—responsible attitude has been exhibited in the course of the activity subject to a claim. The Minister dwelt on this aspect on Report, saying that Clause 3,
“represents a change to the law in that it—”
that is, the existing law—
“does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendant’s conduct in these circumstances,
by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one”.—[Official Report, 15/12/14; col. 36.]
I repeat that the Minister’s amendment would substitute “predominantly” for “generally”. This formulation is effectively a set of thematic variations of a kind so enigmatic that they are positively Elgarian. We should recall that Clause 3 will apply not only to personal injury claims—the subject which most of your Lordships who have supported the Government, particularly the noble Lords, Lord Hodgson and Lord Hunt, have addressed—but to an enormously wide range of potential claims for negligence, breach of statutory duty or breach of contract, where the damage might be significant without any element of safety being in jeopardy.
Therefore, I repeat the question I asked at the earlier stages of this sorry Bill’s journey through the House: why should the negligent solicitor, accountant, financial adviser, architect, builder, tradesman or manufacturer, and more especially their insurers, escape liability to compensate an innocent client or purchaser because their conduct has been predominantly responsible—or in slightly different terms if the amendment of the noble Lord, Lord Pannick, is adopted—during the activity in question?
The amendments tabled respectively by the noble Lord, Lord Pannick, and the Minister seek to insert wording that is marginally better than the existing term “generally”, but significant questions still remain unanswered. What does “predominantly” mean? Why should the solicitor who drafts a will but allows a beneficiary to witness it, an accountant who prepares a complicated set of accounts but inadvertently omits one or two relevant matters—the Goldsmith example cited by the noble and learned Lord, Lord Brown—or a builder who, in constructing a house, fails properly to connect a radiator, thereby causing a water leak, escape liability because the rest of what they did in connection with their jobs was responsible? Moreover, what is the meaning of “responsible”? What does it actually impute?
Even if the amendment of the noble Lord, Lord Pannick, were accepted, this clause, far from clarifying the law, seems likely to promote more, not less, litigation, unless, of course, people of modest means, for whom legal aid will not be available, are deterred from bringing otherwise well founded claims and are thereby denied justice. But perhaps that is, after all, what the Government really want and what the Bill will produce if Third Reading is concluded this afternoon and it is enacted, as in all probability will be the case. It does not enlarge any substantive issue and addresses a problem which essentially does not exist. Clause 3 which, as I say, is the only part creating a new position, actually makes the legal position worse, and will prejudice a great many more people.