Clause 1
Compensation Bill [Lords]
6:30 pm
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
I understand the hon. Gentleman’s point. I shall talk later about the phrase “public benefit”, and will discuss the matter then.
The hon. Member for Canterbury said that “desirable activity” does not appear in previous case law. Although that is true, one of the Government’s reasons for using the phrase is that if we chose a term that had been used in case law, there was a risk that we might limit clause 1’s applicability to particular types of case. We deliberately took the decision to use a term that does not have any baggage from previous cases, but which captures the courts’ approach.
On that fine distinction, clause 1 will not affect the standard of care or create any new defence against liability. It simply identifies a particular fact that the courts can already take into account. The alternative wording opens the way for the argument that even if the court considers that the defendant did not take the steps that were reasonable in the circumstances, it may nevertheless decide that the defendant should not be liable because of the effect of liability on a desirable activity.
In addition, as was discussed at some length in another place, the term “social benefit” is arguably narrower than “desirable activity” and could miss certain cases to which the factor embodied in clause 1 would presently apply, such as those where the benefit is primarily economic. Therefore, I do not believe that amendment No. 27 would represent an improvement on the existing drafting, as it could create confusion and uncertainty. I refer hon. Members to the Latimer case. It was an economic decision that the activity was desirable and that it should continue despite some slippage on the factory floor.
Amendments Nos. 8 and 9 would replace the term “desirable” with
“legitimate sporting, recreational, educational or other socially beneficial”.
Again, that might be narrower in effect than “desirable activity” and might not extend to the same range of cases in which the courts have regard to such matters under current law. Although I understand why hon. Members want to focus on particular types of activity, I believe that it is important that clause 1 should accurately reflect existing law and the range of cases in which the factor embodied in the clause can be taken into account. The amendment would be an inappropriate change to existing law.