Clause 1
Compensation Bill [Lords]
6:30 pm
Bridget Prentice (Parliamentary Under-Secretary, Department for Constitutional Affairs; Lewisham East, Labour)
That is a helpful intervention, and I do want to try to achieve that aim. When I have summed up on the matter of public benefit, I hope that Opposition Members will withdraw their amendments on the basis that we will consider the point in some detail. I reiterate to the hon. Member for Canterbury that “socially desirable” is the approach that we want to take, but the courts balance precautions against risk and their wider impact. That may include economic considerations if their impact is particularly significant.
Amendment No. 5 would remove the words “functions in connection with” so that the courts could have regard to whether a requirement to take particular steps to meet a standard of care might “discourage persons from undertaking a desirable activity,” rather than from
“undertaking functions in connection with a desirable activity.”
Again, that would not be appropriate. The clause is intended to reflect the court’s current ability to take into account whether a requirement to take particular steps to meet a standard of care would discourage the provision of an activity. The amendment would change that focus so that it applied not to the volunteers and organisations providing the activity and undertaking functions in connection with it but to those participating in it.
There is no particular magic in the term “functions” and it should not be read as a technical term carrying a specific meaning to be argued over in the courts. It is intended not to restrict the application of the clause to specific acts or roles that may be performed but simply to reflect the range of contributions that may be made to support the provision of an activity from which people may be discouraged by the imposition of a requirement of precautions disproportionate to the risk involved.
Amendment No. 26 would affect the way in which courts take into account the impact of a requirement to take particular steps. In addition to the effects that the clause already enables courts to consider, they would be able to take into account whether a requirement to take particular steps would
“discourage persons or organisations from making land or water areas available for recreational, educational or adventure training purposes.”
The hon. Member for Canterbury gave clear examples of his concern that that might be restricted. I hope that I can assure him that the amendment is not necessary. The facilitation by landowners or occupiers of property of such obviously desirable activities is covered by the clause as it stands. By singling out particular aspects the amendment would imply that making land and other facilities available would not be part of or connected with a desirable activity but would be something different, requiring specific provision.
Existing law provides an additional element of protection for landowners in the circumstances covered by the amendment: when a landowner grants access to his or her land for recreation or education activities otherwise than as part of his business, he can exclude liability for loss, damage or injury caused by the state of the premises. That can be done by way either of a contractual clause or a notice adequately brought to visitors’ attention. That strikes a fair balance as it ensures that people using the land are made aware of the exclusion of liability arising from the state of the premises before undertaking an activity. The amendment is therefore unnecessary and could create confusion.