I beg to move amendment No. 11, in page 1, line 4, leave out ‘may' and insert ‘shall'.
What a pleasure it is to serve under your chairmanship, Mr. Caton. I am introducing the amendment as my hon. Friend the Member for North-East Hertfordshire has to leave our proceedings before the debate is likely to conclude. The amendment is small. It is an attempt to move the power of the court from a discretionary to a mandatory power. In its report “Better Routes to Redress”, the Better Regulation Commission concluded that the compensation culture is a myth. However, the cost of belief in it is real. I agreed with that conclusion and therefore support the principle of clause 1.
The Department for Constitutional Affairs report “Effects of advertising in respect of compensation claims for personal injuries” demonstrated how widespread is the perception that we live in a compensation culture. Quantitative findings suggest a very strong, widespread belief that there has been an increase over the past five years in the number of people making successful claims for personal injury compensation. The report showed that 87 per cent. of those who responded believe that more people claim compensation for personal injury than did five years ago. The majority expressed the view that a lot more—67 per cent.—were doing so, while 20 per cent. of people thought that a few more people were doing so. Only 1 per cent. thought that fewer people were claiming compensation. None thought that a lot fewer were. Those findings are of concern and underline the importance of clause 1, which is designed to add greater clarity and certainty to the law.
I do not deny that there is that perception, but the reality is different. The number of cases entered before the court is, in fact, dropping. One significant thing about clause 1 is that it works on perceptions of what is happening rather than the reality of what is happening on the ground.
The hon. Gentleman has pre-empted my later comments Clause 1 is designed to add greater clarity and certainty to the law. That is also the purpose of the amendment. There should be some readily understood clarity on what the clause seeks to do. The amendment accentuates the fact that clause 1 does not change the law but merely clarifies the existing law.
“The reason why we said "may" rather than "shall" is that when a court looks at a negligence claim it takes into account all the circumstances of an individual case; those circumstances, of course, vary dramatically from one case to another, as all those who are members of the legal profession will know far better than I.” —[Official Report, House of Lords, 15 December 2005; Vol. 676, c. 200.]
I understand that Ministers may be reluctant to fetter the discretion of the court, but the discretion remains in the overall provisions of clause 1, which enabled the court to consider all the circumstances of the case. The law should continue to develop. However, a clear statement is necessary for judges and the public. There should be some readily understood clarity on what it seeks to do.
What is wrong with the clause stating that the circumstances will be considered, if it does not amend the law? Why do Ministers not have the confidence to say that those matters are required, not optional? Greater clarity and certainty are necessary. I envisage, unless the Minister is willing to respond, endless satellite litigation on whether the judge should exercise the discretion, let alone on how the discretion is to be exercised.
Welcome to the Chair, Mr. Caton. Does the hon. Lady agree that it is hard to see why the Government would want to resist that? By putting “shall” instead of “may”, we are asking that the court will always take account of that condition. If it does not apply, that will be fine. However, it may be inferred from “may” that there might be occasions when the conditions should be taken into account but will not be. Does she agree that the amendment is a sensible—almost a housekeeping—change to ensure that the clause is properly applied.
I thank the hon. Gentleman for his thoughtful intervention. He has triggered my awareness of an omission in my introduction; I should have said that the amendment is introduced in the name of my hon. Friend the Member for North-East Hertfordshire, my own and that of the Liberal Democrat spokesman, the hon. Member for North Southwark and Bermondsey. I apologise for forgetting to do that.
I return to the Arculus report from the Better Regulation Task Force entitled “Better Routes to Redress”, which Members may recall was published in May 2004 and it put forward this view:
"an exaggerated fear of litigation, regardless of fault can be debilitating. The fear of litigation can make organisations over cautious in their behaviour. Local communities and local authorities cancel events unnecessarily and ban activities which, until recently, would have been considered routine. Businesses may be in danger of becoming less innovative and without innovation there will be no progress".
Those words underpin the strength of the case for being more certain about the impact of the legislation and therefore moving from a discretionary situation to a mandatory one. That is why I move the amendment.
I did not intend to be churlish in not welcoming you to the Chair earlier, Mr. Caton. I do so now and think we will have as interesting a Committee stage as we had on Second Reading.
I support the amendment. The intervention a moment ago by the hon. Member for Sherwood (Paddy Tipping) slightly missed the point. There may be a sharp decline in the kind of activities that attract litigation, but a fall in the number of cases does not show lesser willingness to litigate, it shows that activities are disappearing. That is perhaps a theoretical point.
The practical fact is that my colleagues and I in the all-party group on adventure and recreation in society—I am delighted to see my co-chairman, the hon. Member for Montgomeryshire, on the Liberal Democrat Benches, and our Labour co-chairman, the hon. Member for Sittingbourne and Sheppey (Derek Wyatt), made a powerful speech on Second Reading—are concerned not by the great raft of litigation across all headings but by the amount relating to adventure training, sport and physical recreation, which is a very small proportion of the total. The overall statistics are not relevant.
The hon. Gentleman confuses the argument. He accuses me of saying that the number of cases has gone down because people have been put off activities, but has now admitted that adventure and outdoor training, which is indeed important, is a very small part of the claims total. If we are legislating, we must legislate from fact, which is that claims registered are decreasing, rather than from perception.
The hon. Gentleman makes a good point, but the fact is that America, which has the worst compensation culture in the world with more than five times our level of litigation, has a much higher barrier in most states to protect sport and adventure training than would be created even by a clause 1 strengthened in the way the amendment proposes. In most American states, reckless disregard must be proved, which means in practice that intent must be proved, and my concern is with those areas. My hon. Friend the Member for Upminster (Angela Watkinson) made a powerful case by saying that the courts should take the circumstances into account rather than having the option to do so.
It would be burdensome to repeat the case from a court in Manchester that I described in detail on Second Reading, as almost everybody here was present. However, I ask hon. Members to consider whether the judge in that case, which took place while the matter was being debated in another place, would have bothered to use his discretion in the way the clause advocates. Hon. Members will remember that he awarded £15,000 against the Scouts for allowing a Brownie to cut herself by sitting on a seat in an auditorium that had been doubly inspected before a pantomime that the Scouts were performing for the Brownies.
Ian Lewis, the director of Campaign for Adventure, which brings together most of the adventure training organisations in this country, commented:
“The British Hang Gliding and Paragliding Association and the British Horse Society...are being forced to close centres because the insurance is becoming unaffordable. This is because the judiciary fail to realise the implications of their decisions and perceptions related to them.”
The question is not about the wider compensation culture but whether the activities of youth, adventure training and sporting groups are being affected by the kind of decision that was not made 15 years ago.
I mentioned on Second Reading that I have submitted a string of cases to the Government. When the all-party group submitted them, we were told that they did not have law reports and so could not be taken into account, even though we provided dates, locations and the names of the judges concerned. There were cases against the Scouts, a case against a yacht club and a case against a rugby club; there was a whole string of them. In only one case, that of the rugby club, was there a fair degree of argument on both sides. In every other case, the ordinary layperson would have agreed that it was completely unreasonable, if we want people to operate voluntary organisations for the benefit of young people and others who want those opportunities, to make such decisions.
I shall quote a new ally. The website of the Royal Society for the Prevention of Accidents says:
“Exciting and stimulating play areas not only contribute to the physical and psychological development of the child but also discourage children from playing in dangerous locations such as railway lines, canals and river banks and alongside roads.”
Indeed, on the “Today” programme on 15 June, David Yearley of ROSPA said that in his view, play areas were simply becoming “boring”. TheDaily Telegraph also reported that he told an international play safety conference at Loughborough, Leicestershire, that playgrounds should be
“as safe as necessary, not as safe as possible”.
That is not the mentality of modern judges, and the cases that I have quoted illustrate that.
The Girl Guides, who have a waiting list of 50,000 girls and are 8,000 volunteers short, have stated:
“We want the Bill to renew the recognition by the public at large that there is an acceptable degree of risk in worthwhile activities for children and young adults...The perception that anyone working with other people’s children risks being sued for even the most minor accident is hugely detrimental to children’s freedom to partake” in adventure activities
“by discouraging existing volunteers to run activities”.
The hon. Gentleman says clearly that he wants to protect people who act as risk takers and look after children, but we should surely not stop people made genuinely ill or injured at work, due to negligence, from having the right to make a legitimate claim.
I have never suggested, nor would anybody, that we should. Mr. Caton, your earlier ruling presents me with a slight difficulty. The essential point, to which we shall come in our discussion of the third group of amendments, relates to the workplace. The members of the all-party group are anxious that desirable activities should be more narrowly defined, so that they do not include those at workplaces, except when people work in sport and adventure training.
I am anxious to support a specific protection for people involved in providing inherently risky activities. A degree of managed risk is healthy. As ROSPA and the Campaign for Adventure have said again and again, if we do not provide children with opportunities to take risks in a controlled and sensible environment, they will find their own ways of taking them. ROSPA gives some pretty dramatic examples of that: children being drowned in canals, or, to give an example that I cited on Second Reading, more and more kids getting on to railway lines—
I did not mean to cut the hon. Gentleman off in mid-flow; I was enjoying the passion with which he was speaking. Does he recall that Professor Heinz Wolff, the celebrated scientist, regards risk almost as a vitamin? If a person is deficient in a vitamin, they will find a way to get it.
What the amendment and the Bill must do is recognise that the best that the Government can do is manage risk, not pretend that it can be eliminated. Some of the people concerned about the amendments seem to be mixing those two things up.
That is exactly right. The hon. Gentleman is my friend, although I am not technically allowed to call him my hon. Friend. What he said is precisely the point. As the right hon. Member for Holborn and St. Pancras (Frank Dobson) said in one of his brilliant speeches during the Committee stage of my private Member’s Bill, it is so important that legitimate outlets are provided.
Children need the opportunity to get bumps and scrapes in playgrounds. If they do not, they will go and play somewhere else. The chairman of the all-party group on play, the hon. Member for Bishop Auckland (Helen Goodman), kindly copied me the letter that she has written the Minister, and I was pleased to see that she made exactly that point. She is anxious that the amendment should succeed.
In 2003, Sport England and the CCPR did a joint survey that revealed that risk, fear of the blame culture and the threat of litigation were by far the biggest threats to people volunteering in the area of sport and adventure training. On Second Reading, I cited the Scout Association, which 30,000 youngsters are waiting to join because it cannot get enough Scout masters;69 per cent. agreed that the recruitment of new volunteers is being made more difficult because of the fears of being sued, and 92 per cent. agreed that risk aversion is affecting the range and nature of activities offered to young people.
The cases that we are discussing have all arisen during the past 12 years or so. Of all the cases sent to us—they have come from so many different organisations, not only the Scout Association—not one happened before 1993. We need to provide protection. Passing the amendment, which would strengthen the clause, is the best way to do that, although to meet the fears of the hon. Member for Blaydon (Mr. Anderson), some of the amendments in the third group could be put in. They would balance the objections that I know the Minister will raise. He will say that the amendment could result in burdensome and unnecessary discussions in cases for which they were clearly irrelevant. To avoid that, we need to make some of the changes that we shall debate later.
I shall look abroad once more for a moment. I mentioned America earlier and in the same way, a number of states in Australia have made changes to their laws. A commentary on the Western Australian Civil Liability Amendment Bill on the state’s website states that the Bill
“requires consideration of the usual factors (the probability of harm, the likely seriousness of that harm and the burden of taking precautions) but also ‘the social utility of the activity that creates the risk of harm.’”
The courts are required to set out specifically why liability should or should not be imposed. I know that the hon. Member for North Southwark and Bermondsey has had an interesting interaction with his own law expert, and I am grateful to Peter Charlish, who is a senior law lecturer in the field at Sheffield Hallam university. Commenting on the position in America, which I outlined a moment ago, he said:
“The truth is that in this country the choice is not between careful and careless volunteers. It is between protected volunteers and no volunteers at all.”
Thank you, Mr. Caton. I had in fact almost finished. I am happy to end there by saying that we hear an awful lot about the yob culture, the problems of obesity and a lot of people running young people down. By strengthening the clause, which is by far the most important clause in a good Bill with support in all parts of the House, the Committee can do something about that.
Does my hon. Friend agree that the Bill does not just assist high-risk and adventure activities but ordinary, traditional activities for Brownies and Guides such as using scissors or skipping ropes, which could not normally be expected to be dangerous or involve risk? People are being deterred from using such things because of people’s propensity to litigate now when a slight accident happens that could not reasonably have been anticipated.
My hon. Friend is absolutely right. I cited a case on Second Reading and I shall cite another now, if the Committee will forgive me. It involves the Scouts and an ordinary activity that most people would not regard as highly adventurous. I can give chapter and verse on it, and I have sent the case to the Government. About three or four years ago a Scout team set up one of those plastic slides on the side of a hill with a hose running down it. They actually got crash helmets for the children. A leader of another group of youths came up and asked if they could have a go too. The youth leader himself grabbed one of the helmets, put it on wrong and dived head first down the slide—you are supposed to go feet first. In the process he cut himself quite badly. He brought a case against the Scout leader, who, four years ago, a British court of law described as negligent. A significant cash award was made. I can provide any hon. Member with the details of the case.
I have listened carefully to the hon. Gentleman, who argues well the case about risk aversion being the reason why people are not getting involved. Is it not the case that throughout society there are fewer people willing to put themselves in the front line and volunteer? Volunteering is disappearing off the map, and it is not just about risk aversion. Local clubs and organisations cannot find volunteers tocome in.
I entirely agree with the hon. Gentleman, but I am making the point that by far the largest survey ever done on the matter, by the CCPRin 2003, listed eight factors. They are all there—family pressure, job pressure and so on—but the factor covered in the clause was by far the top one cited.
I have taken more time than I intended. I urge the Committee—particularly the Minister—to think about strengthening the clause. It is our best chance of doing something to protect volunteers in this crucial area.
On a point of order, Mr. Caton. I heard what you said earlier about clause 1 stand part. Will you reflect on whether, after the debates on the groups of amendments, we might not need a short stand part debate? Behind all the detail there is the issue of whether we need the clause at all, and it might be useful to preserve that to a later opportunity.
I am grateful, Mr. Caton.
I added my name to the amendment because it seemed that it would help to deal with one of the dilemmas that were discussed on Second Reading. That interesting and wide ranging debate, which the Minister and many others of us will remember, had as its central question whether the clause seeks to add to the law or to confirm what it is now. There were those who had given evidence to the Select Committee on Constitutional Affairs, and we heard the view of the Joint Committee on Human Rights. Those who said that we should not have clause 1 said so, among other reasons, because if we add to the case law a new Act of Parliament defining such things, the lawyers will go off and start to re-debate the issue. That is a perfectly reasonable argument. I understand it completely. The debate was therefore on whether case law is sufficient, or whether we need statutory clarification.
The second bit of the debate reflected on the fact that, just a few years ago, for the first time, in the well-known and oft-cited case of Pepper v. Hart,the courts in this country ruled that in certain cases the courts could look at material other than the legislation in order to decide what it meant. The House of Lords, sitting as a Judicial Committee of the House of Lords, decided that
“clear statements made in Parliament concerning the purpose of legislation in course of enactment may be used by the court as a guide to the interpretation of ambiguous statutory provisions.”
So we have first to debate whether clause 1 is intended to change the law or to confirm it and, secondly, if it is intended to confirm the law, whether it is better to do that by legislation or by a statement elsewhere that seeks to clarify the law. I hope that I can persuade colleagues of every party to support the amendment. I do not know what motivates the hon. Members for North-East Hertfordshire and for Upminster, but I am advocating it because if we want the clause to be as close as possible to the present law, it must be something that is taken into account all the time, not some of the time.
I argue that because I got up particularly early this morning—it was a lovely morning so it was not much of an effort—and read all five judgments in the most recent case that everybody has cited, that of Tomlinson, which was decided in 2003. It was brought by a young adult, Tomlinson, against Congleton borough council. I shall not summarise it except to say that it concerns a young man of about 19 who went to a gravel pit in Cheshire that had been filled in with water. It was a lovely summer’s day and he ran into the water, then sort of dived ahead. He hit his head and injured himself.
The case concerned whether he could get damages from the borough council or the county council, which were the two responsible bodies. In the end, the Court of Appeal said yes, but the House of Lords overturned that and said no, on the basis that, for a variety of reasons to do with statutory liability and negligence, he was held to have taken the risk on himself, and it was not so serious a breach of the actual or implied conditions of using the gravel pit, which had become a lake, that he was breaking the rules. Had he gone swimming, he would have arguably been breaking the rule because there was a “no swimming” notice. He did not get as far as that, because he ran in and sort of dived ahead of himself and injured himself.
The most famous judgment is the one by Lord Hoffmann; he gave the main judgment. I want to cite two sentences from two of the other judges who were in the majority and came to the view that there was not a liability on the two councils. The first was Lord Hutton, who, when citing an earlier case, said that
“it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so.”
Such issues are all that the hon. Member for Canterbury (Mr. Brazier) and others are arguing about. If, as I did between Christmas and new year, someone decides to climb a mountain in north Wales and the situation gets hairier, darker and wetter and so on than they expect it to be, who do they sue? Is it the Snowdonia national park authority? Alternatively, do they take the decision to climb the mountain and if things do not go as they planned, that is their responsibility? I take the view that we have such choices to make and we should not discourage people by making the landlord think that they will prevent people from going on the land.
The other sentence in the judgments that I thought was useful was in the last judgment in the case, which was given by Lord Scott of Foscote. He said:
“Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone”.
That is the attitude with which I come to this debate and issue, and it is clearly the decision that the courts—in that case it was Lord Scott of Foscote—took in the case of Tomlinson.
If the Minister wants to argue, as she did on Second Reading, and I understand her doing so, that she is seeking to clarify the law rather than change it, that has to be something the courts take into account all the time, not just some of the time. It is no good saying, as the current drafting does:
“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps”.
If we leave the wording as “may”, by definition it means that the court need not. If the court need not, we are clearly changing the current, most recent and most senior judgment in the English courts and therefore opening up a whole set of options for lawyers to say, “Well, this is not something that should have been considered”.
The hon. Gentleman is making an extremely powerful speech. Does he not agree that the most worrying aspect of the Tomlinson case was that courts right up to the level of Court of Appeal did not take that view, which is why it is so important that we should send out a clear message?
That is certainly the case. Indeed, there is pretty robust wording, particularly from Lord Hoffmann, who said that the Court of Appeal had clearly got it seriously wrong and that it was being far too protective and was trying to protect people from risks. There was an important section of his judgment, part of which was cited on Second Reading, some of which is worth repeating. By and large, it is good, readable stuff. There is a section in which he cites lots of previous cases. He states:
“There are two other related considerations which are far more important” than financial cost, which he put further down the tree. He continued:
“The first is the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming. And the second is the question of whether the Council should be entitled to allow people of full capacity to decide for themselves whether to take the risk.”
Of course it is different if a child or someone who has learning difficulties or some other mental illness is involved, but a normal adult human being is expected to be able to make such choices. Lord Hoffmann had a go at the court below him for saying that it had been far too defensive of a position in which risk was something that should not be taken. It was a question of freedom and he pointed out that in this country people should be given maximum freedoms.
I want to pick up the point made by the hon. Member for Midlothian (Mr. Hamilton), which we ought to put on the record. He is absolutely right. Whatever the number of people in the Scouts or Guides or elsewhere waiting to take part in those and other youth activities, one of the problems is that there is a shortage of people volunteering. Everybody says that volunteering is fantastic. We honour it here, we have celebrations in our constituencies, we do all we can, but there is a real shortage. We must be very careful that what we do does not put people off by making them think that they are going to be clobbered for a liability.
I am a trustee and the chairman of the governors of a primary school just over the river and the reality is that we have volunteers who come in and help. Yes, they are cleared in the appropriate way, as discussed downstairs earlier, but we have people who come in and help. They—let alone people who might volunteer for youth clubs and so on—are not going to come and do school journeys and trips and things if they think that they might be liable in some way. That is an important point. That is why I hope that the Minister will be sympathetic to considering making this compulsory, as it were.
My last point is that there is a bigger issue involving exactly what the clause is and how one defines what it is trying to do. I am not trying to anticipate that debate. Amendments have been tabled that will allow us to discuss that. Whatever view we come to, whatever we say should be the right formulation of the public benefit—the desire to make sure that people can take risks—none the less there should always be the same rule governing the judges, rather than their discretion.
I want to end with anticipating what I think the Minister might say—that this is a drafting or stylistic matter, that parliamentary drafters always put it that way, that they always say “may”. They always allow the judges to do that and put “may” because that looks as though it does not bind the hands of the judges. I think that if one says “may” one should mean “may” and if one says “shall” one should mean “shall”. That is why I hope that we can get a consensus. I think that this should be changed so that there is no option; if we decide that these are the sorts of things that judges should take into account and if we decide that we are going to try to make this as near to the present law as possible, let us say that unambiguously and not leave another set of things that can be litigated in the courts at great cost.
This has been a useful opening debate on clause 1. Behind it all there is a great deal of consensus, which I also felt on Second Reading. Everyone here believes that we have become too risk averse and that we need to change that. I agree with the Royal Society for the Prevention of Accidents and with others—for example, my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson), who was referred to earlier—who say that children need to have the opportunity to take part in some activities that may contain an element of risk.
I remember having a discussion about this area of the law shortly after Second Reading with a colleague who said, “Oh for heaven’s sake, we used to go on swings or roundabouts, whatever, fall off them on to the soft padding put down and it never did us any harm”. I thought that he was clearly a lot younger than me because when I used to fall off, there was no padding. We scraped our knees on a regular basis, but as we always say, it never did us any harm.
The serious point is that experiencing such situations is part of growing up. I very much accept the comments about encouraging people to be volunteers and to make them feel reassured that by volunteering—whether for the scouts or the brownies, or accompanying school trips or whatever—they will not be subjected to frivolous, unnecessary and inappropriate court cases. I have to say that I do not feel that the amendment is appropriate, for reasons that I shall explain.
It is not the Government’s intention in clause 1 to change the law. The hon. Member for North Southwark and Bermondsey is right about that. However, when the courts consider a claim of negligence or a breach of statutory duty, it is important that they can take all the circumstances of the case into account so that they can reach a fair and just decision. As the hon. Member for Upminster said in her opening remarks, the circumstances will vary from case to case, and it would not be appropriate to require the factor embodied in the clause to be taken into account in every case, because it might not always be relevant. That would add cost and complexity and might encourage argument on that point in all cases.
The point that I am trying to make to the hon. Gentleman and other advocates for the amendment is that the courts already take into account all the factors surrounding a case. Requiring them to take the factor in the clause into account in all cases might imply that it is more important and should carry more weight than some of the other factors that the court has to consider. It is important that the court decides in each individual case what weight to give to each appropriate factor.
I do not think that the Minister’s argument makes sense, even though she is a great Minister—rather greater than her argument, in fact. I hope that I am quoting her exactly, but I think that she said that “the courts already take into account all the factors surrounding a case.” If she means that and she assumes that all the factors will be taken into account and that the Bill does not change the law, she needs to explain why putting “shall” instead of “may” alters anything. According to her argument, the courts already shall take into account everything in clause 1. She is using a somewhat spurious argument against what seems a common-sense change.
I disagree with the hon. Gentleman, although it grieves me to do so, because he always puts his case cogently. As I said, the courts take into account all the factors in the case, but if we specified one above all the others, we would be putting more emphasis on it. My point is that the statute should not be too prescriptive, and I ask the Committee not to accept the amendment, because it is not appropriate.
I will be careful not to enter into a conversation, Mr. Caton, and this is my final intervention on the amendment. I simply do not accept that including the word “shall” in a piece of legislation called the Compensation Bill would give a court the slightest indication that it should necessarily prioritise the content of clause 1 above all other considerations in a case. I stress again that the Minister said, rightly, that “the courts already take into account all the factors surrounding a case.” She really needs to explain why the drawbacks of changing one word in a clause that already directs—to use her word—the court to take account of the deterrent effect of potential liability would so outbalance the benefits that she is resisting the amendment.
To take an example that has already been mentioned, the Government’s interpretation of the opinions of the House of Lords in the Tomlinson case is that they do not show that the courts will always balance considerations in the way that the hon. Gentleman suggests. However, they do show that the courts will always consider whether they should do that, and clause 1 will not change that. It is for that reason that the amendment would not be appropriate.
Let me try to reassure hon. Members, because I know that they approach the issue seriously and with extremely good intent—an intent that I can understand and have some sympathy for.
Does the Minister agree that requiring the court to take the matter into consideration would not predetermine what conclusions it came to? It would simply mean that that aspect was considered, alongside all other relevant aspects. Although the circumstances of cases will vary widely, the amendment would at least ensure a consistent approach in terms of principle in the consideration given by different courts and by different judges. We would know that that aspect would be taken into account.
I understand what the hon. Lady is trying to achieve, but I say this to her—it relates to what the hon. Member for Canterbury asked. If we required the courts to take all these factors into account in every case, we could, in cases in which a certain aspect was irrelevant, be extending proceedings, increasing costs and so on. Let us consider, for example, a case involving professional negligence by an auditor, which clearly would not fall into the kind of categories that we have been using today. The rules governing professional standards are clear enough already, and the courts know how to deal with such a case. I reassure hon. Members that as the clause is drafted the courts will consider in every case, as they do now, whether the factor identified in clause 1 is relevant in the circumstances of the case.
The auditor case surely illustrates why, in a later group of amendments, we try to focus “desirable activity” more closely, but will the Minister answer one question? Given that there have been a series of bad judgments in the lower courts, including a monstrous judgment by the Court of Appeal on which the House of Lords has rightly made strong comments, is the Minister not keen to send a clear message to the lower courts about the impact on the activities that we all want to protect?
I certainly hope that as a result of the debates that have taken place here and in the other place, we send a clear message to the courts and I am sure that the Tomlinson case sends a clear message to them. The role of the House of Lords is precisely to make a judgment in a case such as that one, which tells the lower courts, “This is the way we, as the highest court in the land, believe you should be interpreting the law.” I do not want to undermine the capacity of the judges in the House of Lords, because what they are doing is exactly what the hon. Gentleman wants to happen. That message is getting out or will get out to the lower courts.
The word “may” in clause 1 will not prevent the factor embodied in clause 1 from being considered wherever it is relevant. It will ensure that, where it is relevant, it is given appropriate weight when considered against the other factors that the courts take into account.
One could argue that “shall” would have the same effect in terms of interpretation, but may I give the Minister one more reason to reflect on whether she can accept the amendment? Section 2(4) of the Occupiers’ Liability Act 1957 states:
“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)” and so on. The court will, I put it to the Minister, consider all the circumstances. The amendment would ensure that it considered the factor in clause 1 as well as every other. Perhaps she could help us unusually by taking advice and, if she can be brave, letting us see the legal advice that she has been given on the clause.
I am very happy to let the Committee see the legal advice that we have on the clause. The advice that my noble Friend Baroness Ashton and I have received is that, as we intend not to change the law but to clarify it, it is not appropriate to change “may” to “shall”. However, we want to ensure that the courts are not obliged to give detailed consideration to it, even in cases in which it is irrelevant, or to consider arguments that it is to be seen as a first or paramount consideration. The hon. Member for Montgomeryshire said in an intervention that the Government’s job is not to eliminate risk but to manage it. I agree with him. This is, therefore, the appropriate approach for the courts to adopt, so I invite the hon. Lady to withdraw the amendment.
The amendment is probably the most important to the Bill. Notwithstanding the Minister’s helpful remarks and attempts to reassure the Committee of her good intentions in retaining the status quo, it is disappointing that she does not feel able to acceptthis small but significant amendment. I shall not askthe Committee to vote on it, but we will return to the matter on Report. I beg to ask leave to withdraw the amendment.
With this it will be convenient to discuss the following amendments: No. 3, in page 1, line 8, leave out ‘a particular' and insert ‘some'.
No. 4, in page 1, line 9, leave out ‘a particular' and insert ‘some'.
Clause 1 asks the courts, in determining whether a defendant should have taken particular steps, to have regard to the factors in paragraphs (a) and (b). At present, for a claim to be successful, the claimant has to show, and the court has to agree, that the defendant has been negligent because he has failed to do something. The reference to determining particular steps is not helpful. It is described by the Association of Personal Injury Lawyers as meaningless, and will inevitably lead to argument about the extent to which a desirable activity may have been prevented.
There is more than a possibility that such a change in law would result in conflicting judgments in lower courts, as every judge in each individual case would devise different steps that he thought that defendants should take. It would also lead to additional burdens on the courts which, as we know, are already overstretched. In that respect, the wording of clause 1 is unworkable in the courts.
Both defendants and claimants will suffer unfairly if the clause is not amended in the way that I have suggested. First, claimants will be unfairly burdened, as they should not be expected to devise risk assessments on behalf of defendants. Secondly, the clause is unfair to defendants because they will not know what steps they should have taken in any given circumstances. The amendment would remove those problems.
The clause should not in any way change current negligence legislation, but that is what it might do as drafted. It might bring about unintended changes that would burden our court system, leading to conflicting judgments, and unfairly burden both defendants and claimants. I am not sure of procedure, Mr. Caton. Should I introduce amendments Nos. 3 and 4 together with amendment No. 2?
Amendments Nos. 3 and 4 make a similar point, but they build on it. Although the Association of Personal Injury Lawyers is not in favour of clause 1, it has highlighted the use of the word “particular”. It believes—and I agree—that the absence of a proper definition of that word will lead to further debate in court about the extent to which a desirable activity may have been prevented. In particular, it implies that defendants should have taken specific steps, and that is unfair on defendants, as they will not know what steps the court might decide that they should have taken in any given circumstances.
Is not the real issue here the possibility of watering down the protection offered to people at work, for example? The hon. Lady talks about removing the word “particular”, so the employer would know better what steps to take, but she forgets that the balance is being shifted in a way that seems to water down the protection that a claimant or a worker ought to expect to be provided.
The hon. Gentleman will know that incidents at work in particular involve health and safety at work legislation as well, which has inherent protection for employees. We are seeking to introduce consistency in the way that the courts approach the widely varying cases that they deal with.
The word “particular” should be replaced by “some”, as that would send out a clear message to those who are involved in desirable activities that they need to take some steps to prevent accidents, but not unknown particular steps that will be determined at a later stage in a court of law. That indicates to those involved in desirable activities that they must act responsibly and take steps to prevent foreseeable accidents, but preserves the current law and does not require every conceivable eventuality, however fanciful, to be covered. Common sense should be allowed to prevail.
As it stands, clause 1 enables the court to consider whether a requirement to take particular steps to meet a standard of care might prevent a desirable activity from being undertaken to a particular extent or in a particular way. The amendments would mean that, instead, the court could have regard to whether the defendant should take steps to meet the standard of care and whether the effect of doing so would prevent a desirable activity from being undertaken to some extent or in some way. That would not be an improvement on the current drafting.
In relation to amendment No. 2, the issue is not simply whether the steps that should have been taken could be interpreted as suggesting that the clause would be applicable only where the court has to consider whether the defendant should have taken any steps at all. In many cases, however, the issue will not be whether the defendant should have taken any steps at all, but whether he should have taken identifiable steps beyond those which he took.
In referring to “particular” steps, it is certainly not our intention to suggest that the clause requires any new steps or any specific set of steps to be taken. The current wording is intended to cover any steps that it is alleged the defendant should have taken to meet the standard of care in the circumstances of a specific case. That is a more precise, clear way of expressing how the clause is intended to work.
In relation to amendments 3 and 4, in using the word “particular” it is not our intention to suggest that desirable activities must be affected in a new or specific way for the courts to be able to take that effect into consideration. The current wording is intended to cover any effects on the operation of a desirable activity in the circumstances of a particular case; as with the phrase “particular steps”, it is calculated to refer to the effects that it is argued that requiring those steps would have. Just as the particular steps that the court will consider are those that it is argued are necessary to meet the standard of care, so the particular effects that the court will consider are those which it is argued might follow from requiring those steps. On that basis, I do not believe that there is any risk of the courts misinterpreting the clause. I invite the hon. Lady to ask leave to withdraw the amendment.
I take some reassurance from what the Minister says. The purpose of the amendment was to protect people from being expected to foresee something that was not predictable, took everybody by surprise and could not reasonably have been planned for, with suitable steps taken to protect the person who was injured. On the strength of the Minister’s statement, I beg to ask leave to withdraw the amendment.
I beg to move amendment No. 27, in page 1, line 7, leave out from beginning to end ofline 11 and insert
‘take into account the social benefit of the activity undertaken by the claimant and the effect of liability for negligence or breach of statutory duty would have in deterring other such activities of identical or similar social benefit from taking place.'.
With this it will be convenient to discuss the following amendments: No. 8, in page 1, line 8, leave out ‘desirable' and insert
‘legitimate sporting, recreational, educational or other socially beneficial'.
No. 28, in page 1, line 8, leave out ‘desirable' and insert ‘legitimate'.
No. 5, in page 1, line 10, leave out ‘functions in connection with'.
No. 9, in page 1, line 11, leave out ‘desirable' and insert
‘legitimate sporting, recreational, educational or other socially beneficial'.
No. 29, in page 1, line 11, leave out ‘desirable' and insert ‘legitimate'.
No. 26, in page 1, line 11, at end add—
‘(c) discourage persons or organisations from making land or water areas or courses available for recreational, educational or adventure training purposes.'.
I will speak to amendment No. 27 standing in my name, and amendments Nos. 28 and 29, which are the other two amendments in this group that I tabled.
The purpose of the amendments is to open up the key issue in clause 1, which is the “desirable activity” question. When we debated clause 1 on Second Reading, the central issues were whether it was right to include a definition that said that desirable activities should be treated differently from other activities, and whether the phrase “desirable activity” could be included, given that so far there does not appear to be any established definition of it. It causes some difficulty.
Having thought about the matter at that time and since then, I have come to the view that “desirable activity” is the wrong phrase. I understand why it is present and the motivation behind it, but it is the wrong phrase. It will get Parliament into the difficulty that the hon. Member for Hendon (Mr. Dismore) pointed out in his contribution on Second Reading. He obviously opposed clause 1 as a whole, but putting aside his general opposition, he made a good point about desirable activity.
The way that I put it on Second Reading was that if one took the duty of a doctor and the duty of a tattooist to their patient and customer respectively, there would be general consensus that the doctor was carrying a desirable activity but the tattooist would not be put in the same category. Arguably, if a tattooist were taking off a tattoo that had become a difficulty for somebody psychologically, that would be desirable—I understand that—but by and large one would say that desirable activity is what doctors do generally. Let us focus on the case of a doctor treating a patient. The Bill states:
“A court considering a claim in negligence or breach of statutory duty may”— take out the middle bit just for a second as though it were in brackets—
“have regard to whether a requirement to take those steps might...prevent a desirable activity from being undertaken at all”.
The question is whether a restriction will mean that a desirable activity cannot take place because the risk is too high.
Staying with the medical analogy, we all know that many operations involve risks. Patients are asked all the time, “Are you willing for this to go ahead?” Operations on the elderly often do not happen because of the risk of a heart reaction, even though the operation is on a different part of the body. Those desirable activities involve a risk.
I have tried to tease out whether there is a better way of dealing with such issues, and I suggest that there are some ways of doing so. The amendment puts up a coconut for us to shy at to see whether it stays; it offers a better proposition by rephrasing the clause. I know of only two other options that are potential candidates for inclusion in the definition. One is set out in amendments Nos. 8 and 9, which were tabled by Conservative members of the Committee. They refer to legitimate activities of a certain type. I also use the word “legitimate” in my amendments Nos. 28 and 29. The alternative to saying “desirable activity” is to say “legitimate activity”. Provided it is a legal activity, one should seek to encourage it; but it would cross the line if it were an illegal activity.
My hon. Friend the Member for Montgomeryshire has just returned. I hope that he will not mind, but although I had not planned to, I will cite an example of an activity that he took part in. It was not his most risk-free moment. He has many skills, and flying is one of them. I testify to the fact that he does it well—as far as I know, because I have risked my life with him only once. We went up, went along, and went down again, so that was satisfactory. It was an hour’s worth of views over north-west England, so it was a good test. Another thing that he has done that I have not yet tried with him is paragliding, which, of course, led him into difficulty some years ago; as Committee members may remember, there was a crash and he was severely injured. That is a legitimate activity.
It is easier to divide things into legitimate and illegitimate than to get into a value judgment about “desirable” without having any other definition. After teasing this matter out, it may be that we will need two tests: the first will be whether the activity is legitimate and, if it passes that hurdle, there will be something else, which may or may not be “desirable”. I have suggested an alternative.
The clause is supposed to clarify present law. Everything that the hon. Gentleman has spoken about would give lawyers opportunity to make the law even more unclear than it already is. My hon. Friend the Member for Hendon was right to say that we should get rid of the clause.
I understand that point of view, and as I said on Second Reading, there is a strong case for it. Evidence has been given to committees, and they have said that this is not a helpful clause. I hope that, on Second Reading, I expressed a fairly equivocal and balanced view. I declare my interest: I qualified and practised as a lawyer, but I have not done so for a long time. I am absolutely not trying to produce more work for lawyers, and I understand the risk. Getting the word “desirable” out is important because there is no precedent for it; it is not one of those phrases on which there have been 28 law cases. That word would give lawyers lots of cases; I can see myself writing the opinion and saying that the word could mean this, that, or the other.
I hope that I am carrying the hon. Member for Blaydon with me; whether we will stay together until the end of the debate, I do not know. I shall try first to get “desirable” out of the way, because it is a lawyer-encouraging zone. There cannot be a legal debate about “legitimate” and “illegitimate”; something either is or is not legitimate. Parliament has decided, and there is no chance of making any money by going to the courts to argue the matter.
We are then left with the question of whether there is anything else, other than the straight legitimate/illegitimate threshold. My amendment says:
“take into account the social benefit of the activity”.
Rather than making a value judgment on whether we use a phrase that has never been tested in the court, I have tried to use a phrase for which there are precedents, and there are precedents for things such as social benefit of activities. It is a much more general, slightly less personal phrase. If we ask, “What is the social benefit?” we mean, “What is the benefit to people in general?”
There is only one other runner that I thought of. Actually, I was prompted to think again about it last night, when I went to the National Council for Voluntary Organisations reception downstairs. Its members came here to talk to colleagues about the Charities Bill. The controversial part of that Bill, which has just started its passage in the Commons, having been in the Lords, is the question of what is a charitable purpose, particularly in relation to private schools. The test in the current draft of that Bill is the public benefit test, so the other runner could be, “Is this of public benefit?” The slight problem with that is that one might then be limited to the definitions in the Charities Bill. They are fairly wide ranging; there is a whole list of things that would be regarded as being of public benefit, and they cover poverty, education, religion, health, saving lives, arts, culture, sport and so on. So we could run with another option, but I am suggesting that “social benefit” might be the best phraseology.
I am trying to ensure exactly what the Minister and the hon. Member for Blaydon said that they want the Bill to do: not change the law but keep it. The most recent cases—the Congleton case and the Donoghue case in 2003—appear to be nearer to what the courts were then saying than “desirable activity”. I am simply trying to make sure that what we are saying in this Bill gets as near as possible to the law.
I did not have the relevant page in front of me earlier, so I will refer one more time to the Tomlinson case to finish the statement of the facts—just for those who are interested in these matters, because we might as well add some human interest to these Committee debates so that people might look at them. The guy in the Tomlinson case was 18. The event occurred on the May bank holiday weekend in 1995 at Brereton Heath country park between Holmes Chapel and Congleton, which I guess is still run as a leisure facility. The question is whether we can have something that accurately reflects what the court said. I shall end by making two points about what the court said.
In reference to my own experience, I broke my back in a paragliding accident. The local Conservative candidate, having seen me walking around in relatively good health a few months later, uttered the immortal words, “Ah Lembit, you were10 feet short of a by-election,” so what he regarded as a desirable outcome may have been rather different to what I did.
Does my hon. Friend agree that what is important here is that the Minister takes the opportunity to define in clear terms what she believes the phraseology means? I am inclined to agree with my hon. Friend on the word “desirable”, but the Minister can mitigate the situation by being clear about what she means. For example, despite my own mishap, paragliding is clearly a desirable activity in the sense that people should be entitled to make that judgment for themselves, and if they want to take on that activity they should be able to do it. I am hoping—and I hope that my hon. Friend shares this wish—that the Minister will make it clear that “desirable activity” cannot be a subjective judgment about what we individually like, but is an objective judgment about what we should like society to be able to do, should individuals in that society wish to participate in those activities, whether we like them ourselves or not.
That is a strong and appropriate intervention. The amendments are in a way cumulative. There is a suggestion that we should have “legitimate” as one of the thresholds. There is the suggestion that we have some other definition that does the job better than “desirable”. My hon. Friend made the point well that one person’s desirable outcome might be the other person’s least desirable outcome. That plays into the argument advanced by the hon. Member for Blaydon about the possibilities for lawyers. There is a danger in that.
The amendments offer a list of the sort of activities we are addressing. They are sporting, recreational, educational and social activities that personally or collectively help an individual or a group of people to enjoy their humanity more in one way or another. The purpose is to make sure that we all have experiences and that we do not prevent experiences in which we exercise our freedoms to challenge and push boundaries. That is where the Minister and the Government are coming from and where the Liberal Democrats come from too.
In a way, my final question is the most difficult point of all, but it goes back to the Minister’s key point. I am raising it now because this is the most sensible point at which to do so. My question is: if the amendments are passed, will we still be at risk of doing what the hon. Gentleman suggested—opening this part of the legislation to a new set of legal challenges? It took about 60 years for the case law to become clear, ending in the case three years ago that we have discussed. The first major case in negligence arose back in the 1930s—the Scottish case about the snail in the ginger beer bottle in Paisley. I presume that Paisley does not have any such mishaps these days.
The courts took a long time. We certainly do not want the process to take six years. The asbestos-related cases show that we do not want any long period of litigation. Therefore my other question to the Minister is that if we were not to have such a clause in the Bill, but she wanted to ensure that the courts interpreted the law in the way that all three major parties want, is there not an alternative that could give guidance without being law, a bit like the Pepper v. Hart rules? That is a serious question to see whether we can get at the objective by other means. Pepper v. Hart involved a tax inspector and was a case about the interpretation of detailed tax legislation. In the end, not surprisingly, people did not understand the legislation, so they had to look at what had been said in debate to get a rough idea of its meaning. That is entirely understandable with difficult financial legislation.
If we are trying to ensure that the courts are clear on the issue, if we do not want to put things off, if we want to allow people to take risks, if we want to be on the side of freedom, not intervention, and if we want landowners to take reasonable precautions, not unreasonable precautions, is there not a way that would avoid all the risks of endless court cases? I will be happy to withdraw the amendments, as well as the other amendments to clause 1, if the Minister suggests a better way of doing things. If not, we need to amend the clause. I am in her hands, and will be interested to hear what other colleagues have to say. I hope that that opens up the debate.
I want to speak briefly on amendments Nos. 5, 8 and 9, which stand in my name and that of my hon. Friend the Member for North-East Hertfordshire.
Amendments Nos. 8 and 9 have the same effect of removing the word “desirable”. The hon. Member for North Southwark and Bermondsey has already referred to the difficulty of interpreting that word, particularly in court. I think he referred to it as a lawyer-attracting zone. One could foresee the pitfalls if the word were to remain in the clause. It is wide open to interpretation and to questions not only about whether an activity is desirable, but about to whom or for whom it might be desirable. An activity might be desirable to the individual concerned but have no socially beneficial effect: taking illegal drugs is probably very desirable to someone who is addicted to them, but it certainly does not have any social benefit to anyone else. The amendments are intended to clarify the clause by adding a more specific phrase, so that legitimate sporting, recreational, educational or other socially beneficial activities are covered.
At the same time, we wish to leave out the phrase “functions in connection with”, because we feel that it is superfluous and clouds the meaning of the line. If the amendments were to be accepted by the Minister—I am looking to her for some indication of sympathy—the clause would read “discourage persons from undertaking legitimate sporting, recreational, educational or other socially beneficial activity”. With those amendments, the clause would be much clearer.
I shall first speak on amendment No. 27 and amendments Nos. 8 and 9, the latter being a consequential amendment. I shall then address my own amendment, No. 26.
As has already been made clear in both of the previous speeches, the term “desirable activity” is too broad. I have no intention of returning to the earlier debate, other than to say that the interaction of that term with the use in the clause of “may” rather than “shall” leads to a situation in which the intention of the clause is unclear. Mr. Andrew Caplan is the legal adviser to the scouts. In his briefing he says:
“The first point is what would be considered a desirable activity and by whom? Desirable activities would, if applied to the individual, presumably be automatic otherwise the individual would not be participating in the activity!”
He asks whether “desirable” means
“Desirable to the society at large?”
He then says
“The concern I have is that if broadly applied the provision could lose some or all credibility.”
“For my own purposes I cannot see that there is any way of avoiding a judicial debate about what constitutes a desirable activity. All that parliament can do is perhaps limit the debate to a particular field of operation. I think we should try and obtain an amendment to define desirable activity as ‘any activity with sporting, educational or adventure training activity which can be categorised as having a social benefit.’”
That would be a mixture of the amendments tabled by the hon. Member for North Southwark and Bermondsey and by my hon. Friends.
Roy Amlot, QC also makes some helpful remarks. He is important because when the Campaign for Adventure first came to Parliament to raise the issue two years ago, he provided the references to the shocking legal case of the mountaineering instructor who was convicted of negligence after a tragic incident in which the client was killed. It was shocking because there was no dispute of fact at all in the case—all the parties agreed on the facts. The negligence finding derived entirely from the judgment of another professional mountaineer who took a different view on what the defendant should have done when faced with a split-second decision in a rock slide. The whole mountaineering community was outraged by it. Roy Amlot’s comments about amendment No. 8 are that it:
“seems sensible to me: ‘desirable’ is too wide and would invite uncertainty and a plethora of judicial definitions and a great deal of legal argument. The proposed amendment narrows the field and confines it to appropriate areas which are more precise and easier to understand.”
It seems to me that something like
“legitimate sporting, recreational, educational or other socially beneficial areas” would be a more useful definition. In an earlier speech the hon. Member for North Southwark and Bermondsey cited the exact wording that the House of Lords gave, which was not exactly the same.
Like most Members here, I welcome the Bill. However, for some curious reason, the original message that was communicated with the Bill flagged up the helpful case of Tomlinson as having been the source of clause 1, whereas, in fact, the words “desirable activity” occur nowhere in the Tomlinson ruling.
Simon Hughesindicated assent.
The hon. Gentleman, unlike me, has read the whole thing from end to end and is nodding his head. Interestingly, the Western Australian measure contains much greater protection in a number of respects, particularly for sporting activities. The wider definition used there takes account of
“the social utility of the activity that creates the risk of harm.”
That is very close to the words “social benefit” proposed by the hon. Member for North Southwark and Bermondsey.
To complete the putting of words on the record, “social utility” appears from the Tomlinson case to be the phrase that the American courts have used. The sentence that fits most closely to what the hon. Gentleman is saying is:
“It is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled.”
That is the most precise general phrase—the “liberties and amenities” to which society is entitled.
I am grateful to the hon. Gentleman. It would be helpful—a number of hon. Members have suggested it—if the Government were to reconsider the phrase “desirable activity”. First, they should try to use slightly more familiar legal language. “Desirable activity” did not appear in the Tomlinson case and it does not appear in the common law of our cousin countries. We should use something like “social utility” or “social benefit”, as do the Americans and Australians. Secondly, the Government should consider specifically mentioning sport, adventure training, physical recreation and educational activities—all things, as we know, that the Government aim to protect.
I do not want to labour the point—we have heard two excellent speeches and there was much discussion of the subject on Second Reading—but I doubt whether anyone on the Opposition Benches, either Liberal Democrat or Conservative, is wedded to a particular wording. We are asking the Government to tighten the phrase or, as second best, the Minister to do as the hon. Member for North Southwark and Bermondsey suggested, which is to record in Hansard in more particular terms what is meant by “desirable activity”, so that it can be used as guidance for the courts. Otherwise, as with “may” rather than “shall”, we will not be sending a clear signal, and I know that that is not the Minister’s intention.
I turn to amendment No. 26, on landowners. Many activities require land to be available. I received a letter from a canoeing organisation, which pointed out that the provision of land does not of itself always provide access to waterways, lakes and so on, which is necessary for activities such as canoeing and sailing—hence the wider wording of paragraph (c), which would add the words:
“discourage persons or organisations from making land or water areas or courses available for recreational, educational or adventure training purposes”.
I am anxious that we protect those, principally farmers, who generously make their land available to such organisations. The Scouts and Guides cannot operate without somewhere to go camping. Even the Army Cadet Force and the sea and air cadets often have to rely on private land being made available by farmers because of the shortage of military training areas. Indeed, those who want to go hill-walking for the afternoon who do not have the benefit of living near a national park often rely on the availability of private land. Indeed, Randall Williams of the English Outdoor Council states:
“Bowles is a charity which is custodian of one of the South East’s major sandstone rock outcrops. On a busy weekend, it offers voluntarily to the public the use of the rocks for positive, affordable recreational rock climbing activity. It would be a tragedy if the hundreds of people who use this natural resource every weekend were denied this opportunity because the charity felt it could not take the risk. Reasonable protection of landowners is vital to prevent this negative reaction from taking place.”
Another area that is particularly under threat is farm visits. In the old days, a large number of schools, not only from rural areas, took their children on farm visits, so that the children could see how food was grown, mingle with livestock and so on. I was privileged a month ago to visit the open day of the Kent county agricultural society, which gave 14,000 children from state schools the opportunity to visit and to see and handle farm animals. It was a terrifically adventurous day. I am sorry to say that three schools could not afford the one item that they were asked to pay for—transport. I understand that they are now looking into fundraising to ensure that no school misses out on the opportunity next year.
The point was made to me strongly that every year fewer and fewer farmers are willing to allow farm trips to their farms because they are frightened of being sued if something goes wrong—for instance, if a child gets bitten by a farm animal or picks up a disease. Their insurers are leaning on them not to agree to it.
George Jessel, vice-chairman of the society, said:
“In the past farmers have been proud of what they do and have enjoyed showing their operations to others. They now hesitate when they are asked to provide educational opportunities, whether for school trips, for visiting agricultural and veterinary students or farmers from developing countries. Today, such visits result in increased insurance costs”— and let us remember that farming is really struggling in many parts of the country—
“because of the threat of being sued”.
There is another area involving landowners: fun runs. That is not obvious, but I was asked to mention it. Superficially, one might think that a farmer should not be liable for a fun run on a public footpath because people can always walk or run down it and well established case law protects the farmer. Unfortunately, however, if a farmer allows a fun run on a footpath, involving, for example, marking stakes in the ground showing a particular direction, marshals on duty at particular points to ensure that people do not go the wrong way and water stations, the farmer is in the legal position of having invited the organisers on to the ground and thus opens himself up to being sued in a way that would not normally matter on a public footpath.
In summary, I ask the Minister to consider that the amendment would do no harm to the Bill and provide real comfort to farmers, fewer and fewer of whom are willing to make their land available each year. It is vital that farmers, and indeed the trusts that own large areas of land, continue to make their land available. Fewer of them are willing to do so under pressure from their insurance companies. I urge the Minister to consider the amendment. I am not wedded to the wording. If she does not like it, I urge her to provide her own.
If the Committee will indulge me, I shall take some time in responding to hon. Members’ comments, which go to the nub of the clause. In a sense, the fact that so many different alternatives have been proposed only serves to indicate the difficulty in getting a commonly agreed wording. We and parliamentary counsel think that “desirable activity” best reflects the current law and what we are trying to achieve.
As I respond to the amendments, I shall take on board what the hon. Member for North Southwark and Bermondsey said about trying to put on the record exactly what I mean and understand by “desirable activity”. I hope also to reassure hon. Members not just about that, but about other comments, particularly those made by the hon. Member for Canterbury about landowners and so on.
The amendments relate to alternative phrases to “desirable activity”. I shall begin by addressing some of the points raised on Second Reading about that phrase. We have given considerable thought to what best captures the courts’ approach to such issues and the concept of the wider social value of activities, which is well established in current law.
As I said, I think that “desirable activity” most accurately reflects that. I do not believe that that term will lead to a large amount of satellite litigation over what constitutes “desirable activity”. Obviously, there will be some early judicial discussion of the new provision. That is always the case in any legislation. However, it is important to recognise that various factors will reduce substantially the possibility of increased litigation. For example, the clause will not create new claims. It simply identifies a factor that the courts can already take into account as part of a process that they already undertake in cases of negligence and breach of statutory duty. A defendant might, in some cases, be emboldened to resist a claim that may not be well founded, but which might be settled because of the trouble and expense of defending it. I do not see that as unjust.
Defendants might also argue more strongly that the additional precautions it is suggested that they should have taken are, in fact, excessive and disproportionate. However, that is a far cry from the rather far-fetched idea that defendants will invest vast sums in seeking to prove—and claimants in seeking to disprove—that an activity is desirable in the belief that the cases will turn solely on that factor. A “tsunami” of additional litigation was predicted on Second Reading. I suggest that a modest and temporary trickle is a more realistic description of what might happen.
The clause is permissive. It is not mandatory. It does not require the court to consider the desirability of an activity in every case. The court can decide whether it is relevant in any particular case, as it does now. The court is not required to give that factor any greater weight than the many other factors that might be relevant in an individual case, so while a defendant might argue that the activity to which the claim relates is desirable, the decision that the court will reach on the claim does not depend on its view on that point.
The defendant cannot get around having to demonstrate that he took reasonable care simply by showing that the activity was desirable. The courts will, I am sure, give short shrift to any defendant who tries to argue that, because he is engaged in a desirable activity, he is allowed to be careless. That considerably diminishes the likelihood of appeals based on whether an activity is desirable or not. The Government believe that the clause, far from generating large volumes of ill-founded and misconceived argument about the concept of desirable activities, will, in fact, help to reduce the number of ill-conceived, speculative or frivolous claims and influence the basis on which settlements are reached. It will discourage the bringing of claims based on the proposition that reasonable care involves all steps required to prevent accidents from occurring in any conceivable circumstances, regardless of the effect of requiring those steps.
Amendment No. 27 would replace the provision in clause 1 that enables the court to have regard to whether a requirement to take particular steps might prevent or impede a desirable activity from being undertaken or discourage people from undertaking functions in connection with it. Instead, the court would be able to take into account the social benefit of the activity and the effect that liability for negligence or breach of statutory duty would have in deterring identical or similar activities from taking place. I do not believe that that would be appropriate. There is a risk that, as drafted, the amendment could be interpreted as implying that a claim that would otherwise succeed could fail purely because of the potential effect on a socially beneficial activity of liability, rather than because of the effect of a requirement to take particular steps to avoid the risk of injury in relation to that activity. I realise that that seems like a fine distinction, but it is a real one. To ignore it might risk changing the law and we do not intend to do that.
This debate is obviously one that we shall take part in and reflect on. The Committee might be helped if it knew why the Government chose the phrase “desirable activity”. From where did it come? What is the authority for it?
I accept that “social benefit” is a creation, but the other phrases are not. “Social utility” has been used commonly in other courts and “social value” was the Tomlinson phrase and would have seemed an obvious candidate. I hope that, before she concludes, the Minister will tell us where she got her phrase, what authority it has and why “social value”, if not “social benefit”, was rejected given that it has been used in recent court cases on the issue.
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.
This is not a trick question; I am trying to discover whether the Minister and her officials have thought about the matter. Could there be a desirable activity that was not legal?
As it happens, I was just coming to the issue of legitimate activity. I am sure that in some people’s minds there are a lot of desirable activities that are not legal, but I do not want to go down that particular road. I shall leave it to hon. Members to reflect on that for a moment.
Amendments Nos. 28 and 29 would replace “desirable” with “legitimate”. I am not persuaded by concerns that the use of “desirable activity” will lead to satellite litigation. Although there might be some initial argument over what is meant by the term “desirable” in this context, it is in itself a simple term with a clear meaning. By contrast—the hon. Member for North Southwark and Bermondsey raised this point as part of a directly opposing view—the word “legitimate” can have a number of different meanings. For example, it could simply mean something not expressly forbidden by law; a lawful activity as contrasted with an unlawful one. It could mean something that it is proper for a person to do or reasonable for him to expect to be allowed to do, in the sense of a legitimate expectation. Or, it could simply mean something which is worth while. Without further definition of exactly which nuances the term is intended to capture, the uncertainty that would arise over its intended meaning would be greater than may arise in relation to “desirable”. So, it does not necessarily provide an improvement on the existing drafting.
Returning to the point made by the Scouts’ lawyer, which I quoted, the problem with the word “desirable” is that it can mean either “collectively desirable” or “desirable on the part of the individual”. The advantage of terms like “socially useful” or “socially beneficial” is that they make clear where society has a wider interest. Can the Minister put on the record that she means “desirable” in the latter sense and not the former?
I certainly can reassure the hon. Gentleman that we mean desirable in that latter sense. Reflecting on the hon. Member for North Southwark and Bermondsey’s question about when something is desirable that is not legal, it is probably perverse to suggest that any unlawful activity could be desirable, and that would probably be reflected in case law. I am directed to yet another of the famous cases about which all law students have to suffer learning—apart from Donoghue and Stevenson, which is quite interesting. The Wagon Mound No. 2 case refers in detail to that, so, replying to the hon. Member for Canterbury, it is indeed about what is socially acceptable.
Amendment No. 5, by removing the words—
I apologise that I was out of the Room for a bit, but can the Minister amplify somewhat the “economically desirable” which she was indicating earlier would be in this clause? That is quite worrying, as I had thought that the purpose of “desirable activity” was to cover things like recreational trips—the sort of things set out in amendment. No. 8, in my name. If the Minister says that it covers economic activity, what does it not cover within the sphere of legal activity?
I am grateful to the hon. Gentleman, in a sense, for giving me the opportunity to elaborate. I used the Latimer case because I want to re-emphasise that we are not changing the law here, but making clear what the law is. In the Latimer case, which was a negligence claim against the employer by an employee who slipped on a floor in an out-of-the-way area after a kind of flash flood or freak event, it was held that it was not short of reasonable care to continue working in the factory after the flood had been cleared up, even though some areas were still slippery, as to close down until the place was completely dry would have lost a shift of production and have been out of proportion to the impact of that particular event. I am directing the hon. Gentleman to that sense of desirable activity.
It is sensible to deal with all these issues now in our debate, and then we will not have to come back to them. I was thinking of the possibility of the Minister adding the economics option. Thinking quickly, it seems to me that there is a definition that might fit with what we all understand. In the world of human rights, there are two sorts; civil and political rights and cultural, economic and social rights. Will the Minister consider whether there might be other formulations that can work better? I have listened to the arguments that she has made well, but if we can find an agreement on the best formulation, would she be willing to consider it before Report?
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.
The Minister is courteous in giving way. It is helpful that she has put on record the fact that the clause covers the matter, although it is also important to note that her remarks about the current state of law do not seem to work with insurers, whose attitude is that if there is a risky activity they should put premiums up. In large numbers of cases farmers have simply withdrawn from school farm visits and from making land available for camping and so on. There is a real problem, but I thank her for her assurance that the clause will cover farmers and others who make their land available.
I am grateful to the hon. Gentleman, and I hope that in stand part debate we will all reiterate the principles behind the clause. It is about reassuring volunteers that they will not be sued frivolously and landowners that they will have the same protection that the currently have. That will also send a message to insurers that they should not be over-cautious in dealing with some of their clients.
The issue of public benefit is rather technical, and the difficulty is that in parliamentary counsel’s view the concept is a narrower one than desirability and would therefore not reflect the full range of flexibility availability currently available to the courts, as demonstrated by the case law—
Before we broke, I was talking about why we do not use the phrase “public benefit”. It is a technical point: parliamentary counsel felt that that was a concept narrower than desirability and that it would not reflect the full range of flexibility available to the courts at present. It might be argued, for example, that it would not encompass cases in which certain precautions would have an impact on a business entirely disproportionate to the risk to which they were directed. That was the point that I made about the Latimer case.
In statute, “public benefit” is defined in respect of the definition of a charity. That implies that a wider public, rather than a narrower group, might benefit, so it would not have the same range that appears in case law, which “desirable” is intended to reflect.
Having said that, I take on board what the hon. Member for North Southwark and Bermondsey said about that issue and about Pepper v. Hart, and I hope that the courts will reflect on our discussions if there is any doubt about the meaning of the Bill. In asking Opposition Members not to press the amendments, let me say that I shall reflect on the points that they have raised and the phrases that they have used instead of “desirable activity” so that we can be absolutely confident, come Report, that we are at one as to what we mean by them. I shall make sure that everyone on the Committee is given a full explanation of what we understand by each of them to see whether we can reach consensus by Report. In the meantime, however, I ask hon. Members not to press their amendments.
I thank the Minister for her thoughtful and wide-ranging reply, which picked up all the points that we raised. I do not propose to divide the Committee and shall seek leave to withdraw the amendment in a moment. I saw it as an opportunity to do what we needed to do, which was to look at the drafting, phraseology and terminology.
In only one of the Minister’s statements did those advising her stretch the bounds of credibility beyond breaking point; she appeared to be using notes, rather than speaking extempore, so I do not blame her, although she is, of course, accountable. She said that the definition of “lawful” or “legitimate” was that something was “worth while”, but if we suddenly reinterpreted those terms in that way, we would have a whole new understanding of what was legitimate. I can see somebody appearing at Tower Bridge magistrates court, saying, “But your honour, it was worth while.” The judge would say, “Oh yes? Well, it might have been worth while to you, mate.” The defendant would reply, “But the law says that if something is worth while, it must be legitimate.” I think that that interpretation pushes the bounds of possibility.
On the more serious issues, the Minister helpfully indicated her willingness to look at alternatives. Having heard the debate and thought about it, I accept what she said about public benefit, which is clearly a narrower concept. Although it applies in statute law, particularly to charities, it is probably inappropriate.
However, there is merit in holding on to alternatives to social benefit. They include social utility, which has been established in the courts, although mainly not in this country, and social value, which has been clearly established in this country’s courts, particularly in Tomlinson. I heard what the Minister said about the provisions being meant to apply to the tests that the court will use to decide not the final question of liability in statute or common law, but whether, in the words of the Bill,
“the defendant should have taken particular steps to meet a standard of care”.
I realise that there are different tests at different parts of the process to evaluate such things, but I hope that the matter can be looked at.
I shall look at the Latimer case and the Wagon Mound No. 2 case. While Members were voting just now, colleagues and I discussed with people in the public gallery what had happened to the Wagon Mound No. 1 case, but nobody knows. All I know is that it never became as famous. I assume that it must have involved the same ship or the same defendant, but it clearly did not raise the same important points of law.
I would be grateful if the Minister took advice about looking at the personal, economic and social benefit. There was a good exchange between her and the hon. Member for Canterbury, in which she gave what I understood to be a clear answer. She said that we were talking about something that was not only personally but generally desirable, so that meant a wider, rather than a narrower definition. However, we might still be able to return to something that uses established phrases.
To pick up a point made by the hon. Member for Blaydon, I am keen that we do not end up accidentally, or purposely, doing something that leads to lots of work in lots of court cases. The Tomlinson case took nine years to get to law. The asbestos case has been going on for many years and is still not resolved. If we are not careful, the lawyers get going. It takes years to get civil negligence cases to the highest court and sorted. We must avoid that. This is about real people, real lives, real experiences and a need for finality. Often, in court cases, individuals want not necessarily a ruling that will be quoted in law but simply an end to their case so that they know where they stand.
I am grateful for the Minister’s response. I beg to ask leave to withdraw the amendment.