I beg to move Amendment 3, in Clause 2, page 1, line 6, leave out “must” and insert “may”.

With this it will be convenient to discuss the following:

Amendment 5, in Clause 3, page 1, line 10, leave out “must” and insert “may”

Amendment 9, in clause 4, page 2, line 15, leave out “must” and insert “may”

We can move seamlessly from the last debate to this one. These are the amendments on discretion, and their purpose is to make it clear in each of the Bill’s three operative clauses that these are matters entirely of judicial discretion, whatever factors the Government wish to shoehorn in to be considered.

It looks somewhat rude, if not oppressive, and it is certainly uncharacteristic of the Government, to draft clauses such as clauses 2, 3 and 4. Surely, the whole purpose should be to suggest to the court—as well as to the public, as the Government say—that the matters set out in those clauses ought to be considered. I believe that courts already take such matters into consideration under the Compensation Act; section 1 of that Act is very similar to Clause 2 of the Bill, and it uses the word “may”. Two slightly different sections of Acts will be lining up for consideration, and that will add a little bit more to the confusion.

What is also wrong with the drafting is that the courts will have to do what the Bill says: it is mandatory; they must consider it and therefore they will, but it will almost fall into contempt, because I think the courts will regard it as an affront to their exercise of discretion. They will go through the motions, so rather than being of genuine assistance, as with a true piece of discretionary advice, it will be a tick-box exercise. On each occasion, judges will read a standard sentence at that point, saying, “I now turn to consider the provisions of the Social Action, Responsibility and Heroism Act. I have considered those and they makes no difference at all to my judgment in this matter, which I have carefully considered, having heard all the evidence and sat as a judge for a number of years, thank you very much, Lord Chancellor.” I do not think, whatever the Minister thinks, that this will help him in his intention; it certainly will not assist the courts.

If we read on, we see that clause 2 states:

“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.”

That just sounds wrong to me. The conjunction of “must” and “have regard to” is trying to have your cake and eat it. It is either discretionary or it is not. I think that the Minister will say, “Of course the final discretion remains with the court. That’s why it’s ‘have regard to’.” That is why the FOIL and others objected to “have regard to”. They want the law to be fundamentally changed in some respects, and I accept that the Minister  does not, at least in relation to clauses 2 and 4. However, I still think that it is another bit of poor drafting and confusion—the Government are trying to have their cake and eat it. They are saying, “Yes, we want to doff our cap to judicial discretion, but we also want to give the courts a bit of an arm twist.” I do not think that sits very easily, and I do not think that the clause drafted. The Minister would be well advised to accept our amendments and, in clauses 2, 3 and 4, to change “must” to “may”.

Amendments 3, 5 and 9 would remove the requirement for the courts to consider the factors set out in the Bill in any case in which they were determining whether someone was negligent or in breach of a relevant statutory duty. Instead, it would be purely a matter of discretion whether they took account of the factors in the Bill. The aim behind the Bill is to send a clear message to the courts and the public that the courts will consider the context of the defendant’s actions in every case that comes to court. Removing that requirement would dilute that message and simply serve to confuse the public about the Bill’s intentions.

Section 1 of the Compensation Act 2006 includes a provision stating that the courts, when considering whether someone is negligent, “may” have regard to whether a finding of negligence could prevent a desirable activity from being undertaken or discourage people from undertaking functions in connection with such an activity. That Act clearly did not do enough to deal with people’s worries about liability, as the recent surveys carried out by the National Council for Voluntary Organisations and St John Ambulance have shown.

We hope that the Bill will do more than the Compensation Act did to allay people’s concerns about liability and to increase participation in socially useful activities, but the amendments would negate its impact. I am sorry that the Opposition treat the matter somewhat lightly and are dismissive in their approach to it. However, it is pretty straightforward that the Bill is designed to direct the court on what it ought to take into account, but ultimately it is for the court, on the basis of the facts before it, to come to its own conclusions as to how it decides. I hope that the hon. Member for Hammersmith will agree to withdraw the Amendment.

I shall not press the Amendment to a vote, but I think that the Minister has just underlined the “facing both ways” point. Is the use of the word “must” actually about sending a message to volunteers? Is it about the issue of comfort again; is it about saying, “Don’t worry. We will make sure that if you’re in a situation in which you’re likely to be sued for negligence arising out of your good will or the other cases that the Bill covers, a very strong message goes to the court”? I think that that is probably what the Government want to do, but it is a very inefficient way of doing it. One thing that all the witnesses agreed on was that not many people are going to sit down and read this Bill before they decide whether to volunteer. There are many other ways in which that can be dealt with. This is not a good way to legislate, but I have made the point and I shall not press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 4, in Clause 2, page 1, line 8, leave out

“or any of its members”.

This is the first of the “what does that mean?” amendments. If one looks at clause 2—I will read it out; the advantage of this Bill is that we can read clauses out, as many times as the Committee wants, so as to take up more time—it says:

“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.”

Now, the Conservatives used to have trouble with “society”, but that was because they did not believe that it existed, so I doubt they would have had trouble defining it. They have resiled from that position to some extent, so I think we are all happy with what “society” means, and probably with what “the benefit of society” means as well, although that is still a very vague phrase in this context. In the amendment I am concentrating on the additional phrase,

“or any of its members.”

I am sure that the Minister will correct me if I am wrong, but I think that, in similar fashion to what the Compensation Act says, the phrase “the benefit of society” is a general reference to good deeds, effectively: things that objectively the man on the Clapham omnibus would regard as being a good thing to do. We got into trouble last Thursday on whether providing a golf course was to the benefit of society. I am not sure that it is completely, although I have nothing against golf. The Compensation Act states:

“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might…prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or…discourage persons from undertaking functions in connection with a desirable activity.”

That may be a little more legalistic, but it is a better and clearer definition. However, it has the same problem of definition as the definition in the Bill. I do not make that point so much about the phrase itself, “the benefit of society”; the difficulty, as I put to Mr Johnson in our evidence session, is that if we say that running a golf course is a benefit to society, almost anything will be. The definition is so broad and so vague that we are not narrowing anything down at all.

Let us give the clause the benefit of the doubt on that, and say that the intention is to say, to people who—increasingly, as we heard—volunteer and give up their time to do good deeds, that that will be taken into consideration. The Minister might say that it already is but that we should reassure people that it is being taken into consideration.

I do not know what the phrase

“or any of its members” adds to that. I have a genuine question as to what it means. Is it regarding specific instances? Is it trying to specify particular activities that individuals may do that benefit another individual? If so, I do not see what it adds to the phrase “the benefit of society”. It confuses me and does not add anything. I will not say any more because I cannot until the Minister clarifies what it means.

The phrase “the benefit of society” is intended to ensure that the clauses are broadly drafted and will apply in a wide range of situations in which people are acting for the benefit of others. The provision on social action could cover anyone who acts for the benefit of others on a voluntary basis or in a paid capacity. It could include organised charitable activities, such as running a village fête, or informal ones, such as helping an elderly neighbour with their shopping. It will also cover, for example, teachers, doctors and emergency service workers who act for the benefit of society as part of their jobs. It will be for the court to determine whether the provision is relevant in all the circumstances of an individual case.

We do not consider the Amendment to be appropriate. Any fears that the Clause may somehow extend to purely selfish actions that benefit the defendant are completely unjustified. The wording of the clause leaves no room for doubt. It is clearly concerned with activity that is

“for the benefit of society”.

As the Minister will be aware, the Government have resumed the badger cull without any proper oversight. If one of the shooters were to injure a protester, would they be protected by the Bill? Are they acting for the benefit of society? It is a moot point. The vast Majority of the British public would argue that those people are not acting in the interests of society at all.

I will not go down the route that the hon. Gentleman seeks to take me down. I made it absolutely clear what the “benefit of society” means. The issue he raises has been hotly contested and other legal issues come into it, but I will not be drawn in that direction.

The title of the Clause—“social action”—makes its purpose abundantly clear, and purely self-interested or self-centred actions will not fall within its scope.

I accept that the Minister does not want to go down the route of the badger cull. He explained that the Clause only relates to fêtes; is that the extent of it?

The hon. Gentleman really must try to listen. I did not say that the Clause only related to those things; I gave them as examples.

Opposition Members and, indeed, the whole Committee wish to encourage volunteering; we are at one in that regard. However, from the evidence I heard, there seems to be a risk of unintended consequences. Will the Minister clarify that there is not a conflict between the protection of health and safety and the aims of the Bill?

I do not see any contradiction. Kevin Myers, acting chief executive of the Health and Safety Executive, said in his evidence that the HSE had some 311 examples on its website of health and safety myths. I have looked at one or two of them, and I must say that they are quite extraordinary. If the Bill can help to destroy some of those myths, I am all in favour of that. The Bill ensures that a powerful message is sent to the  public that, if they do the right thing in the right circumstances, the law will consider that rather than simply tell them they should not have done it.

This comment is an attempt to be helpful. In my local council, some sort of new broom is effectively driving a lot of community activity out of existence through an overbearing approach to risk assessments and health and safety assessments. Does the Minister believe that the Bill might help those organisations that are busy cancelling fêtes? The latest one is a Christmas street event which will now not happen because those organising it cannot deal with the council. How will councils react to the legislation? Will it make them soften their approach to community organisations?

Each case will of course be looked at in context, but when people act for the benefit of society in a civic-minded way, I hope that—if the matter goes to court—the courts will be directed to consider that factor, which they are not allowed to do at present, and that they will take the view that people are acting in the right way.

I am mindful of a quote from the former Home Secretary and Foreign Secretary, the right hon. Member for Blackburn (Mr Straw). In July, he said:

“There is a strong lobby of lawyers claiming to act for the poor and vulnerable but in reality such firms are precipitating costs that lead to higher insurance premiums across the economy. There is a need to change behaviour in society—serious change in attitudes with regards to insurance fraud.”

That may cover some of the issues.

The wording that the Amendment seeks to remove is designed to ensure that the Clause applies to acts of altruism towards individuals, such as driving elderly neighbours to hospital appointments, as well as more organised activities carried out by, for example, voluntary organisations, which may have benefit to society in a more general sense. Encouraging such acts can help to foster an environment of civic-mindedness and a culture of volunteering and positive behaviour. I hope that the hon. Member for Hammersmith will consider withdrawing the amendment.

I shall not press the Amendment to a vote. It is quite revealing that, although I did not say anything about selfish motives—I had thought about them, but did not say anything—the Minister rushed to deny that that was the case.

Given the Shadow Minister’s reliance on everything that Fraser Whitehead from the Law Society said, it was something that he had said. I am sure the hon. Gentleman will have thought it, even though he did not say it.

I did wonder what

“or any of its members” meant, but I have a slightly more interesting point to make about the interests of others, so I will save it till we come to that.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.