I beg to move Amendment 6, in Clause 3, page 1, line 12, leave out “generally”.

With this it will be convenient to discuss the following:

Amendment 7, in Clause 3, page 1, line 13, leave out “or other interests of others” and insert “of employees or bystanders”.

Amendment 8, in clause 3, page 1, line 13, at end insert

“in relation to the circumstances leading up to the alleged negligence”.

This is perhaps the most troubling part of the Bill for us. In relation to Amendment 6, we return to the point about vagueness. We suggest leaving out “generally” because we do not think it adds anything to a “responsible approach”. I have a fear that, taken with the other parts of the Bill that we have taken exception to, the general thrust is to dilute the responsibility that the tortfeasor may have, on the basis of what are frankly extraneous factors. In amendment 7, we suggest leaving out

“or other interests of others”.

That is clumsy phrasing, but what does it mean? What does

“protecting the safety or other interests of others” mean? Does it mean shareholders’ profits? Does it mean consideration that has nothing to do with personal safety at all? It could certainly be taken to mean that. It is one of two genuinely damaging phrases in the Bill. The other is in Clause 4. Even if the Minister will not agree to amendment 7 now—I live in hope—he might go away to look at it. I will also ask him to go away and look at amendment 10 before the Bill has its Third Reading or is considered in the other place. That is where he needs to go if the Bill is to be fit for anything at all.

Amendment 7 would add: “of employees or bystanders”. Amendment 8 would add:

“in relation to the circumstances leading up to the alleged negligence”.

One talks about proximity of place and one talks about proximity of time. Both amendments, and amendment 6 which would leave out “generally”, aim to bring the debate back to the incident complained about and which is at the centre of any potential claim. That seems right.

I would value hearing in some detail what the Minister means by introducing the responsible approach. Does it mean that an employer who generally has a good safety record, who puts the right notices up, who sends most of the staff on training, who subscribes to the right organisations and has most of the right safety gear on the premises, for example, is less liable if one member of staff does not get that training or does not get the safety gear, or is instructed to put themselves in a dangerous position? That seems grossly unfair.

Can the surgeon who has an excellent record of cutting off the right limb but cuts off the wrong limb argue, “I normally get it right. I almost always get it right but on this occasion I got it wrong and I should be  given the benefit of the doubt because I generally have a responsible attitude towards my safety record”? [Interruption.] My hon. Friend the Member for Kingston upon Hull East finds this amusing. I do not know why because what else are we to take this to mean?

We have used examples from outside the workplace. The surgeon example is not an employer-employee relationship but there is clearly a duty of care. In fact, it is a higher duty of care. An employer has a duty to an employee or another member of the public, but the duty that the surgeon has in operating is even higher. Will we throw the Bolam test out of the window as a consequence of the Bill? I do not know where to go with this clause without some assistance from the Minister. It has that quality of vagueness but, and this is far more damaging, it could exonerate the tortfeasor of the offence based not on irrelevant matters but on matters that are not central to the facts under consideration.

I turn now to amendment 8. Again, we should be talking about matters that are proximate in time and place to the activity that has happened. That is the common-sense approach, to use a phrase that the Minister uses a lot, to take in these cases. We heard quite a lot in evidence and in briefings both about the ambiguity of a generally responsible approach and the other phrases that we have dealt with. However, without going over the cases that were mentioned in this context, I would like to consider what happens if people are injured, at work or not, and they bring a claim and need compensation to carry on with their ordinary life or get them over their recovery period, or because they have a debilitating injury, and they are told in any circumstances, “Sorry, you cannot receive that compensation even though previously your employer would have been found liable, because, generally speaking, they have a good safety record.” Does it work the other way as well? That was one of the points that was put to us.

Perhaps the employee has been off on a frolic of their own. One reason why the clause is otiose—because of course the Lord Chancellor continually says that we want to protect the diligent employer from the reckless employee—is that a reckless employee does not get compensation anyway, in the same way that Tomlinson did not. The courts will look at their behaviour and if they acted unreasonably they will not succeed. In that case, if the claimant was somewhat reckless, would an employer with a very bad safety record, who generally speaking did not do the right thing, be more likely to be found liable as a consequence of clause 3?

The court would be looking at the question of a “generally responsible” approach. It might say that on the occasion in question it could have found a huge amount of contributory negligence or no liability at all, but that the employer was a pretty bad one, who did not mind tomfoolery in the workplace or take a serious attitude to safety; it might therefore take a different attitude.

The clause is a can of worms. It opens up a lot of possibilities. It will lead to more complex litigation. The process will become more bureaucratic, which is exactly what the Government say they do not want. The phrase “generally responsible approach” will come back to haunt the Government. Lawyers will go on fishing expeditions—it is what lawyers do—looking at the entire background of a case and bringing in extraneous matters. Whereas a judge might previously have felt able to say,  “I am sorry, but you will limit this to the facts under consideration,” the lawyers will point to the clause—or section as it will be then—and say, “No, I am only trying to demonstrate a lack of a generally responsible approach towards protecting the safety of the employee.”

Without amendments about what circumstances and “other interests” are relevant, and without any consideration of whether it is the immediate lead-up to the accident and the most relevant facts that are to be taken into account, as opposed to the entire conduct of the parties over an indefinite period, the clause will add layers of complexity to the trial process. The Government have said that they want the exact opposite of that to happen.

I recognise that Clause 3 has generated the greatest debate among stakeholders, including those who attended the evidence-taking session last week. It was said that negligent employers who cause injury to employees could try to hide behind clause 3 by claiming that they are responsible most of the time, that the incident was a one-off, or that they had not injured anyone else in the course of the previous year or so, and that the court should give them credit for that.

Amendment 6 asks the court to consider whether the defendant was “responsible” rather than “generally responsible” during the course of an activity. Amendment 8 asks the courts to focus on the defendant’s approach to safety leading up to the alleged act of negligence as opposed to, for example, their track record on health and safety matters over a long period of time. I understand what has motivated those amendments, but I will explain why they are unnecessary.

Clause 3 already states that the courts should look at whether the defendant adopted a generally responsible approach towards the safety of others in the course of the activity in which the alleged negligence occurred. I emphasise the words “in the course of an activity” because they send a clear signal that the Bill is concerned with the approach the defendant adopted in the course of events that led to the injury. Employers may well have a good health and safety record over a number of years, but if on the day, during the activity in question, their actions are risky or careless and cause injury, there is nothing in clause 3 that says they cannot be found negligent.

Can the Minister say what the effect of that provision will be? He said earlier that it changed the law, unlike the rest of the Bill. Can he clearly say how, rather than just being a bit of further advice, the Clause changes the law to get the court to make, in some cases, a different decision from the one it would otherwise have made?

We consider that Clause 3 represents a change in that it ensures that the court takes into account a defendant’s general approach towards protecting the safety and interests of others when carrying out an activity. It is the general issue that is relevant there.

The clause states that if a person carries out an activity in a generally responsible way and, despite their best efforts, something goes wrong and somebody is injured, the court should take full account of the  circumstances. That will help to deter people from bringing speculative and opportunistic claims and will give confidence to responsible employers and others that if they resist such claims, the law will be on their side. The Cheshire Fire And Rescue Service has provided a helpful example in its written evidence to the Committee. It describes what seems like a ludicrous situation, where it has been sued by passers-by who have tripped over the hoses as they were being unwound to extinguish a fire. Those incidents have occurred despite the fact that the engines are clearly marked. Firefighters arrive at the scene to put out a fire and their priority is to reach anybody who may be inside the burning building. It is right that the clause requires the court to take account of their general approach towards safety during the course of the activity in question.

Turning to the final Amendment in the group, amendment 7 seeks to limit the clause to people who have been taking a generally responsible approach towards the safety of employees or bystanders. We deliberate drafted the clause broadly so that it would be relevant to a wide range of situations. We see no justification for narrowing the clause so that employers who demonstrate a generally responsible approach towards protecting the safety of employees benefit from the provisions, but voluntary organisations, religious groups or social clubs, for example, who demonstrate the same generally responsible approach, do not. The provisions do not direct the courts to the conclusion they should reach and will not prevent a finding of negligence or breach of statutory duty where that is warranted. I am confident that the courts will continue to take a common-sense approach to those cases and will exercise the flexibility that the clause gives them to reach a just decision in all the circumstances of the individual case. I hope that on that basis hon. Members will be persuaded to withdraw their amendments.

It is a great pleasure to serve under your chairmanship this morning, Mr Sanders, and I think it is for the first time. I want to make a few brief comments in support of the amendments tabled by my hon. Friend the Member for Hammersmith. They are eminently sensible and I fear that the proposition outlined in the Clause could potentially take us considerably backwards in the protections that we have managed to build up for employees over the years. Has the Minister, or anybody sitting on the Government Benches, ever been employed in a potentially hazardous occupation? If they had been, I am sure that they would support the Amendment tabled by my hon. Friend, which would make the obligations more explicit by covering employees and bystanders. I am concerned about the wording of the clause, which states:

“The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.”

I will give an example of something that happened to me when I was employed as an apprentice bricklayer on a building site. Generally, the employer was good and demonstrated a responsible approach to protecting the safety and interests of others: he provided transport for us to get to the site on time and a cabin was provided for shelter when it rained and to have a cup of tea and a sandwich. He also went to the length of providing safety rails on most of the scaffolding; they just were  not on all of it and it so happens that I was unfortunate enough to step backwards where there was no safety rail and fall 15 feet on to a concrete staircase.

Luckily, I lived to tell the tale, but I could have been seriously injured, paralysed or killed. However, as a result of the way in which the clause is drafted, if I had been severely injured and paralysed would the employer have been able to escape responsibility? As I said, generally he was quite a decent employer—he provided transport, a cabin and there were lots of safety rails on the scaffolding—and, as far as I am aware, there were no other examples of employees sustaining industrial accidents on that site. My hon. Friend’s amendment would give protection in such circumstances, so I hope that the Minister can find it in himself to concede on that point.

I will not press any of the amendments, because the Clause is so appalling that I would do better to make a few comments in the clause stand part debate and then vote against at that point. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Question proposed,That the clause stand part of the Bill.

As I said, a clearer concern is that the Bill may go further than being simply irrelevant or nugatory and do some damage. It may restrict meritorious claims and in many cases it may continue the tilt away from the employee towards the employer. The balance is usually with the employer, because, when there are accidents at work, they have control of the site. The employee is often concerned—owing in particular to the weakening of employee rights under this Government—about making a complaint or claim against their employer and now there will be another series of hurdles through which they will have to jump.

I hope that the Clause will receive some attention in the other place, where there are some extremely distinguished members of the legal profession and experts in employment law, personal injury law and other matters. Perhaps I should have declared that I was a personal injury practitioner, but I have not practised since I was elected in 2005 and, when I did, I worked almost entirely for defendant insurers. I am not sure I could go back to that, but we will see. I have certainly not taken instructions from any of the Committee witnesses, although my hon. Friend the Member for Kingston upon Hull East tells me that I should probably mention that my Constituency party received a donation from Thompsons a year or two ago to the tune of £1,000, not the £5 million or £6 million that the Conservative party received from the insurance industry. None the less—[Interruption.] The Minister may intervene if he wants to, but for the avoidance of doubt I put the matter on the record.

The problems with the clause go beyond simply whether it confuses or complicates the matter. There is a change in the law. I am not sure I have understood from the Minister—if he wants to have one more go, he can—what the change in the law is in relation to the clause, but I think the intention is sufficiently clear. It is to dilute  responsibility when an alleged tortfeasor—they may or may not be an employer—is liable to be held responsible. Not only a lot of time and a lot more money, which again means that the case will cost a lot more for the claimant, but lots of extraneous and often irrelevant information will be brought into the case. The consequence may be—although one hopes not because one trusts the good judgment and wisdom of the courts—that either the decision will go against a claimant who otherwise has a meritorious claim, or the claim will not be brought in the first place because the advice will be that they will have to look into it in a lot more detail than in a previous simple personal injury or employer’s liability claim.

On the assurances that the Minister is seeking to give on the legislation, some witnesses expressed concern particularly about potential conflict with the general duties of employers to employees. The Minister said that brevity is one of the Bill’s selling points, but surely it would be helpful to the courts if the Committee and the Minister said that it should not take precedence over, for example, section 2 of the Health and Safety at Work, etc Act 1974, but would protect the rights of employees. For the life of me, I cannot understand why we cannot make that clear or give such an assurance.

I am grateful to my hon. Friend for making that point. He takes a great interest in these matters. I will leave it to the Minister to answer the point, but it is a concern. I have mentioned section 69 of the Enterprise and Regulatory Reform Act 2013 and that certain principles of employment law and health and safety law that have been taken as read, not just since 1974, but sometimes going back a century or more, are now being attacked. Employment claims generally are being suppressed. We know that they are down by 80% in a year because of the introduction of fees, and we welcome what the Shadow Business Secretary had to say about that at the TUC yesterday.

The Government should go away and look at the matter again. I do not expect to win, but I will press it to a vote. They must get their story straight. Are they changing the law, or are they not changing the law? Are they upholding and supporting good practice, or are they again changing the balance in employment law? They can do both in the Bill, but if they do, they must be clear about it. This is the part of the Bill that causes us most concern, so we will vote against Clause 3.

Clause 3 provides that, in deciding whether or not a person was negligent in carrying out an activity, a court must have regard to whether the person accused of negligence demonstrated a generally responsible approach towards protecting the safety of others.

I was very sorry to learn of the circumstances of the accident referred to by the hon. Member for Derby North. It is good to see that it has had no long-lasting effects. I say to him and to the hon. Member for Easington, who raised another query about clarity, that clearly the courts would have the final say on all matters, depending on the circumstances. The Bill is not intended to pre-judge a decision without knowing the facts. Each case will be different, as will all the facts; it is for judges to decide. The Bill does not seek to take over the right of judges to make decisions as they see fit.

I am grateful to the Minister for that clarification. Nevertheless, with all due respect in recognition of the fact that the Minister is a lawyer, is there not an obligation on members of the Committee to give, where possible, clarification that the Bill should not supersede existing health and safety requirements, for example? I know that the Minister will not be drawn on individual cases, but he might recall the example given by Matt Wrack, the general secretary of the Fire Brigades Union. He told us about the sad case of the two firefighters attending an organised firework display. Are we not beholden to clarify that the provisions in the Bill should not supersede the health and safety commitments already set out in legislation such as the 1974 Act?

I hear what the hon. Gentleman says. There is existing law and the Bill will be taken into consideration by the courts in the round, along with that law. The Bill is not intended to supersede this or that law; it is intended first to direct the judges in a court to take into account certain specific factors, which the Compensation Act 2006 currently does not do. That Act simply says that the court may take things into account; the Bill says that it must. Secondly, the Bill is intended to send a powerful message to the public that when they do the right thing, the courts will take that into account.

May I press the Minister on the point raised by the Opposition, particularly the term “generally responsible”? I spent more than 20 years working in the chemical industry, which, in common with most heavy industry, has an attitude towards safety that is not just generally responsible but incredibly responsible. However, I would not expect that to be used as an excuse for a failure of the type mentioned by the hon. Member for Derby North. I have also done consulting for the construction industry, where one particular company showed a generally irresponsible attitude toward safety. I would expect that company to face the full force of the law. Returning to the companies that put safety as No. 1 and really mean it, surely the Minister would not expect that attitude to absolve them of responsibility in a particular case, would he?

I may be misinterpreting what is being said, but I have full confidence in the interpretations made by our judiciary. I am confident that the courts will look at the facts of the case, the track record and the circumstances leading up to a particular issue or accident, and take everything into account. I do not feel that it is necessary to qualify what is already there. I have confidence that our judiciary will take into account the factors that Members on both sides of the Committee want them to take into account.

The Clause is broadly drafted so that it will be of relevance in a wide range of situations. It is aimed at helping all individuals and organisations, including hard-working owners of small businesses who try to do the right thing by adopting a responsible approach towards the safety of others.

I might be being obtuse, but I am not trying to be difficult, for once. I have yet to understand the difference between what the Government are trying to do in clauses 2 and 4 and in Clause 3. I described the Opposition’s additional concerns, but the Minister said  at the beginning that the provisions changed the law, so what is the difference between how clause 3, as opposed to clauses 2 and 4, is supposed to act on the court?

Clause 3 invites the court to consider placing weight on the defendant’s general behaviour in relation to the activity in the course of which the negligence is alleged and to determine in that light whether they were in breach of the standard of care. There is a difference, because, while it is open to the courts to look at all the circumstances of a case in reaching a decision on liability, they are not currently obliged to consider whether a person took a generally responsible approach to safety during the activity in question. The language about acting in a generally responsible way does not feature in the case law.

I think we are getting to the heart of this. Again, I am not a lawyer, but it seems that the distinction might be between the penalties and the judgments made. The company’s record might be taken into account in determining the sanctions and penalties, but the Minister has once again suggested that it might also be relevant to the question of actual liability—in other words, in the judgment itself. Will he say a bit more about whether he is talking about it applying to the judgment? I can see the logic behind saying that, if a company is generally responsible, there may be some mitigation in terms of the penalty in the case.

I say again to my hon. Friend and others that I cannot be drawn on hypothetical cases. I am confident that judges will look at this. The Clause does make a change. The language about acting in a generally responsible way does not feature in the case law, and I am trying to be helpful in outlining where the Bill is different. The Opposition have said in the past that it makes no difference to the law, and I am trying to be helpful by pointing out where the changes are. I am also trying to make it clear that, while we direct the court to take certain things into account, I am not telling judges what decision they should come to as a consequence of looking at everything in the round.

The Minister has now said something that really concerns me. If he does not believe that this approach exists in case law, judges are therefore judging each individual incident on its merits. Is he suggesting that they stop doing that and use a broader assessment of an institution’s behaviour in a particular instance in coming to their judgment, putting far less weight on the circumstances of the incident? Is that what he expects to happen?

I am saying that the courts must take into account the factors we have highlighted in the Bill. Then the judges—in the light of their experience and based on the facts before them in each case—must draw their own conclusions.

The Bill does two things: first, it directs the court to take into account certain things, which are discretionary at the moment; and, secondly, it is intended as a message to the public, as I said earlier on.

Clause 3 is broadly drafted so that it will be relevant in a wide range of situations. It is aimed at helping all individuals and organisations, including owners of small  businesses, who try to do the right thing. If, notwithstanding their efforts, something goes wrong in the course of an activity, and somebody suffers loss or injury, the clause’s provisions make it clear that the courts will take full account of the context and the surrounding circumstances in any ensuing claim for negligence or breach of statutory duty. That will help to deter people from bringing speculative and opportunistic claims and will give confidence to responsible employers and others that if they resist such claims, the law will be on their side.

The provisions do not direct the courts as to the conclusion that they should reach, and will not prevent a finding of negligence or breach of statutory duty where that is warranted. I am confident that the courts will continue to take a common-sense approach to these cases and will exercise the flexibility that the clause gives them to reach a just decision in relation to all the circumstances of the individual case.

I hope that I have been clear. I urge the hon. Member for Hammersmith to consider accepting the clause. We have dealt with the provisions, and on that basis I hope that clause 3 will stand part of the Bill.

This Clause has the same fault as the other clauses, in that it is not well drafted, but we will not vote against it on that basis. It may be my fault, but I am still not exactly with the Minister on his explanation of why this clause is being treated differently from the other clauses; I am referring to the impact that it will have in terms of legislative change. In a way, it should be a good thing if I cannot work that out. The sticking point for me is that I cannot see any merit to what is proposed in this case, whereas I can see that there is at least a good intention in clauses 2 and 4, whatever their limitations.

I think that the questions from the hon. Member for Redcar were very pertinent. I do not know whether he will vote with us on the clause, but that is a matter for him. There is no positive coming out of this; it seems to me that there are only negatives. I do not want to repeat myself. I have said that the clause is diluting responsibility for negligence. It is certainly confusing. It will certainly create more bureaucracy. I think that that is down to some mala fides on the part of the Government, and for that reason we wish to vote against clause 3.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 9, Noes 5.

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill.