Clause 3: Responsibility
1: Clause 3, page 1, line 10, leave out “activity” and insert “act or omission”
My Lords, Amendment 1 is in my name and that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It raises a drafting point, which will encourage even more noble Lords to leave, but it is a drafting point of some significance on this curious Bill.
The purpose of Clause 3, as the Minister explained on Report, is to make clear that the court, in considering a claim of negligence, must take account of the context in which the alleged negligence occurred. Of course, that is already what courts do—but we have had that debate. On Report, concern was expressed that the word “activity” in Clause 3 is too broad. The reason for the concern is very simple. We all agree, including the Minister, that it is not the intention of this clause that, when a doctor is sued for negligence for cutting off my right leg because I had a pain in my left leg, it should then be open to the doctor to plead in his or her defence, “I have been treating legs for 40 years and have never before made such a mistake”. We all agree that the doctor should not be able to rely on such a matter in the defence. What the claimant is concerned about, and what the court must address, is what happened on the specific occasion when that claimant was treated.
The Minister confirmed that that is indeed the Government’s intention. He said on Report on 15 December, in answering questions about a hypo-thetically negligent accountant, that,
“it would be the particular tax return or the particular piece of advice”,
which mattered. He added:
“It would be no good for them to say, ‘In the 99 other years in which I did this particular act”—
accountants have a very long professional career—
“I did a good job’”.—[Official Report, 15/12/14; col. 37-38.]
So we all agree that that should remain the law. The problem is that the word “activity” in the first line of Clause 3 suggests the contrary. It requires the court to have regard to “carrying out the activity” in the course of which the alleged negligence occurred. However, the word “activity” might suggest the general practice of medicine, accountancy or whatever function is performed by the defendant. Since we all wish that the court should continue to focus on the treatment of this claimant on the occasion when the alleged negligence occurred, I suggest that the words “act or omission” are much more appropriate than the broader term “activity”.
Amendment 2, in the name of the Minister, would replace “generally” with “predominantly”. That is an improvement to Clause 3 that I support, but it does not address the problem that I am concerned about, caused by the inappropriate use of the word “activity”. I beg to move.
My Lords, I have added my name to this amendment because, speaking as a judge of 28 years’ experience, it concerns me that judges in future are going to have to deal with the Bill in its present form. It would be so much easier and less muddling for them if we managed to make the amendment for which we are contending today. Everyone agrees that Clause 3 is the only part of the Bill that is intended to effect any change whatever to the law. Its essential purpose was set out by the Minister at some length on Report, but really one can simply cite this passage:
“If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability?”.—[Official Report, 15/12/14; col. 36.]
So far, so good—in all events, it is too late now, at Third Reading, to question the desirability of making this sort of change without taking any soundings from, for example, the Law Commission, a point that was stressed strongly on Report by my noble and learned friend Lord Walker of Gestingthorpe—but the real difficulty with the present wording was crystallised on Report in the exchange between the Minister and the noble and learned Lord, Lord Goldsmith. The noble Lord, Lord Pannick, has already made some reference to that exchange, but perhaps it is worth setting it out at a little greater length. The noble and learned Lord, Lord Goldsmith, raised the question of what would arise if, say, someone sued their accountant for negligence with regard to the completion of their tax return, and he suggested that under Clause 3 in its present form the accountant could say:
“‘The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record’. How do the words in the clause prevent that from being done?”.
The Minister responded by saying that,
“the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says”.
The noble and learned Lord, Lord Goldsmith, in turn said:
“It would not be this tax return, surely, but the activity of advising on tax returns generally”.
The Minister’s response—this is the final quotation from that exchange—was:
“I respectfully disagree with that interpretation because it is concerned with the activity in question, ‘in the course of which the alleged negligence or breach of statutory duty occurred’. It would not therefore, deal”—
the noble Lord, Lord Pannick, has cited this—
“with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause”.—[Official Report, 15/12/14; col. 37.]
There we have it. At present, all one can say is that the wording is at best ambiguous. It surely seems sensible to narrow down the word “activity”. Indeed, the noble and learned Lord, Lord Hope of Craighead said:
“Using the phrase, ‘activity in question’ is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about”.—[Official Report, 15/12/14; col. 38.]
Clause 1, of course, sets the context for all three of the substantive clauses and makes plain that they are to apply when the court is,
“determining the steps that the person”—
I interpolate that “the person” is the defendant—
“was required to take to meet a standard of care”.
It can be put very simply. The phrase “act or omission”, which our proposed amendment would substitute for the word “activity” in Clause 3, would surely harmonise altogether more easily with the language of Clause 1 and focus the court’s attention more narrowly on determining the steps that the defendant should have taken to avoid a finding of liability. It is a small amendment, but a sensible one, which would give effect to what the Minister himself suggests is the proposed limited scope of this provision and would help courts in future.
My Lords, I have forborne to say a word on this Bill until this moment. I rise only to say that the phrase “act or omission” is extremely well known in the law and is one which judges—I, too, sat as a judge for many years—understand perfectly well. The word “activity” is ambiguous. The noble Lord, Lord Pannick, and Simon—I am sorry, I should have said “my noble and learned friend Lord Brown of Eaton-under-Heywood”; the trouble is I know him so well—have made absolutely clear the ambiguity of this word. I cannot understand why the Government do not just take the perfectly sensible phrase “act or omission”.
My support for this Bill has been very well documented. Notwithstanding the attacks on it from noble Lords and, especially, noble and learned Lords, I continue, albeit as a non-lawyer, to believe it will play a useful role in encouraging, or at least not discouraging, individuals getting involved and participating and in consequence strengthening our civil society and so improving social cohesion. I fully admit there are aspects of the Bill which overlap with the provisions of the Compensation Act and that the provisions of the Bill will not provide a complete solution to what some people argue risks becoming an increasingly atomised and introverted society. It is just as important that the Bill will help with better insurance provision and the busting of myths.
One of my principal reasons for supporting this short Bill is that it provides clarity; it uses short, uncomplicated language that is comprehensible to the regulars in the saloon bar of the Dog and Duck. On Report, this approach seemed to come under attack from what seemed to be two diametrically opposed reasons, which have started to reappear in our debate this afternoon. The first approach, which was adopted by the noble and learned Lord, Lord Lloyd, and which was supported on Report to some extent by the noble Lord, Lord Pannick, at col. 17, which I will not quote this afternoon, appeared to argue that this legislation was superfluous in that judges could always be relied upon to take into account the factors that form the subject of the Bill. Later on in our debates, the focus changed and a number of noble Lords, in particular the noble and learned Lord, Lord Walker of Gestingthorpe, at col. 46, argued that the provisions of the Bill were too wide and required focus and definition to guide the courts and judges.
This amendment in the name of the noble and learned Lord, Lord Brown, seems to be moving towards the second approach. I therefore have concerns about the impact this amendment may have upon the clarity of the Bill, at least as it is seen through the eyes of the regulars in the saloon bar of the Dog and Duck. I have listened carefully to the two noble Lords who proposed the amendment, and I hope that they will forgive me if I say, again as a non-lawyer, that I have concerns about what they propose. My question to my noble friend on the Front Bench is: do we need three words in the place of the current one word? “Activity” has a simplicity and a clarity which may be clouded by those additional words. Generally, the shorter the better, so my instinct is to resist this proposal. However, I await his further advice.
Before I conclude I turn briefly to government Amendment 2. I am grateful to my noble friend for having taken away the amendment I proposed on Report on 15 December and for having responded so positively. The amendment was originally put down in the name of my noble friend Lord Hunt of Wirral, whom I am glad to see in his place this afternoon and who unfortunately was not able to be present on Report. He will be able to speak far more eloquently about this than me. I close by repeating my thanks to my noble friend on the Front Bench. The change that he is proposing this afternoon will improve the balance by encouraging people to get involved but without encouraging them to do so in a thoughtless or irresponsible way.
My Lords, I declare my interest as a partner in the global commercial law firm DAC Beachcroft and refer to my other interests in the register.
However, for the purpose of this short debate I add that I have just this morning returned from an expedition to Antarctica, where I must say my boundaries were severely tested. I found myself in the company of adventurers, and I have to tell the Minister that they greeted the Bill with enthusiasm. They took the view that we have achieved the wrong balance, with too much emphasis on health and safety, which, sadly, has led to the cancellation of a lot of trips similar to the one that I went on—I now hold an award and a certificate for following in the steps of Roald Amundsen. I did not go quite as far as he did, but I feel that I have seen the effect of taking risks on the development of one’s own personality and abilities. Younger people certainly benefit from those boundaries being tested. Therefore I bring to the Minister unbridled enthusiasm for the Bill and a slight questioning of why senior lawyers have found fault with it so much.
I speak from my own experience, having dealt with the Compensation Bill, which is generally accepted as a good Bill. At the time, it came under severe attack from some of the most senior lawyers in this House, who tried to explain that it did not add anything and that it should all be left to the judges. They asked why on earth we were repeating the judgment of the very senior noble and learned Lord, Lord Scott of Foscote, who set out the position very clearly indeed, which we repeated in Clause 1 of the Compensation Act 2006. But the general view is that that has done a great deal to calm people down and to stop the cancellation of a lot of adventure holidays.
Finally, I say to my noble friend the Minister how pleased I am that he has decided to delete the word “generally” and insert the word “predominantly”. I thought about all sorts of other words that could be used, as he may have guessed, but I think that the word “predominantly”—for someone to have to demonstrate “a predominantly responsible approach towards protecting the safety or other interests of others”—really clarifies the position brilliantly. I am very grateful to my noble friend for proposing that amendment today.
All that I will say to the other lawyers in the House, who are far more senior than I could ever aspire to be, although I have been in the same firm now for 50 years, is that I bow to their judgments—indeed, I have to observe them and listen to them on many occasions. However, I question for a moment whether it might not be more acceptable for the House to recognise that this Bill will do much to further the opportunities, particularly for younger people, to take the sort of risks that perhaps at my age I should never even have dreamt of, such as traversing the crevasses that I did over the weekend. I think that it did me a lot of good and will do them a lot of good, too.
My Lords, I was anticipating that the Minister would now move his amendment, but perhaps in the circumstances it would be sensible if I spoke from the Opposition Front Bench.
The literary world is familiar with the concept of vanity publishing; this Bill is an example of its parliamentary equivalent, vanity legislation. Clause 3, with or without the government amendment, or that of the noble Lord, Lord Pannick, is the only clause that even purports to effect a change in the law—and that, in the words of Shakespeare’s Richard III, whose subject Ministers, and this Minister in particular, have so frequently prayed in aid, in a manner so “lamely and unfashionable” as to make it worse, not better.
It is noteworthy that, time and again, as this essentially trivial measure has made its way through both Houses, Ministers have harped on the alleged need, in the words of the Minister at Report,
“to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued”.
In a remarkable non sequitur, the Minister went on to express the hope that,
“this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side”.—[Official Report, 15/12/14; col. 34.]
That is a reference to the dreaded compensation culture which apparently haunts the sleepless nights of Ministers, potential defendants and their insurers—and now, we understand, possibly penguins in the Antarctic—but whose actual existence is more imaginary, in terms of cases brought, than real.
Again and again, Ministers have prayed in aid personal injury claims as examples of where a generally —or as it will be if the amendment is passed, “predominantly”—responsible attitude has been exhibited in the course of the activity subject to a claim. The Minister dwelt on this aspect on Report, saying that Clause 3,
“represents a change to the law in that it—”
that is, the existing law—
“does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendant’s conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one”.—[Official Report, 15/12/14; col. 36.]
I repeat that the Minister’s amendment would substitute “predominantly” for “generally”. This formulation is effectively a set of thematic variations of a kind so enigmatic that they are positively Elgarian. We should recall that Clause 3 will apply not only to personal injury claims—the subject which most of your Lordships who have supported the Government, particularly the noble Lords, Lord Hodgson and Lord Hunt, have addressed—but to an enormously wide range of potential claims for negligence, breach of statutory duty or breach of contract, where the damage might be significant without any element of safety being in jeopardy.
Therefore, I repeat the question I asked at the earlier stages of this sorry Bill’s journey through the House: why should the negligent solicitor, accountant, financial adviser, architect, builder, tradesman or manufacturer, and more especially their insurers, escape liability to compensate an innocent client or purchaser because their conduct has been predominantly responsible—or in slightly different terms if the amendment of the noble Lord, Lord Pannick, is adopted—during the activity in question?
The amendments tabled respectively by the noble Lord, Lord Pannick, and the Minister seek to insert wording that is marginally better than the existing term “generally”, but significant questions still remain unanswered. What does “predominantly” mean? Why should the solicitor who drafts a will but allows a beneficiary to witness it, an accountant who prepares a complicated set of accounts but inadvertently omits one or two relevant matters—the Goldsmith example cited by the noble and learned Lord, Lord Brown—or a builder who, in constructing a house, fails properly to connect a radiator, thereby causing a water leak, escape liability because the rest of what they did in connection with their jobs was responsible? Moreover, what is the meaning of “responsible”? What does it actually impute?
Even if the amendment of the noble Lord, Lord Pannick, were accepted, this clause, far from clarifying the law, seems likely to promote more, not less, litigation, unless, of course, people of modest means, for whom legal aid will not be available, are deterred from bringing otherwise well founded claims and are thereby denied justice. But perhaps that is, after all, what the Government really want and what the Bill will produce if Third Reading is concluded this afternoon and it is enacted, as in all probability will be the case. It does not enlarge any substantive issue and addresses a problem which essentially does not exist. Clause 3 which, as I say, is the only part creating a new position, actually makes the legal position worse, and will prejudice a great many more people.
My Lords, this issue has not occupied a great deal of time in your Lordships’ House but it has been the subject of vigorous debate. It has been assumed that these matters are discussed in the Dog and Duck from time to time. Before today, I do not think that it was even envisaged that the discussion extended as far as Antarctica.
This is a small but important Bill, as the Government have said on a number of occasions. First, I wish to deal with the government amendment. In the course of the debates on Clause 3 at previous stages, concerns were raised from a number of perspectives regarding the use of the phrase “a generally responsible approach”. The noble Lords, Lord Beecham and Lord Pannick, expressed concerns that using this phrase might suggest that a court should give weight to a defendant’s track record on safety, rather than focus on his or her conduct in the specific activity giving rise to a claim. My noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral supported the clause but took the view that the word “generally” is capable of bearing a broad range of definitions and, conceivably, may serve to confuse.
I indicated on Report that we were attracted to the suggestion made by my noble friends of replacing “generally” with “predominantly”, and, following further consideration, we have concluded that this is the best approach to give greater clarity to the aim of the clause. This amendment makes clear that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record. Instead, it means that the court must focus on whether the defendant has taken a predominantly responsible approach to safety in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred. As I have previously explained, we believe that this is an important factor that merits the court’s attention.
Perhaps I may deal with some of the points raised during this short debate. The House will not have lost sight of the fact that the scheme of the Bill is that the court must “have regard” to certain matters, including those we are currently concerned with in relation to Clause 3. This does not mean that the court ignores all the other matters relevant in a negligence action; it simply must have regard to certain matters but may decide that they are not of sufficient importance to have a significant effect on the outcome of the case.
I shall deal with the point raised by the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, about an accountant—the subject of an exchange on Report between myself and the noble and learned Lord, Lord Goldsmith. I said then—while slightly exaggerating the longevity of an accountant’s profession —that it did not matter whether previous tax returns had been completed impeccably if a tax return or the advice in question was negligently done. I adhere to that. I might, of course, have given a further answer, which is that the relationship with an accountant is almost always contractual. As well as owing a duty of care in tort, he or she will owe a contractual duty to exercise reasonable care in providing accountancy services. Section 13 of the Supply of Goods and Services Act provides:
“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.
The implied term can be negative or varied, provided that it does not fall foul of the Unfair Contract Terms Act 1977.
However, the real issue here is whether the term “carrying out the activity” is sufficiently clear. We think that this is a matter that judges will have no difficulty in interpreting. The activity in question would be completing the tax return, as I said previously, but I shall endeavour to give an example of what this clause is aimed at. I eschewed giving examples for the fear that they can be misleading. However, many claims are brought against supermarkets for spillages that take place in their aisles. With the best will in the world, from time to time, yoghurt, milk, soft drinks or the like are found on the floor. They therefore present a potential slipping or trip risk; and, apparently, a lot of people have, or have alleged that they have, fallen on these slippages. A well ordered supermarket will have a means of ensuring that these spillages are cleared up as soon as reasonably possible, and that, if necessary, some sort of sign can be put around them while they are being cleared up, or that somebody has charge of the process of clearing them up. Nevertheless, such a short period may elapse between the spillage and the accident that this may be impossible. What the Bill is aimed at is: if you are shopping at a supermarket and if its approach towards your visit is, “We don’t really mind that there is a spillage. We don’t have anything by way of a system. The spillages can remain there in the aisle”, then that is perhaps a relevant factor. On the other hand, if it has a system that is satisfactory and sensible—so that designated people are in charge of clearing up or guarding against these slippages—that is a responsible attitude. It should have the desirable result of limiting the number of accidents. However, it is also a matter that most people would think ought to be taken into account in deciding whether there was negligence.
The argument that this is too broad would have a little more force if the words “carrying out the activity” were not there. As I said, that focuses on the activity of a visit to the supermarket or something rather more specific, but is not quite as narrow as “act or omission”, which is proposed to be inserted in the Bill. I accept what the noble and learned Baroness, Lady Butler-Sloss, said: “act or omission” are words that are very familiar to judges, although “carrying out an omission” is rather an infelicitous concept. It is difficult to know how one carries out an omission. I acquit the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, of poor draftsmanship, because I suspect that their answer would be rather like what the Irishman is alleged to have said to the man lost in Ireland and looking for directions: he “would not necessarily start from here”. However, this clause is likely to be part of the law and we must have an amendment that is helpful and clarifies the law. We say that the proposed amendment does not help. We consider that the clause as worded, and as my noble friend Lord Hodgson said, ensures that the court’s attention is focused specifically on the activity in the course of which the alleged negligence or breach of statutory duty occurred. We think that the clarification of the different adverb that the Government have tabled will remove any residual uncertainty. Therefore, we do not believe that the amendment would improve the clause’s drafting or its effectiveness.
The noble Lord, Lord Beecham, was rather more wide-ranging in his attack on the Bill. I do not think it would be helpful to the House if I repeated the answers that I have given to his many attacks on the Bill throughout its passage. We are dealing with a relatively narrow amendment.
It is possible that the amendment tabled by the noble Lord, Lord Pannick, might narrow the scope of the clause by directing courts to focus on whether a single act or omission in the course of a particular activity was predominantly responsible, rather than on whether the defendant’s approach to the activity as a whole was predominantly responsible. While the Government agree that the term “activity” should not be given an overly broad interpretation for the reasons that I have given, we do not think that the court’s focus should be narrowed to the extent that the amendment suggests. We believe that it must be right in cases such as these to require the courts to take a broader view of the defendant’s conduct by looking at whether his approach to safety—taking into account all he did or did not do—was predominantly a responsible one.
At earlier stages of the Bill, the noble Lord, Lord Pannick, asked me whether this would lengthen cases, as people would look at the overall approach. With great respect to him, in these cases a claimant or defendant will often look at their system generally. If there is an accident, attention will often be drawn to an accident book or an accident record, or the proper approach to a history of accidents. I do not accept that there will be any significant lengthening or complication of litigation as a result of this.
The Government’s approach will help to reassure a wide range of individuals and organisations—whether it will spur them on to the sort of adventure undertaken by my noble friend Lord Hunt of Wirral, I am not sure. However, we hope that it will help to encourage volunteering and to remove, at least to some extent, the shadow that can hang over many activities: the fear of litigation. I simply do not accept the disavowal by the noble Lord, Lord Beecham, of there being a compensation culture, or, at the very least, a perception of one.
We think that the courts will still have every opportunity to come, as they do, to sensible decisions on the facts of each case, using the well established principles of negligence. We regard these changes brought about by the Bill, particularly Clause 3, to be modest in scope, nevertheless representing a change that reflects what most would regard as sensible.
I shall move Amendment 2 in due course, and I hope that, on the basis of the explanation I have given, the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, will agree to withdraw Amendment 1.
My Lords, I am very grateful to noble Lords who have contributed to this entertaining debate. I remain concerned about the width of Clause 3 but I am not going to divide the House. To use the Minister’s analogy, there is no point in crying over spilt yoghurt.
Mr Grayling, the Lord Chancellor, has told us—and the noble Lord, Lord Hunt of Wirral, has confirmed from his Antarctic experience traversing crevasses—that men and women up and down the land are standing ready to volunteer for social action. They are preparing themselves for acts of heroism, waiting only to receive the message that Parliament has approved this Bill to remove the concerns that they otherwise have about litigation. Then off to the youth clubs and old-age homes they will go to volunteer and into the lakes they will dive to rescue those in danger, and in those circumstances it would be irresponsible of me to delay the Bill any longer.
The noble Lord, Lord Beecham, was less than complimentary about the Bill, but surely, so long as negligence cases are brought in this land, it will stand as a monument to the jurisprudential and policy achievements of Lord Chancellor Grayling. It is a fitting testament to the Lord Chancellor:
“Look on my works, ye Mighty, and despair!”.
This always was and it remains the most ridiculous piece of legislation approved by Parliament in a very long time. However, I pay genuine tribute—I emphasise “genuine tribute”—to the Minister, who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy, to a text that would barely muster a pass mark in GCSE legal studies, if there is such a thing.
When the noble Lord was appointed to his position on the Front Bench, he would no doubt have looked forward to debating important issues of law and justice, and I doubt that he expected that he would be the straight man in Mr Grayling’s comedy routine, requiring courts to consider whether a defendant has acted heroically. Well, the Minister has heroically dived into the lake created by Mr Grayling’s conference speech. He has rescued this pitiful creature of a Bill—and it is a pitiful creature—and has emerged from the lake with his hair still dry and his suit entirely uncrumpled, he is not even out of breath and he has done it all with a straight face. If I may say so, that is deeply impressive, which is more than can be said for this Bill. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
2: Clause 3, page 1, line 12, leave out “generally” and insert “predominantly”
Amendment 2 agreed.
Bill passed and returned to the Commons with amendments.