'Desirable activities': a waste of time

The whirlwind of criticism that has surrounded the government's misguided attempts to clarify the law on negligence in Part I of the Compensation Bill is finally beginning to have an effect.

The Department of Constitutional Affairs has shifted its position as the Bill has come under fierce scrutiny in the House of Lords. At first, it stubbornly said that Part I - with its talk of the courts ensuring that anything that could be called a 'desirable activity' is not threatened by decisions on standards of care - was not even up for debate. Now it is indicating that it will be prepared to consider amendments. This is good news for everyone apart from lawyers relishing the possibility of arguing the toss over what constitutes a 'desirable activity'.

The origins of Part I go back to when the Prime Minister made a speech early last year in which he promised to reform the law of negligence so that the 'threat to school trips' his speechwriter had just read about in the Daily Mail could be lifted. The Prime Minister did not produce one jot of evidence to show that the courts had done anything to deter well-run school trips from taking place, probably because such evidence is scarce. It is the fear of being sued, stoked up by an unholy alliance of ambulance-chasing claims managers and the Daily Mail that is the biggest deterrent: the courts have held a sensible line. But once the PM makes such a commitment, the rest of government jumps: hence Part I of the Bill.

The trouble is, it's nonsense. If the courts decide what constitutes a 'desirable activity', does that mean everything else is undesirable? Also, is the Bill really saying 'desirable activities' should be subject to lower standards of care than 'undesirable' ones?

Now the government has indicated that it will consider amendments, I expect the absurdity of this proposal to become self-evident. Unfortunately, this doesn't necessarily mean that it will be dropped, as Parliament is quite capable of passing absurd pieces of legislation. It does, however, increase the chances of it being axed. Then we can all concentrate on the real problem, dealt with in Part II of the Bill: the regulation of claims managers and the clampdown on the cowboys.