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Clause 3 — Responsibility

Social Action, Responsibility and Heroism Bill – in the House of Commons at 3:45 pm on 20th October 2014.

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Votes in this debate

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 3:45 pm, 20th October 2014

I beg to move amendment 2, page 1, line 12, leave out “generally”.

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

With this it will be convenient to discuss the following:

Amendment 3, page 1, line 13, leave out

“or other interests of others” and insert “of employees or bystanders”.

Amendment 4, page 1, line 13, at end insert

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

Amendment 5, page 1, line 9, leave out clause 3.

Amendment 6, in clause 4, page 1, line 17, leave out from “danger” to end of line 18.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I will deal briefly at the end with the amendment relating to clause 4. It raises the issue posed by Sir Bob Russell about St John Ambulance and its concerns about the Bill. Amendments 2 to 5 deal with what is effectively the Bill’s only operative clause, clause 3. Again, I make no apology for saying that these amendments were put in Committee.

Amendments 2 to 4 propose ways of improving the drafting of what everyone from the Law Society to legal practitioners and commentators has described as one of the worst-drafted pieces of legislation they have ever seen. Our concern is that clause 3 is drawn very widely. It 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.”

That is hedged around with many generalities. What is a “generally responsible approach”? What does the “safety or other interests” of others mean? Our amendment 4 attempts to clarify the clause by adding the words

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

The Minister was made aware of this point in Committee so I shall not explain it at length, but the purpose of our amendments is to ensure that if material other than that specifically relating to a particular incident is taken into consideration, it should have a direct causal link—through time, location or type—to the incident being complained of. Otherwise, we risk opening up many cans of worms. In relation to an accident at work, for example, the entire conduct of an employer or employee over a long period could be taken into account, as could working practices and conditions, as well as “other interests”, whatever they might be. I suspect that, in trying to keep the ministerial team happy, the parliamentary draftsmen have been scratching their heads and trying to come up with something. Our amendments are meant to be genuinely constructive in trying to improve the drafting of the Bill—if that is possible. But I shall say no more about that.

Photo of Andy McDonald Andy McDonald Labour, Middlesbrough

Amendment 2 proposes leaving out the word “generally”, in the context of the person who might have difficulty showing that they have demonstrated a “generally responsible approach” towards protecting the safety of others. My hon. Friend has rightly focused on the word “generally”. Sir Edward Garnier has said that he suspects the Bill will be the subject of derision and confusion if it is enacted as drafted, but is that not already the case?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

At best, the word “generally” adds nothing to clause 3. At worst, it could mean that everything including the kitchen sink is thrown into litigation by defendants who are desperate to show that they are not liable for a particular tort. That could lead to additional costs and complexity, red herrings, satellite litigation and who knows what? I hope that the Minister will at least go so far as to say that the drafting of the clause could be improved. Having said that, I do not think its drafting could be improved; it simply needs to go. I therefore hope that he will agree to amendment 5 and sacrifice the clause. He would be losing only one clause out of the five. I am sure the Bill would be just as good with four clauses as with five.

I will not repeat what I have said in previous debates on the Bill, but the Minister has said at some stages that this is an attempt to change the law. In more candid moments elsewhere, he and the Lord Chancellor have indeed suggested that this is an attempt to skew the balance in personal injury litigation, particularly between employers and employees. An article in The Daily Telegraph has described the proposals as sending a

“blunt message to the trade union officials who bring thousands of negligence cases against employers every year”.

I do not know whether the Minister has ever been a member of a trade union or whether he is familiar with their work, but much of the unsung detailed work that they do on behalf of their members is exactly in this area of assisting with litigation against employers in meritorious cases, just as any other solicitor might do. Personal injury cases are not brought for fun or to make a political point. They are brought because there has been an injury and there is substantial evidence of negligence. We fear that the clause is designed to weaken the ability of those who have suffered injury at work—or elsewhere, but I suspect that it is primarily directed at injury at work—to take their cases to court, and that they will either not be able to bring those cases or will not succeed with them, despite their merit.

Photo of Bob Russell Bob Russell Liberal Democrat, Colchester 4:00 pm, 20th October 2014

Will the shadow Minister join me in congratulating all those involved in producing the Health and Safety at Work etc. Act 1974, which celebrated its 40th anniversary this year? An estimated 40,000 lives have been saved in the workplace, and there was not a single fatality during the construction of the Olympic stadium.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I absolutely agree with the hon. Gentleman. The Act was a landmark piece of legislation—one of those seminal pieces of legislation—and it could not be more different from this Bill. It has made a cultural change, and has indeed been responsible for saving many hundreds, if not thousands, of lives.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

I am sure my hon. Friend has noticed that a Labour Government introduced the Health and Safety at Work etc. Act. Does he agree that this Bill confuses issues of health and safety with issues of negligence? There does not seem to be any real difference that warrants the definition.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

This Government have already been responsible for full-frontal, across-the board assaults on health and safety in the workplace, from the changes in part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to the changes in the Enterprise and Regulatory Reform Act 2013 in relation to strict liability in breach-of-statutory-duty cases. This is just another of those assaults, but I believe that it is an ineffective attempt. I have confidence in our courts, and I am sure that even if the Bill is passed unamended, the judiciary will treat it with the contempt that it deserves. They will consider the matters that are dealt with in the Bill, as they would have anyway, but they will not give those matters undue consideration because of what is in the Bill, and they will continue to find for meritorious claims and against unmeritorious ones. Of course, it remains the case that if an employee is on a frolic of his own—if he is, as the Lord Chancellor would say, trying it on—the courts will find that out, because that is exactly what the trial process is about. The Bill does nothing but add confusion.

If clause 3 is intended to change the law—no doubt the Minister will clarify that—for whose benefit is it intended to change the law? It seems to me that the Government can only be seeking to bring in extraneous factors which will allow a defendant to deflect from or evade responsibility in negligence and breach-of-statutory-duty cases. The cards are stacked very much in favour of the employer in such cases. The employer controls the accident site, and the employer, directly or through his insurer, has the weight of finance and advice. The employee is often restricted, first, by nervousness about suing his employer; secondly, possibly by his injury; and thirdly, possibly by a lack of income as a result of the incident.

Why would a Government wish to set out to hobble a claimant in that respect other than because some blind prejudice causes them to consider all claims by employees against employers to be unmeritorious? The same motivation led to the 80% decline in employment tribunal cases that has followed the introduction of fees, and the Government have shown the same attitude to health and safety generally in their cuts to the Health and Safety Executive, as a result of which inspection regimes are not what they were, despite the Health and Safety at Work etc. Act. Unless the Minister either agrees to amendment 5 or can, very persuasively, show us that it would not have any material effect, I suspect that we will press the amendment to a vote.

Let me briefly deal with clause 4, about which a number of issues were raised in Committee. We have not sought to bring those up again, but one or two of the interventions were about the definitions of “heroic act” and “hero”, and about other poor drafting. I will not address those points this afternoon but, given the criticism from Members on both sides of the House, it is worth asking the Minister whether he will consider withdrawing the final words from clause 4:

“without regard to the person’s own safety or other interests.”

St John Ambulance has clearly made the point that that is an irresponsible provision. It does not add anything; all it encourages is reckless behaviour likely to put either the putative hero or others engaged in such action at some risk. It is a loose and careless piece of drafting, and the Minister would do himself credit if he simply withdrew it. The brief that St John Ambulance prepared for us not only made that point clearly, but made the point raised by Sir Bob Russell.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

The one thing the person will not think about when he or she sees something that they could help with is any Bill or legislation. They will think, “I’ve got to do something. I’ve got to help this person.” Whatever we legislate on, we have to make sure that someone who really cares is not inhibited from taking such action.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I could not agree more. The hon. Gentleman’s comments undermine the whole purpose of this Bill, which is, supposedly, to exhort the public to do things that they would almost certainly do anyway. I do not think the public need this Bill to be encouraged to volunteer or to be told that they should intervene when situations demand. The practical point, which St John Ambulance makes, is that if there was a much greater emphasis on first aid training and on people being competent to intervene, not only would the outcome of interventions be better, but people would feel more confident about intervening. The evidence shows that the principal reason for non-intervention is that people lack the confidence to know what to do and fear that they may make the situation worse. I do not believe for a moment that people do not intervene because of concerns for their own safety.

Photo of David Hamilton David Hamilton Opposition Assistant Whip (Commons)

Does my hon. Friend share my concern that we have to make sure that this is pushed through under Sewel, because although this is English and Welsh legislation, its effects will cover the whole of the United Kingdom?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Indeed. The Minister must be picking up, if not from this debate, but from the Bill’s previous stages, that at best there is weariness with more soundbite legislation and littering the statute books—[Interruption.] I believe that the Minister of State, Ministry of Justice, Simon Hughes has the brief within the Justice team to stop unnecessary legislation across government. He has taken his eye off the ball, because he cannot stop unnecessary legislation in his own Department.

The Under-Secretary must appreciate that criticisms are not coming just from Opposition Members. Although I do not expect him at this stage to abandon the Bill in its entirety, although he might as well put it out of its misery, he could at least take on board some of these sensible and constructive points. I appreciate that they are coming from me and so he might not want to do that, but other Members on both sides of the House have made the point about the wording of

“person’s own safety or other interests” and about the poor drafting of clause 3.

Photo of Philip Davies Philip Davies Conservative, Shipley

I totally agree with the hon. Gentleman on amendment 6, and I would happily vote with him if he put that to a Division. So there is support from Government Members, although I fear that as it is coming from me it may fall on the same deaf ears.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I assure the hon. Gentleman that I listen carefully to everything he says and give it exactly the due weight it should be given. I am very tempted by the thought that we might push our numbers up by one, but I hope that the Minister may give way on this measure and by the time it emerges from the other place the Bill will be improved at least to that extent.

Clause 3 is quite a dangerous provision. We have not voted against the Bill as a whole, because the Bill on the whole does nothing. Clause 3 will be ineffective if it is passed, but its intention is malevolent. It is harmful to good industrial relations and harmful to health and safety in the workplace, and it is a piece of prejudice that this Government and this Minister should know better than to pursue.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

As Mr Slaughter said, the issues were debated at length in Committee; indeed, notwithstanding our very thorough debate on the Bill, three sittings were left spare. Given the track record of the Labour Government, the Opposition’s claim that the Bill is unnecessary is extraordinary.

The hon. Members for Hammersmith and for Barnsley Central (Dan Jarvis) have tabled several amendments in relation to clauses 3 and 4. Let me respond first in relation to amendment 5, which would remove clause 3 from the Bill, and explain why it is important for the clause as a whole to be retained. I will then deal with the other amendments.

Clause 3 provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

The core aim of the clause is to provide reassurance to ordinary hard-working people who have adopted a generally responsible approach towards the safety or other interests of others during the course of an activity that the courts will always take that into account in the event of something going wrong and their being sued. We also hope that, by showing them that the law is on their side, the clause will give them greater confidence in standing up to opportunistic and speculative claims.

The need for that measure is amply illustrated by the evidence provided to the Committee by, for example, voluntary organisations and the emergency services. The damaging effects of the fear of litigation on people’s willingness to volunteer, and the propensity of some involved in accidents to bring opportunistic and spurious claims, were emphasised.

I am sure that the House will be surprised and indeed appalled by the example given by the Cheshire fire and rescue service, which has been sued by passers-by who have tripped over hoses being unwound by firemen to extinguish a fire. Those rescue workers were clearly acting in an emergency and their priority was to reach anybody who might be inside a burning building—[Interruption.] Opposition Members may smile and laugh, but that case is absolutely true.

The Government believe that it must be right in such cases to require the courts to take into account the general approach of the defendant towards safety during the course of the activity in question.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am both fascinated and amazed by the hosepipe case. Does my hon. Friend know what happened to that claim?

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

I do not know the outcome, but the fact that those people took legal action in the first place is the issue. People should not feel that they can try something on. My hon. and learned Friend is a distinguished lawyer and will probably know what the outcome would be. Perhaps he would like to enlighten the House in that regard.

The issue was not what the outcome was, but that the Cheshire fire and rescue service was taken to court in the first place. To those who may still have concerns about the possible effects of the clause, I would emphasise that 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 these cases, and will exercise the flexibility that the clause gives them, so that in each case they reach a just decision, in light of all the circumstances.

On points of detail, amendment 2 asks courts to consider whether the defendant was responsible, rather than generally responsible, during an activity, and amendment 4 ask courts to focus on the defendant’s approach to safety

“leading up to the alleged negligence”,

as opposed, for example, to their track record on health and safety matters over a longer period. As I explained when the hon. Member for Hammersmith tabled the amendments in Committee, 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” during the activity in which the alleged negligence occurred. That makes it perfectly clear that the Bill is concerned with the approach that the defendant adopted in the course of the events that led to the injury, and not with their actions in other unrelated circumstances, or their health and safety record over a number of years. During the activity in which the incident took place, if the person’s actions were risky or careless, and that caused injury, there is nothing in clause 3 to stop them being found negligent.

Photo of Andy McDonald Andy McDonald Labour, Middlesbrough 4:15 pm, 20th October 2014

What parameters is the Minister setting for courts by including such a woolly, vague and indeterminate word as “generally”? What if someone says, “A week last Tuesday, I behaved really properly, but on this occasion, I behaved like a nutcase”? Which one is it? This is a ridiculous way to go about legislating.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

It is not for me or this place to dictate to the courts the decisions that they should come to. It is for us to make the law, and for the courts to take account of all the facts that may apply to that case and come to their decision. That is how the constitution of this country has operated for centuries, and will continue to, as far as we are concerned. The clause says that if a person carries out an activity in a way that demonstrates

“a generally responsible approach towards protecting the safety…of others”,

and, despite their best efforts, something goes wrong and somebody is injured, the court should take full account of the circumstances. That represents a change, in that case law does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. I believe that it is a desirable and beneficial change that is both fair and proportionate.

Amendment 3 seeks to limit the effect of the clause to people who have been taking a generally responsible approach to the safety of “employees or bystanders”. The hon. Member for Hammersmith indicated that that was intended to prevent the provision from being interpreted as extending to entirely non-safety-related matters, such as protecting shareholders’ profits.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

On a point of clarification, if the Minister is saying that there is a change of law in clause 3 because the “generally responsible approach” is not in case law or statute, is he saying that the provisions in clauses 2 and 4 relating to acting for the benefit of society and acting heroically are in case law or statute?

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

As I said in Committee, where we debated this at length, clause 3 does make a change, for the reasons that I just gave. The purpose of the legislation is twofold. First and foremost, it directs the court to take into account certain factors that, at present, it has discretion to take into account under the Compensation Act 2006. Secondly, it sends the powerful message to members of the public who otherwise may not act in certain circumstances that the law is on their side.

On Second Reading, Alison Seabeck gave the example of a time when she stepped off a bus and saw someone lying on the ground, and was told by people who were standing by that they were worried that they might be sued, and so did not want to do anything, or words to that effect. My hon. Friend Andrew Percy also gave an example: when he, as a first responder, went to places to give people medical attention, others were standing by, saying that they were afraid of legal consequences and were therefore not taking any risks. The legislation sends out a powerful message to the public that the law will be on their side.

We have deliberately drafted the clause broadly so that it focuses on whether the defendant demonstrated a generally responsible approach towards protecting the safety or other interests of others. This ensures that it will be relevant in a wide range of situations and will enable the courts to take account of all relevant circumstances and apply the provisions as flexibly as possible to achieve a just outcome. The clause is not restricted to personal injury claims and could in principle be applicable in relation to other instances of negligence, such as damage to property or economic loss, where issues of safety may not necessarily be relevant. That is why a broad definition has been used.

Narrowing the clause, as the amendment would, would mean that many bodies such as voluntary organisations, religious groups or social clubs which demonstrate a generally responsible approach towards protecting the safety or other interests of their clients or members would not be able to benefit from its provisions. That cannot be right.

Amendment 6 would remove part of the wording in clause 4 which clarifies what is meant by “acting heroically”. Specifically, it would remove the final words of the clause, which refer to acting

“without regard to the person’s own safety or other interests.”

I am grateful to hon. Members for tabling the amendment, as we have been considering the issue carefully in the light of similar representations made by St John Ambulance and the Fire Brigades Union during the Committee stage. St John Ambulance indicated that the wording conflicted with first aid practice that discourages first aiders from putting themselves at risk, and the Fire Brigades Union warned that the clause more generally might conflict with advice to the public not to intervene.

After giving this matter further thought, we remain of the view that the courts will interpret the words

“without regard to the person’s own safety” in accordance with our intended meaning—that a person acts heroically by intervening to assist someone in danger, regardless of the fact that doing so might risk his or her own safety. The example I used in Committee was of a person who sees somebody struggling to stay afloat in a fast-moving current. That person might jump in to help on the spur of the moment, without first deliberating whether he might be putting his own life at risk.

Photo of Philip Davies Philip Davies Conservative, Shipley

I do not have an objection on the same grounds as St John Ambulance or the Fire Brigades Union. My objection to the wording that the amendment deals with is that it contains an unnecessary additional hurdle. The clause does not state “or without regard”. It states “and without regard”, which introduces an unnecessary extra hurdle. Even if somebody acts heroically, they may well still have some regard for their own safety, but they may go on to ignore that. However, to say that they must have had no regard for their own safety renders the clause, in my view, unworkable.

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

I am grateful to my hon. Friend for giving me the opportunity to clarify the point, and I regret that fact that I clearly have not been able to do so thus far. I refer to the point made by my hon. Friend Bob Stewart when he spoke of someone acting spontaneously. If somebody were to witness a situation which required their assistance—for example, if somebody was drowning and it was necessary to jump in and save them—and they were able to do so, I am minded to say that that person would not say, “Well, I need to take account of the law here. If I were to jump in, is account going to be taken of whether I considered this dangerous or not?” If somebody is capable of saving that drowning person, they will jump in and save them. The courts will take account of all the facts of the case and I am confident that the present wording is necessary, the courts will take account of everything, and it will not be held against anybody that they may temporarily have considered danger.

Photo of Philip Davies Philip Davies Conservative, Shipley

Will my hon. Friend indulge me one more time?

Photo of Philip Davies Philip Davies Conservative, Shipley

I appear to be speaking in a different language. I clearly cannot get through to the Minister so I will try to phrase my objection in a different way.

Can he give us an example of something that would not be covered that should be covered if the wording ended after the word “danger”? What scenario that he wants included would not be included if the wording stopped at “danger”?

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

My hon. Friend will appreciate that hypothetical examples are somewhat redundant, given that I mentioned earlier the independence of the judiciary, and that it is for the courts to decide on the facts of each case. I cannot stand at the Dispatch Box and predict specific circumstances. It is for the court to take account of the specific facts in a specific case.

We do not consider that the clause will be misinterpreted by the courts or the public as somehow excluding people who did in fact have regard to their own safety or other interests, perhaps in the split second before they dived in, but decided to intervene anyway. Nor do we think that it would interpreted as sending a signal that members of the public should recklessly expose themselves to danger. We think that the wording and intention of the clauses are clear, and, on balance, we do not think that the amendment is necessary. I hope that on the basis of my explanation, the hon. Member for Hammersmith will be persuaded to withdraw the amendment. In the event that he wishes to press amendment 5, which would delete clause 3, I would urge the House to reject it.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I do not know whether it is “Ah, Bisto” or just “Ah”, but thank you, Mr Speaker.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

You should hold your horses, Mr Speaker.

All of us who have practised as lawyers, and my hon. Friend the Minister is one such, have had to pick up a duff brief from time to time, and I am not entirely sure that it is fair to pin upon my hon. Friend the difficulties in which he finds himself in trying to explain this Bill. I was rude enough about it on Second Reading, and my hon. Friend was gracious enough politely to refer to my concerns. Both he and I were fortunate that I was not on the Committee dealing with the Bill, but it is fortuitous that I happen to be here this afternoon to invite those listening to, or reading the debate in due course, to read into this brief set of remarks—for the second time when I speak, I notice my right hon. Friend the Secretary of State finds it convenient to leave the Chamber, but there we are—what I said on Second Reading, because I do not think anything has been done to the Bill since Second Reading to alter my mind about it. I do not take a trade union view. I do not take a cataclysmic view of the sort expressed by the Opposition spokesman that this is a Bill designed to undermine workers’ rights, or whatever it may be. I just think that it is a particularly silly piece of legislation. If I am to be rude, I might just briefly explain why.

I can understand that clauses 2 to 4 provide the basis upon which the court exercises its consideration in clause 1. So when considering a claim that a person was negligent or in breach of a statutory duty, it can take into account, or, as it says in the Bill, “have regard to” what is set out in clauses 2, 3 and 4. But I am not at all sure, and I wish I was in a position to be convinced by my hon. Friend, that were a court to have regard, as it is required to by the legislation, that it would be in a better position than that of a court dealing with the case now, given the state of the common law and the existing statutory provisions.

Clause 2—I speak generally to the amendments—invites the court to have regard to whether the person, presumably the defendant,

“was acting for the benefit of society or any of its members.”

I would be interested to know whether that is a matter of law or a matter of fact. Sometimes a judge is required to rule as a matter of law that something is or is not in the public interest. Sometimes that decision can be informed by evidence, but by and large it is a matter of law on which the judge is required to make a decision. I appreciate that we are dealing here with judge alone cases; we are not dealing with judges and juries. But the judge will have to separate his or her mind into the fact-finding part of his brain and the law-deciding part of his brain. It is not difficult, but it has to be done. If we are to be clear about what the Bill is meant to do, we need to know whether a benefit of society or any of its members is a matter of law or evidence. Again, how does that really affect the current state of the law?

Clause 3 states that the court must also have regard to

“whether the person, in carrying out the activity in the course of which the negligence or breach of statutory duty took place, demonstrated a generally responsible approach towards protecting the safety or other interests of others.”

We heard a degree of teasing from the Opposition about the “generally responsible approach”, but I am afraid that the issue is a bit too serious for teasing. I want to know—it is not clear—whether evidence of that responsible approach is to be garnered from one’s lifetime as a member of a fire service or ambulance service, or as an individual, a school teacher or whatever it might be, or by and large from the occasion on which the negligence is alleged to have taken place.

I can well understand that there will be such cases. The Cheshire fire service hose pipe case is almost beyond parody—as my hon. Friend the Minister mentioned it, I can only assume that it is a real case—but I cannot believe that it got beyond the issuing of the county court summons or the High Court proceedings before somebody struck it out. That is what the courts do: if they see a vexatious, frivolous or wholly unmeritorious claim, they strike it out. We do not need the might of the Social Action, Responsibility and Heroism Bill to deal with that. Again, I ask the Minister whether a “generally responsible approach” is to be decided as a matter of law or a matter of fact.

Should someone—an individual or organisation—who has an otherwise meritorious claim lose out against an otherwise negligent defendant simply because on one occasion they were woefully negligent, despite showing a generally responsible approach for 20 years? Let us imagine that an emergency service dug a trench across a highway in order to lay a pipe or cable to assist with protecting the safety or interests of others. Let us also imagine that on this occasion—the first since it started doing good works—it stupidly forgot to put up lights and warning signs, which meant that I—a member of society, with interests—rode my bicycle into the trench and suffered grievous personal injuries. Because the defendant has generally been responsible, would I be unable to recover damages for my injuries and therefore have to fall upon the state as a welfare beneficiary, or have I misunderstood what the Bill is trying to do? I would really like to know.

Clause 4 states:

“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”.

I make my preliminary point again: is an act of heroism something that is found by the judge as a matter of law, or is it a matter of fact that could change from one set of facts to another? I agree with my hon. Friend Philip Davies and, it pains me to say so—[Laughter.]No, it does not pain me to agree with my hon. Friend—I do that with relish—but it pains me to agree with our political opponents across the Floor, because I am yet to hear a coherent explanation for the use of the words in the clause

“and without regard to the person’s own safety or other interests.”

I think that my hon. Friend the Minister said it does not make any difference. Well, if that is the case, then do not stick it in. We are making black letter law, and we should not scribble down the first thing that comes into our heads because it makes us all feel better about ourselves.

We all want people to do dangerous things to assist others. As I said on Second Reading, in some respects it is much braver to take into account one’s own safety and yet then to go on and do the rescuing. If I am diving into the river above the weir, I will think that is not a very sensible thing do, but none the less a child is drowning, and so I go in. Does the court have a different answer to the question if I am a barely sentient creature but can none the less see that a child is drowning and therefore go in?

I really do think that the courts will treat this Bill with derision—I used that word on purpose on the previous occasion—unless we are clear, as makers of the law, that we are doing something to improve the situation in an intellectually sustainable and coherent way. I sincerely regret the fact that so far this Bill does not do that, although I think that the motive behind it is entirely positive and laudable. I am used to bits of Bills sending messages and signals—albeit that that is an improper use of legislation—because that is what we do nowadays. We do not think about what is in the legislation; we just think about the flags we are running the flagpole in order to send a message.

I urge the Minister, between now and the arrival of this Bill—

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Not quite that.

Between now and the Bill’s arrival in the other place, I urge Ministers and the very bright lawyers and policy assistants at the Ministry of Justice to have another think about it. At the moment, it is a silly Bill, and I do not like being party to the passing of silly legislation, no matter how well motivated it is. Having said all that, I apologise to my hon. Friend the Minister because he is a decent, honest and great Justice Minister; it is just his bad luck that he was holding the parcel when the music stopped.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I will take one of the hints from Government Members—I am not going to encourage more than one vote in relation to these matters. I do not think I can improve on what Sir Edward Garnier has said, very gently, but very persuasively and firmly, about this Bill. I can see from the Minister’s demeanour that he is as embarrassed by the Bill as almost everybody else in the House.

I do not know whether the Minister has had an opportunity to look at the Law Society’s briefing, and nor do I know whether that briefing is a retaliation for his slightly ill-tempered treatment of the Law Society witnesses in Committee, but it puts the icing on the cake of what we have heard from the hon. and learned Gentleman. It points out that the Bill will impact not only on the matters that we have been discussing but

“on the selling of financial products, on the rights of children in care, on property transactions, on insurance transactions; indeed, an endless list that will include every sector of industry, every area of public activity and every kind of personal interaction outside marriage and criminality.”

It raises the issue of

“how evidence of heroic state of mind will be demonstrated.”

It says that the Bill

“seeks to influence judicial decision-making which the Society believes is inherently wrong.”

Those are very trenchant and well-made criticisms of the Bill.

I am afraid that the more one examines the Bill, the more it seems, notwithstanding the amendments we have tabled, that it is almost irreparable—that it is, as the hon. and learned Member for Harborough said, a silly Bill that it would be better to strangle before it gets on to the statute book.

Photo of Karl Turner Karl Turner Opposition Assistant Whip (Commons)

Is not this shambles of a silly Bill a good example of why the person holding the office of Lord Chancellor should be legally trained?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am not going to go down that route today. The Lord Chancellor does not often grace the House with his presence on Justice Bills any more, or take part in these debates, so it is almost as though he has absented himself from the legal world entirely. We wish him good luck with his future career, whatever discipline he chooses next to address.

I take comfort from the Law Society’s belief that

“the Bill has been poorly drafted and will not prevent meritorious claims being made and won where, in any scenario, negligence and/or breach of statutory duty has been proved.”

The Opposition and, I think, the hon. and learned Member for Harborough are of the view that the Bill will be treated with disdain and polite ignorance by the courts and therefore we do not need to fret too much about it.

I do not intend to press amendments 2, 3, 4 or 6 to a vote. However, because we believe that clause 3—in its intent, if not in its execution—is a harmful, misleading and rather spiteful little clause designed to further attack provisions for health and safety at work, we will press amendment 5 to a vote. On that basis, I beg to ask leave to withdraw amendment 2.

Amendment, by leave, withdrawn.

Amendment proposed: 5, page 1, line 9, leave out Clause 3.—(Mr Slaughter.)

Question put, That the amendment be made.

The House divided:

Ayes 145, Noes 260.

Division number 59 Social Action, Responsibility and Heroism Bill — Clause 3 — Responsibility

Aye: 145 MPs

No: 260 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Third Reading

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice 4:55 pm, 20th October 2014

I beg to move, That the Bill be now read the Third time.

I thank all hon. Members who served in Committee, and those who have spoken on Report. It has been an interesting and lively debate, although there has been disagreement at times. I also say a big thank you to members of the Bill team and to the Clerks for their advice and support throughout, which have been much appreciated.

Although this is a short Bill, its three substantive clauses are nevertheless important. As I said earlier, the responsibility clause will reassure ordinary hard-working people who have adopted a generally responsible approach towards the safety of others during the course of an activity that the courts will always consider the context of their actions in the event that something goes wrong and they are sued.

We do not want people who try to do the right thing to worry constantly that somebody will take them to court. My right hon. Friend the Justice Secretary has been clear from the outset that he wants to reassure owners of small businesses and other employers who live in fear that an opportunistic or disgruntled member of staff may bring an unfounded negligence claim at the drop of a hat. In such circumstances, we hope that the Bill will give responsible employers greater confidence that there is no need to worry about defending themselves in court.

This is not just about protecting employers from negligence claims brought by employees, and in Committee we heard worrying examples of how the compensation culture can affect other organisations. As I mentioned on Report, the Cheshire fire and rescue service talked about members of the public bringing claims after they had tripped over fire-hoses in broad daylight, ignoring the flashing lights and liveried firefighters who were attending the scene of an emergency. It cannot be right that unjustified claims are brought against members of our emergency services who are doing their best in difficult conditions to save the lives of others. The Campaign for Adventure also warned that a litigious climate can produce a culture of fear that inhibits innovation, exploration, learning and altruism. We are committed to defeating that culture of fear.

The Bill will help all those hard-working individuals, organisations and small businesses who do the right thing and adopt a responsible approach towards the safety of others in the course of an activity by ensuring that that is taken into account by the court in the event of a claim. It will help to discourage speculative and opportunistic claims, and give confidence to responsible employers—and others—to resist them.

The social action clause will help to foster an environment of civic-mindedness and promote volunteering by reassuring those who make a positive contribution to society that the law will be on their side in the unlikely event that they are sued. Members of the House might recall that the coalition agreement included a commitment to

“take a range of measures to encourage volunteering and involvement in social action.”

That is precisely what we have been doing through the many initiatives that we have backed to increase participation in civil society, and I am glad that the proportion of people volunteering is steadily rising. The Bill will build on the progress we have already made by tackling the perception of the compensation culture, which can influence the willingness of people to volunteer. We know that worries about liability remain a real issue for some would-be volunteers. In his evidence to the Bill Committee, Dr Justin Davis Smith of the National Council for Voluntary Organisations confirmed that the fear of being sued prevents

“a significant proportion of people getting involved”.––[Official Report, Social Action, Responsibility and Heroism Public Bill Committee, 4 September 2014; c. 11, Q14.]

We hope that the social action clause will go some way to allaying the fears of people who are deterred from getting involved. Parliament has a significant role to play in highlighting what is valued in society. The Bill seeks to deliver a positive message. It is a message that social action is desirable, a message that responsible behaviour will be recognised, and a message that the law is on the side of those who undertake socially beneficial activities.

The final limb of the Bill, on heroism, addresses another key area of concern. Unfortunately, often people are unwilling to intervene in emergencies because they are worried they might be sued and ordered to pay damages if they try to help. At previous stages of the Bill we heard examples of such behaviour, both from Members and from those giving evidence to the Bill Committee. The Bill therefore seeks to address such concerns by reassuring the public that if they act heroically by selflessly intervening to provide assistance in an emergency, that will be taken into account by the courts should a claim of negligence be brought against them.

As the examples I have given demonstrate, the Bill applies to a wide range of situations and emphasises that the actions of those who seek to serve their communities are valued by the law. It will be relevant to those who act for the benefit of society by engaging in organised voluntary activities, or to those who perform acts of kindness for individual members of the community, such as assisting an elderly neighbour with day-to-day tasks. It will be relevant to those who demonstrate a generally responsible approach to the safety of others, whether in the work environment or in other contexts, and to those who selflessly assist others in emergencies. All of those people will be able to rest assured that full account will be taken of the context of their actions, should something go wrong and they are sued.

I emphasise again that the Bill does not confer immunity from civil liability for those whose actions fall within the scope of the Bill. Those who are injured by negligence will continue to have access to legal redress, and the Bill will not remove the court’s ability to do justice in an individual case. Courts will continue to be able to consider all the facts of an individual case, and nothing in the Bill will prevent a person from being found negligent if the circumstances of the case warrant it.

There has been some criticism of the Bill, particularly from members of the legal profession. I want to make it absolutely clear that this is not a Bill aimed at pleasing lawyers. It is a Bill that gives support and reassurance to ordinary people who act responsibly and for the benefit of society. The Bill adopts a fair and sensible approach, an approach that allays the fears of those who wish to undertake socially beneficial action, reassures organisations and individuals that a responsible approach to safety is recognised, and encourages a culture of altruism, not one of compensation. I commend the Bill to the House.

Photo of Sadiq Khan Sadiq Khan Shadow Minister (London), Shadow Lord Chancellor and Shadow Secretary of State for Justice, Shadow Lord Chancellor and Shadow Secretary of State for Justice 5:03 pm, 20th October 2014

I, too, thank all those involved in the passage of the Bill through this House. I will keep my comments, like the Bill, short. Of course we all want to see even more people volunteering. We all want even more social action. We all want even more heroism from the great British public. The Bill, however, will not be the reason for any of that happening.

The Bill received great fanfare from the Justice Secretary. When it was first unveiled, he trumpeted to the press how he would slay “the ’ealth and safety culture”—his dropped “h”, not mine. The media were fed grand promises that the Bill would rid us of the compensation culture, but the reality set in almost straight away. It soon became obvious that the Bill would do none of the things the Justice Secretary claimed it would do. It was soon plain for all to see that it was simply a big public relations stunt. This was squarely in the “spin first, think through the details later” category of legislation.

Those who knew their stuff were quick to round on the Bill. For many, including some of the Government’s own advisers, there is simply no evidence of a health and safety or compensation culture. The Justice Secretary is developing a habit of ignoring, or not even seeking, legal advice on his pet projects, and sometimes he even shoots the messenger. The former Attorney-General, Mr Grieve, advised that the Bill was “utter tosh”—another reason, no doubt, why he was sacked at the last reshuffle.

The Justice Secretary needs to know that any expert—solicitor, barrister or anybody else—worth their salt would have told him that his Bill would have little if any impact on the health and safety or compensation culture. That is precisely what happened when the Bill had its Second Reading, when the Government could not muster a single Member to make a speech in favour of it. The only Government Member who did speak was Sir Edward Garnier, the former Solicitor-General, who is in his place. On Second Reading, he said:

“I have a horrible suspicion that if the Bill becomes an Act as it is currently drafted, it will be the subject of derision and confusion, or that even if that does not happen, it will fall into disuse.”—[Hansard, 21 July 2014; Vol. 584, c. 1204.]

Today, I think he called it a silly piece of legislation, and I am sure he will be speaking shortly. In Committee, the expert witnesses whom the Government invited to give evidence in support of the Bill saw no benefit in attending, and some even made it clear why there was no point: the Bill would make no difference.

The Bill will change little, but we will not oppose it today. We tried in Committee to make something of it, and it will now fall to the other place to attempt to give it purpose, but with prisons in crisis, probation in meltdown and access to justice under threat, it was always the wrong priority for a Government devoid of ideas. It exposes the Justice Secretary’s skewed priorities: he got his favourable media hit, and the rest is irrelevant. This treats the House with utter disrespect. Precious legislative time that could have gone on meaningful measures to change people’s lives for the better has been wasted. Nevertheless, he will receive one major accolade: his Bill will join that select club of the most useless pieces of legislation ever—not an honour of which to be proud.

Question put and agreed to.

Bill accordingly read the Third time and passed.