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Clause 3 — Responsibility

Part of Social Action, Responsibility and Heroism Bill – in the House of Commons at 4:15 pm on 20th October 2014.

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Photo of Edward Garnier Edward Garnier Conservative, Harborough 4:15 pm, 20th October 2014

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—