Social Action, Responsibility and Heroism Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 4th November 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, there is much to be said against this Bill and much already has been said against it. Either it is intended and apt to change the present law or it is not. Despite the Minister’s valiant and, as ever, beguiling advocacy, I find it difficult to see how a court could find, in any of these clauses, anything which would lead it to a different conclusion on the facts of a case. I await an explanation of how that could arise.

However, if it is intended to change the law, I respectfully submit that that should be made altogether clearer than it is at present. Just what change is it intended to bring about? Is this deemed always to have been the law, or will the Act take effect only from the date of some future conduct, whether that be action or inaction? If it is not intended to change the law—if it is intended, rather, to send out a message—that should be made abundantly clear, too. As the noble and learned Lord, Lord Lloyd, has already suggested, if that is the position, it is not an appropriate use of the legislative process.

There are many legislative initiatives that are worth taking, and the Government are to be applauded for a number of recent ones such as those on FGM, confiscation of criminal assets, and the forthcoming slavery and trafficking Bill. By contrast, this Bill would essentially be a waste of legislative time and worse because, inevitably, it would bring with it unintended consequences, one of which would be the needless future waste of court time and legal expense in debating what, if any, effect it is intended to have.

One distinct curiosity about the Bill is that in essence it mirrors what Parliament enacted eight years ago in Section 1 of the Compensation Act 2006, which has already been mentioned. I differ from my noble and learned friend Lord Lloyd on one aspect of this because, frankly, it seems to me that the change in this proposed legislation from “may” in 2006 to “must” now will actually make no difference whatever. The Bill states that the court must have regard in all circumstances to these considerations—it does already. If it is of simply no relevance, it just discards that regard which it has had to them.

As the Explanatory Notes to Section 1 of the 2006 Act say, that section addressed,

“a common misperception, that can lead to a disproportionate fear of litigation and consequent risk-averse behaviour”.

It was intended to reflect,

“the existing law and approach of the courts as expressed in recent judgments of the higher courts”—

most notably, perhaps, the judgment of the noble and learned Lord, Lord Hoffman, in the well known case of Tomlinson v Congleton Borough Council in 2004, 1AC 46 at 82, where he stressed the importance of,

“the social value of the activity which gives rise to the risk”.

It is hardly surprising that in those circumstances Section 1 of the 2006 Act, which of course was enacted by a Government of a different political colour, has been recognised by the courts to have been of no help whatever. As Lady Justice Smith put it in 2011,

“section 1 of the Compensation Act 2006 did not add anything to the common law position”,

echoing what Lord Justice Jackson had said the previous year:

“The principle enshrined in section 1 of the Compensation Act 2006 has always been part of the common law”.

The other striking fact about Section 1 of the 2006 Act—a shorter and simpler provision than we have here but, frankly, with the same essential effect—is the length of time it occupied this House in the course of enactment. I have here a substantial sheaf of Hansard reports dealing just with Clause 1—extracts from Second Reading, three days in Grand Committee and Report—and, frankly, much the same arguments were being advanced then about that provision as are now being made about these proposed new provisions.

I will confine myself to quoting just a single passage, from the contribution of the noble Viscount, Lord Eccles, who said:

“Clause 1 was discussed for more than seven hours in Grand Committee, which may give some indication of the way in which it might be discussed in the courts in the land in future—at unreasonable expense, I suggest. The reason for the length of the debate was partly the question of what the clause meant and partly an attempt to change and interpret the clause to provide legal cover for the promotion of desirable activities. Thus desirable activities would take place with greater frequency. This discussion ended in some frustration, because all the attempts to find a legal way forward were unavailing. As the Minister said to us at the time, the Bill was trying not to amend the law but to take away doubt”.—[Official Report, 7/3/06; col. 648.]

He continued by suggesting that it was likely to introduce more doubt than it would remove, and that it would be unwise to agree it. Indeed, it was suggested that it should not stand as part of—in that case—the 2006 Bill, which of course contained other provisions.

Of course, it did stand part and it was enacted—although, as I have indicated, without in any way affecting the course of the law. Now it is proposed to superimpose upon our common law yet another such provision. Are we, one cannot help wondering, perhaps cynically, to expect, a few years down the line, a third Bill to demonstrate yet again some new Government’s keenness to underline that volunteering is a good idea and that compensation would not be too readily ordered when it would be discouraged?

With all that said, I shall not be voting in support of the amendment of the noble and learned Lord, Lord Lloyd. It is perhaps a nuclear option which should come into play only on the rarest occasions—and this Bill is not, as has already been said, worthy of it. Indeed, in the 2006 Act it could not have been used because, as I said, other provisions were included. Perhaps that should give one pause for thought, should it not? You have only to add some other coherent provision and you defeat this nuclear option—so I shall not be supporting it. Assuming, however, that this Bill survives the amendment, is read a second time and goes ahead, then, with respect, it will need full dissection and drastic, radical amendment. For my part, I would, reluctantly, give it a Second Reading.