Social Action, Responsibility and Heroism Bill

Lord Garnier Excerpts

Monday 20th October 2014 Commons Chamber

[Mr Vara]

As the hon. Member for Hammersmith (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.

[Sir Edward Garnier (Harborough) (Con)]

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

--- Later in debate ---

[Mr Vara]

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 be 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.

[Sir Edward Garnier]

rose—

[Mr Speaker]

Ah, Sir Edward Garnier.

[Sir Edward Garnier]

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

[Mr Speaker]

Ah, in a state of eager anticipation.

[Sir Edward Garnier]

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.

--- Later in debate ---

[Karl Turner]

Bin it!

[Sir Edward Garnier]

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.

[Mr Slaughter]

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 the hon. and learned Member for Harborough (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, is 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 neither 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.