Social Action, Responsibility and Heroism Bill

Debate between Lord Pannick and Earl Attlee

Tuesday 18th November 2014 Lords Chamber

[Earl Attlee]

My Lords, I shall also speak to my Amendments 12 and 14. I have tabled these amendments on the basis that we will have to send back to another place something that actually works.

At Second Reading many noble Lords observed that, for a person to benefit from the heroism provision in Clause 4, they must act without regard to the person’s own safety or other interests. That would mean that if I intervened in an emergency, and I undertook a proper dynamic risk assessment and eliminated all avoidable and non-necessary risk to myself—and in doing so probably to anyone else—I would get no protection from the Bill. On the other hand, an imprudent rescuer would benefit from Clause 4, assuming for the moment that as drafted it changes the law.

Amendment 12 is my substantive amendment, which removes the offending words and changes the drafting to read: “to assist an individual in danger and without acting perversely”. The Committee will be aware that the noble Lord, Lord Aberdare, has an amendment that has a similar effect to mine, and I anticipate that he will go into greater detail about the problems with the need for the rescuer to act without regard to his own safety.

Amendment 14 defines what is meant by “acting perversely”. I fully accept that the courts might not need the benefit of this amendment and, if it or something similar does not find favour with the Committee, that will not be a surprise to me. I understand that my words, in the circumstances, would mean that the level of skill, knowledge, experience and training enjoyed by the rescuer would be taken into consideration by the courts—and in any case it already is.

I hope that by this stage of the Committee we will understand whether the Bill changes the law, but I myself am still not clear. I am sure that the noble Lord, Lord Pannick, will tell the Committee that my amendment would change the law and the effect of the Bill. If it does, I am sure that it can do so only very slightly. As the Committee knows perfectly well, and as I have always understood, the courts have never made an unhelpful judgment in that area of law. However, as I indicated at Second Reading, the fear of legal action or, as the Minister put it, an imperfect understanding of the law causes the mischief.

It would be very helpful if some noble and learned Lord or the Minister could describe to the Committee a situation in which the effect of my amendment would be to deny someone compensation for negligence when they would otherwise have secured it. I suspect that the Minister himself is struggling to determine whether the Bill is supposed to change the law or not. By now the Committee seems to have the view that the Bill makes no significant difference to the law apart from, possibly, Clause 3. However, if a first aid instructor could have the future SARAH Act confined to one PowerPoint slide, that could make a practical and beneficial difference. That is because, as the Minister pointed out during our debate on Amendment 2, the Bill has deliberately been designed to be comprehensible.

I suggest that the Committee cannot tolerate a provision in the Bill where an imprudent person enjoys greater protection than a person who has taken steps to avoid unnecessary risks. I am relaxed if the amendment in the name of the noble Lord, Lord Aberdare, finds greater favour with the Committee than my amendment, although his amendment may have the difficulty that it does not change the law at all. I would love to know if we were supposed to be changing the law or not.

Clause 4 is the most useful clause. I certainly have no entrenched position, but by Report we will need to have worked out what we can do to make this clause and the Bill do what they say on the tin. I beg to move.

[Lord Pannick]

My Lords, Amendment 10 is in my name and in the name of the noble Lord, Lord Beecham. It would remove the final words of Clause 4:

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

The inclusion of those words frustrates the purpose of Clause 4 for the reasons already given by the noble Earl, Lord Attlee. Those final words suggest that if I am thinking of acting heroically by jumping in the lake to save the drowning victim, Clause 4 will not protect me if I have regard to my own safety or other interests, perhaps by taking off my valuable watch before I jump in or, if we are to follow the Government’s reasoning as regards Clause 4, by consulting my solicitor. Surely the hero deserves protection whether he or she jumps in “without regard to” their own safety or with regard to their own safety. What matters is that they jump in to save the victim. Clause 4, as drafted, protects the instinctive hero but not the thoughtful hero, and that distinction is entirely unjustified.

Amendment 10, which again is designed to be constructive, would remove that arbitrary distinction from Clause 4. However, I cannot agree with the noble Earl, Lord Attlee, that the law of negligence in this area should be replaced by a test of perversity, which is a test far more favourable to the defendant. He asked for views from Members of the Committee as to whether his amendment would change the law; it undoubtedly would. I anticipate that we will take different views on the merits of that change, but to introduce a test of perversity would be a substantial change.

[Earl Attlee]

My Lords, would the noble Lord be able to illustrate to the Committee how that difference would work—a case where someone would be protected, and someone else would not? That would be very helpful to the Committee.

[Lord Pannick]

At the moment the court assesses whether in all the circumstances the defendant has acted with reasonable care, and the court will take account, as it will under the Bill, of whether in all the circumstances, including that of heroism, the defendant has acted reasonably. However, that is a very different test from a test of perversity. It will not help the Committee to try to identify particular factual circumstances, but I can tell the noble Earl that there is a very real difference between a test of reasonable care and a test of whether the defendant has acted perversely—in other words, has taken leave of his or her senses.

I have also indicated my objection to Clause 4 standing part of the Bill; that is part of this group of amendments. The objections to Clause 2 standing part of the Bill, which we debated earlier this afternoon, are equally applicable to Clause 4, and I will certainly not repeat all those points. However, there is an additional, specific reason why Clause 4 should not stand part of the Bill. The simple reason is that it adds absolutely nothing to Clause 2. I cannot envisage any case in which a person is acting heroically for the purposes of Clause 4 which is not also a case where that person is protected by Clause 2 as currently drafted. If you act heroically for the purposes of Clause 4 you act,

“for the benefit of society or any of its members”,

for the purposes of Clause 2. Does the Minister agree with that analysis and, if not, can he please give the Committee some explanation of the sort of circumstances that potentially come within Clause 4 that would nevertheless be outside Clause 2?

Localism Bill

Debate between Lord Pannick and Earl Attlee

Monday 31st October 2011 Lords Chamber

[Lord Pannick]

I am very grateful to noble Lords who have spoken in this fascinating debate and to the Minister for his detailed response. I shall respond briefly, attempting to avoid any indication of exacting purity that may offend the noble Lord, Lord True, or indeed any other form of reprehensible purity on this matter.

The Minister indicated that there is nothing wrong with the common law rules, and I respectfully agree with him. The problem, the Minister said, is the erroneous advice that is being given to local councillors up and down the land. The problem with that analysis is that, if the advice is the erroneous advice, we should deal with that advice. Let us not amend the common law in a way that changes the current position—and changes it by excluding from relevance the legal material that can demonstrate that there is unlawful predetermination.

[Earl Attlee]

May I explain the advantage of Clause 25 and the way that it is drafted? If I was a councillor and engaging, as a layman, with officials who were giving me advice, I would be able to produce the words in Clause 25 and say, “It says here that I can express a view”, and there would be very little that officials could do to counteract that.

[Lord Pannick]

I understand the point and am grateful to the Minister. However, the clause introduces clarity by amending the common law, which the Minister is concerned to maintain. The clause does not maintain the existing common law rules, which the Minister considers entirely adequate. The clause excludes from consideration anything that is said or done prior to the council meeting at which the issue is to be discussed, however extreme the previous statement may be. I entirely accept that what the councillor said prior to the council meeting may not be determinative of whether there is unlawful predetermination, but it must be relevant. That is the objection to Clause 25: it purports, in the Minister’s words, to restate the common law, which the Minister regards as entirely appropriate and unexceptionable. What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding.

Real concern was expressed in this debate that it is absolutely vital that local councillors should be able to express their views on matters powerfully and strongly if they wish. The noble Baroness, Lady Eaton, and the noble Lords, Lord True and Lord Greaves, made this point. I entirely agree with them that that is the common law position. The cases make it absolutely clear that local councillors deciding any matter are not impartial in the sense required of a judge; they have political allegiances, their politics involve policies and they are entitled to express their views—of course they are. The case of Lewis v Redcar and Cleveland Borough Council in 2009, covered from page 83 of Volume 1 of the Weekly Law Reports, is the leading Court of Appeal judgment. It says that any local councillor who expresses his views powerfully and strongly on any view is not guilty of unlawful predetermination so long as he is prepared to keep an open mind when he goes to the council meeting.

The noble Lord, Lord Sewel, and the noble Lord, Lord Snape, asked for reassurance in relation to the role of party groups and party whips in local government. That, too, has been considered by the courts. In the same case of Lewis v Redcar and Cleveland Borough Council, the Court of Appeal approved an earlier judgment in 1985 by the noble and learned Lord, Lord Woolf—then Mr Justice Woolf—where he said:

“I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice”.

Identity Documents Bill

Debate between Lord Pannick and Earl Attlee

Tuesday 21st December 2010 Lords Chamber

[Lord Pannick]

I am very grateful to the noble Baroness but she really has not answered the substance of the concern. I suggest that the only way she can do that is by telling the House whether or not the law officers have been consulted. It is a matter for the House what step to take but I suggest to the noble Baroness that the appropriate step for it to take is to adjourn further consideration of this matter until she is able at least to assure it that the concerns that have been expressed by a number of noble Lords have been considered by the law officers. I entirely accept that there is no obligation on the Government to tell the House what the advice of law officers is but it must be assured that they have been consulted on this matter. Therefore, I ask the noble Baroness to accept that the appropriate step is for further consideration to be adjourned.

[Earl Attlee]

I think that it is appropriate for the Minister to carry on with the rest of her speech, answer the other questions that noble Lords have asked and wait to see whether further inspiration arrives.