Social Action, Responsibility and Heroism Bill

Lord Hope of Craighead Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I spoke in Committee in support of the noble and learned Lord, Lord Lloyd, and I am not going to repeat what I said then. I might take issue with the noble Lord, Lord Hodgson, about this matter being discussed in the silent halls of the Middle Temple. If you give ordinary police officers, firemen and ambulance crews two sets of words about the same thing, you are going to cause a lot of confusion a long way before it gets to the Middle Temple.

In the gap since we spoke about this in Committee, this law has achieved something that I have not seen in this House before. I know I have not been here that long, but I have never heard of a particular statute being used as an example in another discussion altogether when it has not even been passed. In the debate put forward on 4 December by the noble Lord, Lord Foulkes of Cumnock, about the procedures and practices of the House, this Bill got not just one but two mentions. It was mentioned by the noble Lord, Lord Butler, who is in his place next to me, and by the noble Lord, Lord Dykes. The noble Lord, Lord Butler, said that,

“we might be saved from legislation such as the absurd Social Action, Responsibility and Heroism Bill”.—[Official Report, 4/12/14; col. 1495.]

Later, the Bill was described as,

“a badly drafted, silly Bill that is all to do with ‘manifesto-itis’ rather than any deep legislative urge on behalf of the Executive”.—[Official Report, 4/12/14; col. 1499.]

I do not think we should proceed with this matter.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I may return briefly to the point that I made in Committee, which is directed to the point made by the noble Lord, Lord Hodgson, about the solicitor advising—no doubt—an employer. The problem to which I drew attention was where somebody such as a fireman, police officer or some other person in the emergency services wanted to take the kind of action for the benefit of society that is talked about in Clause 2, but his superior officers said, “No, you can’t, because if you do that, my organisation is liable to be sued”.

My point is that Section 1 of the previous statute deals with outcomes and separates the outcome from the person who is being sued. The problem with this Bill is that it links irrevocably and inextricably the person who is being sued with the person who is acting. With great respect to the noble and learned Lord, Lord Lloyd of Berwick, I do not think that this clause and the section deal with precisely the same thing. I think that this is a much narrower clause, dealing with a particular part of the subject. Therefore, it just adds to confusion when we have an existing piece of legislation which covers all the aspects and is perfectly serviceable to then come along with something which covers only part of it.

When the Minister replies, I hope that he will say why the Government have not taken the opportunity to broaden this clause so that it covers precisely the same ground as the existing legislation, because to have two pieces of legislation, one half-baked and one dealing with the whole thing, just adds to confusion. It is a great shame to be invited to pass a measure of that kind.

[Lord Elystan-Morgan (CB)]

My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.

There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.

--- Later in debate ---

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

My Lords, I, too, support this amendment. The Bill as a whole is manifestly directed—all the earlier debates have indicated this—to encouraging people to volunteer and take part in generally beneficial activities. As the noble Lord, Lord Beecham, made plain, this clause would apply if you have a claim against your accountant. Perhaps he is a wonderful accountant and has looked after everybody else enormously skilfully over the years, but on this particular occasion when he is looking after your affairs, Homer nods, falls fast asleep and costs you an enormous amount of money, for whatever reason—perhaps he was going through a messy divorce at the time. He is insured. Is it really to be suggested that what he has done for everybody else is relevant and can deprive you of your claim? It is absurd.

[Lord Hope of Craighead]

My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.

[Lord Faulks]

My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.

The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.

The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.

As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.

In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.

The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.

--- Later in debate ---

[Lord Faulks]

I respectfully disagree with that interpretation because it is concerned with the activity in question,

“in the course of which the alleged negligence or breach of statutory duty occurred”.

It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.

I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—

[Lord Hope of Craighead]

My Lords—

[Lord Faulks]

Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.

[Lord Hope of Craighead]

I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:

“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.

Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.

[Lord Faulks]

Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,

“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.

It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,

“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,

the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.

I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.