Social Action, Responsibility and Heroism Bill

Lord Lloyd of Berwick Excerpts

Monday 15th December 2014 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

1: Clause 2, leave out Clause 2

[Lord Lloyd of Berwick (CB)]

My Lords, there are many reasons why Clause 2 should not stand part of the Bill, but to my mind the main objection is also the simplest: it serves no useful purpose. The mischief at which the clause is aimed is already covered by existing law. The mischief in question, as defined by the Lord Chancellor in the other place, is that volunteers are being deterred from volunteering by fear of being sued for negligence. That is the very same point specifically covered by Section 1 of the Compensation Act 2006, passed less than eight years ago.

The whole purpose of that section was to encourage people to undertake what the section calls, “desirable activities”. The whole purpose of Clause 2 of the Bill is to encourage people to act,

“for the benefit of society”.

Those are two ways of saying exactly the same thing. Nobody has yet been able to detect any difference between them. Indeed, the Lord Chancellor said that Clause 2 is not intended to change the existing law, so why do we need another piece of legislation covering exactly the same ground now?

The noble Lord, Lord Faulks, accepted that:

“Clause 2 relates to broadly similar territory to that in Section 1 of the Compensation Act”,

but he added that,

“the approach that it takes is different”.—[Official Report, 4/11/2014; col. 1573.]

He did not explain exactly what he meant by the approach being different. When pressed, he said that the 2006 Act had been “ineffective”. However, the only evidence relied on for that assertion—literally the only evidence—was a survey carried out about eight years ago. All it showed was that 47% of a very modest sample, some 300 people at most, said that there was a risk of being sued and that that risk was an issue to be considered. That survey was carried out in 2006-07, before Section 1 of the Compensation Act could possibly have had any effect, so how can it be relied on as showing that Section 1 of the 2006 Act has been ineffective? At the time of that survey, it had not had time to take effect.

A recent report produced by the Joint Committee on Human Rights considered the evidence in support of the Government’s case for fresh legislation in this field. It concluded that the only evidence was almost entirely anecdotal. It said that such evidence was not a sound basis for legislation, and that must surely be right. We now have before us a clause for which there is no evidence of any need covering exactly the same ground as Section 1 of the Compensation Act, which was passed less than eight years ago, and covering the ground already covered by the common law. In negligence cases, judges have always had regard to the matters referred to in Clause 2.

If that was not enough to condemn the clause—although I suggest that it is—the National Council for Voluntary Organisations has recently said that this clause, even if it is to form part of the Bill, will have very little, if any, effect. Indeed, that was the Government’s own case. Paragraph 23 of their impact assessment states that any reduction in claims for negligence will not be substantial.

If, as I suggest, these reasons are nothing like enough to justify the inclusion of this clause, one is driven to ask: what is the real reason the Lord Chancellor is bringing forward this unnecessary clause for our approval? There can be no doubt about the answer to that question, because the Lord Chancellor himself said it over and over again in the other place. The real reason is that the Lord Chancellor wants to send out, as he put it, a strong signal that if people are trying to do the right thing—he used that sort of phraseology over and over again—the law will be on their side. In other words, the justification for including this clause in the Bill is nothing other than a publicity exercise on the part of the Government. If that is the case, and I suggest that it is, it is a flagrant misuse of the legislative process. The purpose of legislation is to make new law or to change existing law so that it can be enforced in the courts. This clause does not purport to do either of those things. It could not be enforced by the court, which is why it will be treated with derision when it comes before the courts—a word that was used by a recent Solicitor-General, Sir Edward Garnier, speaking from the government Benches in the other place. The clause should be rejected on that ground, if none other.

Finally, I should mention points made during the debate in Committee. The noble Lord, Lord Hodgson of Astley Abbotts, who I am glad to see in his place, is in favour of Clause 2. He was chair of the task force which published in 2011 the report Unshackling Good Neighbours. His view is obviously, therefore, entitled to great weight on that ground. I hope, however, that he will forgive me for saying that he did not really answer the point that Clause 2 covers exactly the same ground as Section 1 of the Compensation Act 2006, which should be given much more time to take effect.

On the other hand, the noble Lord, Lord Blair, said that, while he was broadly in sympathy with the Government’s objective, this was, as he put it,

“frankly, a lousy way to do it”.—[Official Report, 18/11/14; col. 404.]

It was smoothing over all the difficulties with words that have very little meaning. The noble and learned Lord, Lord Hope, went further. He was extremely critical of the drafting because of the use of the same word, “person”, in Clauses 2 and 4 to cover two entirely different persons. He said it was a great pity that the Government had not faced up to the real problems in this area. As a result, he said, he was deeply troubled by the clause as it stands.

For all these reasons, I hope the Government will think again before pressing ahead with this unnecessary clause. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the noble and learned Lord was kind enough to say some nice things about my report, and I reciprocate by saying that I have had the pleasure of serving under his chairmanship of various committees, and he has always been a punctilious and perceptive chairman. He is particularly kind in being ready to listen to and appreciate the views of those of us who are not learned in the law.

I hope that he will forgive me, but, once again, I cannot support his proposal this afternoon, and I urge my noble friend on the Front Bench not to do so either. We had a pretty thorough discussion of this issue in Committee on 18 November, and I do not intend to repeat the remarks I made then. As I understand it, and as I understood then, the noble and learned Lord is concerned about interplay between this piece of legislation and the Compensation Act 2006. I understand his desire for legal clarity and legal purity, but I have another objective, and that is of legal connectivity.

The report that I produced for the Government, Unshackling Good Neighbours, to which he kindly referred, looked in some depth at what was inhibiting people from getting involved in society and acting as a trustee, and whether they feared potential legal consequences. We received examples in sufficient numbers, which cannot simply be dismissed as anecdotal—a term that I sometimes feel is somewhat patronising. The noble and learned Lord sought to reassure the House that, if a case came to court, the court would throw it out, would, in his phrase, “have regard for the circumstances”. With respect, he may have overlooked the effect on an individual of the agonising, expensive, lengthy and psychologically depressing process of preparing the case—this against the background that, in the event, the court may not throw the case out.

I continue, therefore, to believe that this legislation sends an important signal—there I agree with the noble and learned Lord. This signal may seem unnecessary in the cool, calm, reflective atmosphere of the Inns of Court, but it has a greater resonance at the coalface of our civil society.

At another level, I am particularly looking forward to hearing the final determination of the Opposition’s position on this issue. The noble Lord, Lord Beecham, is a witty speaker and a very practised politician. He has made some disobliging remarks about the contents of the Bill, but he has so far not moved beyond that point. I suspect that, as a practical politician, in his heart of hearts, he knows that this is an issue that, in the minds of the public, needs addressing, and which this Bill does so address.

Before I conclude, I reiterate one other point that I made in Committee. I do not argue for a single minute that the Bill is a silver bullet as regards encouraging volunteering or greater participation in our society. There is much else to be done besides. Better insurance arrangements are crucial, as is the need to debunk myths about the legal consequences of day-to-day actions, too often assiduously and repeatedly promulgated in the press. However, even if the Bill is not a silver bullet, it is a bullet, and one well worth firing. I hope that my noble friend on the Front Bench will resist the noble and learned Lord this afternoon.

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[Lord Faulks]

I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.

[Lord Lloyd of Berwick]

My Lords, I thank noble Lords who have supported this amendment. I want to say a word about the contribution of the noble and learned Lord, Lord Walker of Gestingthorpe. He said that, as the Bill changes the common law, it ought to have been referred in the first instance to the Law Commission. I entirely agree that from time to time it has not been at all easy to discover what the government case has been, but their final position is that it does not change the common law in any way; it merely confirms what was already the common law and what was included as Section 1 of the Compensation Act 2006. I hope that that answers the noble and learned Lord’s difficulty.

So far as the rest is concerned, I shall say nothing more about the arguments put forward by the noble Lord in answer to the debate. They have already been dealt with very fully. However, I want to say a word about the attitude of the Opposition to the amendment. As I understood it until 2.15 pm this afternoon, the Opposition would be supporting the amendment. That was my clear understanding.

[Lord Beecham]

If the noble and learned Lord understood that, he misunderstood it, and if I have contributed to a misunderstanding, I apologise. It was never the Opposition’s position that we would support the noble and learned Lord. We were considering the position and I tried to contact him unsuccessfully over the weekend. Therefore, we have not resiled from the position that we previously adopted.

[Lord Lloyd of Berwick]

I am quite happy to accept that there must have been a misunderstanding. However, that was certainly my understanding of the position, just as my understanding of the position at Second Reading was that they would be supporting my amendment. I was wrong about that and I am wrong again. However, that still leaves the question of why on earth the Opposition are not supporting the amendment. After all, on the whole, it is the duty of the Opposition to oppose. If they found that they were against something—and I understood them to be against Clauses 2 and 4, just as they are against Clause 3—in the ordinary way they would oppose it.

However, I am wrong about that. The reason given for this seems to me to be entirely incomprehensible. The reason why the Opposition now do not want to oppose Clauses 2 and 4 is that if they did so while opposing Clause 3, that would then have some effect—which I really did not understand—on the attitude of the Lord Chancellor in relation to some other Bill; namely, the Criminal Justice and Courts Bill. That is a wholly irrational ground for an Opposition to act on. I would have thought it their duty, if they are against Clauses 2 and 4, to oppose them. They say, however, that, for reasons which I do not understand, they do not intend to take that view officially. I hope that at least some members of the party which is represented by those on the Opposition Front Bench who take that view will think differently.

[Lord Cormack (Con)]

My Lords, surely my noble and learned friend, as I will call him on this occasion, has heard of the mugwumps, who sat on the fence with their mugs on one side and their wumps on the other.

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[Lord Lloyd of Berwick]

I am not sure that I fully understood. Perhaps I did not wholly hear what the noble Lord said. However, the arguments are now over, and there is really nothing left for it but to take the opinion of the House. I do not fancy for one moment that, in the absence of support from the Opposition on this clause, the amendment will be carried. However, in the interests of doing the right thing—those words which the Lord Chancellor kept on using—I ought to take the opinion of the House, which I now seek to do.

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[Lord Faulks]

My Lords, I turn now to Clause 4 and the amendment we have tabled relating to it. We noted the concerns raised in Committee by the noble Lords, Lord Aberdare and Lord Pannick, and my noble friend Lord Attlee that the current definition of “heroism” could be taken to exclude the actions of trained first aid volunteers. That is because the current clause says that a person acts heroically if he intervenes to help somebody in danger without regard to his own safety or other interests. Organisations such as St John Ambulance and the British Red Cross would always train their volunteers to have regard to the potential risks to themselves and others before intervening.

I had a very constructive meeting with representatives from those organisations after Committee to discuss these matters further, which culminated in the amendment that we are bringing forward today. We agreed that the simplest thing to do would be to remove the final 11 words of the clause. This will put beyond doubt that the clause applies to anybody who intervenes in an emergency to help somebody in danger, regardless of whether they acted entirely spontaneously or weighed up the risks before intervening. What is more, St John Ambulance and the British Red Cross, as leading first aid organisations reaching hundreds of thousands of people a year, have said that if the amendment is agreed they will use the opportunity to encourage more people to come forward to act in emergencies. I am very grateful to them for their offer of assistance, which will help to reassure many new first aid volunteers that they can intervene in emergencies secure in the knowledge that the law will be on their side. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I also have an amendment in this group. It may be convenient if I say what I have to say now. In many ways, Clause 4, which we are now dealing with, is the oddest of these three clauses. As drafted, it was strongly criticised by the Fire Brigades Union, St John Ambulance and the Red Cross, among others. To take the instance of the Fire Brigades Union, the clause goes directly contrary to advice that it has given for many years to people involved in a fire: to get out of the way of the fire as quickly as they can and to stay out. If they intervene to try to rescue somebody, then they are only likely to put in greater danger the firemen, who will have to come to their rescue as well.

This was pointed out as a difficulty—indeed, as a serious objection—in the other place, but no notice was taken of that criticism until at a very late stage in this House, when the noble Lord, Lord Faulks, gave notice of his amendment to leave out the last 11 words of the clause. Leaving out the last 11 words of this clause is undoubtedly a great improvement, but leaving out half a clause to save the rest of a clause is an unusual thing to do. It only demonstrates that the clause, like the rest of the Bill, was never properly thought out in the first place. In Committee I suggested that it looked like a clause drafted on the back of an envelope. I now think that that may be going too far in its favour. It must surely have occurred to someone at some stage that a clause that protects someone who takes no thought for his own safety, but does not protect someone who takes some thought for his own safety—that, as it was put elegantly, as always, by the noble Lord, Lord Pannick,

“protects the instinctive hero but not the thoughtful hero”—[Official Report, 18/11/14; col. 416.]

—is surely inherently ridiculous. Be that as it may, the objection to Clause 4 is essentially the same as that to Clause 2. The substance of Clause 4, as it will stand if the noble Lord’s amendment is accepted, is already covered by Section 1 of the Compensation Act 2006.

It is difficult to imagine a,

“person … acting heroically … to assist an individual in danger”,

who is not by that very act engaged in a “desirable activity” as envisaged by Section 1 of the Compensation Act. If so, this clause adds literally nothing to the existing law. If the noble Lord in his reply can think of a single example where the point I have made is not valid because something would be covered by this clause and not by Section 1 of the Compensation Act, I hope he will tell us. In the mean time, I submit that it adds nothing and should be rejected on that ground. In due course I will move my amendment too.

[Lord Pannick]

My Lords, there is a further reason why Clause 4 is pointless and that is, of course, because it adds nothing to Clause 2. It is very difficult to understand in what circumstances a person is acting heroically in an emergency when they are not also,

“acting for the benefit of society or any of its members”.

Perhaps the Minister can tell the House of a theoretical case that would not fall within Clause 2 that falls within Clause 4. There is no doubt that the removal of the final words of Clause 4 is a distinct improvement. We must be grateful for small mercies.

I have a further concern that when courts have to apply Clause 4 there is ample room for no doubt lengthy debate as to what is meant by “heroically” and “emergency”, neither of which is defined in the Bill.

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[Lord Faulks]

My Lords, for the most part the Government’s amendment has been supported. The noble and learned Lord, Lord Lloyd, says that the fact that we had to remove nearly half the clause, because half of it was not worth while, indicates that the clause really was not worth while. That may not do entire justice to his argument, but we say that we responded to the burden of the argument. We listened to the debate and we consulted St John Ambulance. We certainly do not want to do anything that does not realise the main objective of the Bill, which is to encourage people to volunteer, to assist and to provide, if necessary, emergency assistance.

The Government will no doubt take very much to heart the criticism of the use of language made by the noble and learned Lord, Lord Walker. I explicitly do not promise to make any changes before Third Reading but I undertake to revisit the issue in case any further clarity can be attained by the use of “person” or “individual”.

However, I would say to anyone who is not a lawyer that Clause 4 is pretty clear. It 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 am really not sure that that is a terribly difficult concept to understand. I think that men and women would understand what was meant to be conveyed by that, and it is perfectly reasonable to ask the court to pay regard to it. The noble and learned Lord, Lord Brown, may well be right that judges would take that into account. Certainly most judges would.

However, the outcome of any negligence case, as those of us who have laboured in that particular vineyard will tell the House, is never clear, particularly when there is a very badly injured claimant. Judges sometimes do not sufficiently bear these matters in mind. The court must now “have regard”—that is all we ask—to whether there is heroism as described. We do not believe that heroism needs further definition or examples. We think that judges should be able to recognise it when they see it.

I submit that, while taking on board the criticism of some aspects of the drafting, this very much maligned Bill and this clause serve a sensible, common-sense purpose, and I ask the noble and learned Lord not to press his amendment.

[Lord Lloyd of Berwick]

Before the noble Lord sits down, I wonder whether he would just deal with the principal point made both by myself and by the noble Lord. In what respect does this clause add anything to Clause 2, as it will now stand part of the Bill, or to Section 1 of the Compensation Act 2006? Will he please give us one single example?

[Lord Faulks]

I will give the same answer that I gave in relation to the distinction between the Compensation Act and this Bill, which is that the Bill says that the court “must have regard”. That is a distinction. I said in Committee that there may well be an overlap between Clauses 2 and 4. I do not say that they are wholly distinct; they convey an accumulation of concepts which are readily understood, and a judge may find it possible to bear in mind both Clause 2 and Clause 4. That fact does not mean that Clause 4 cannot, in appropriate circumstances, serve a useful purpose.

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Tabled by

[Lord Lloyd of Berwick]

4: Clause 4, leave out Clause 4

[Lord Lloyd of Berwick]

I am not sure whether I am entitled to say anything more. I do not intend to do so, except to draw attention to the fact that we have not been given any explanation of how Clause 4 adds anything of any utility. However, for reasons best known to themselves, the Official Opposition have decided not to support this amendment. In those circumstances, there is little chance of a result different from that which we had earlier this afternoon. I therefore do not intend to take the opinion of the House.

Amendment 4 not moved.