Social Action, Responsibility and Heroism Bill

Shailesh Vara Excerpts

Monday 20th October 2014 Commons Chamber

[Mr Slaughter]

Indeed. In responding to this amendment in Committee, in flat contradiction to what I have just quoted, the Minister said:

“Nothing in the Bill suggests that it gives immunity from civil liability. It also does not change the standard of care that is generally applicable… The Bill simply requires the court to have regard to certain factors in deciding what steps should have been taken to meet that standard of care in a particular case.” —[Official Report, Social Action, Responsibility and Heroism Public Bill Committee, 9 September 2014; c. 63.]

As was pointed out ad nauseam to the Minister, the doctrine of negligence in common law has been developed not over years but over centuries. Furthermore, there is already guidance in legislation—the Compensation Act 2006 being the obvious example—insofar as it is needed, but generally the courts do not need guidance in considering all the relevant factors. As I said, however, when we come to clause 3, we will perhaps see what the Government’s ulterior motive is.

I do not wish to labour the point; I simply wish to have an answer from the Minister. Will the Bill—clause 3 or any other part—make any difference to how the law of negligence works in the courts? If so, will he indicate how and explain the motivation? If it does not, what is the purpose of the Bill? I await his response.

[The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)]

The introductory comments by the hon. Member for Hammersmith (Mr Slaughter) are typical of his form. When he was talking about my interviews yesterday in the media about abuse, I thought for a moment that he might be referring to some abuse that he had hurled at me during a debate, but he did not go that far.

I appreciate that the purpose of amendment 1 is to clarify that the Bill does not confer immunity from civil liability on any individual or change the standard of care that is relevant in claims involving negligence or breach of statutory duty. I explained to the hon. Gentleman and his colleagues in Committee why I thought such an amendment was not needed, but I am happy to explain our position on this again. As for whether the law has been changed, I will deal with that substantially when we debate clause 3, which is in the second group of amendments for this debate on Report.

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[Sir Bob Russell (Colchester) (LD)]

Does the Minister accept that if first aid was made part of the national curriculum, there would be a whole generation of young people coming through who knew what to do in a road crash, for example? The first rule for those going to assist in a road crash is to ensure that they and others are not put at risk; in other words, they have to safeguard the patient or patients. Does the Minister accept that if first aid was taught as part of the national curriculum, everybody would know that?

[Mr Vara]

It is eminently sensible that everyone should have some education in first aid, but as far as the rule is concerned, I will deal with substantive matters of that sort in the next group of amendments. What I will say now, in a general way, is that there is a change, but there is also a message that the Bill sends out, which I will deal with in due course.

[Karl Turner (Kingston upon Hull East) (Lab)]

I am obliged to the hon. Gentleman for giving way. I wonder whether he could define “heroism”, which is in the title of the Bill. What does it mean? What is the definition?

[Mr Vara]

May I respectfully say to the hon. Gentleman that we are dealing with amendment 1, not heroism, which will be dealt with subsequently—I will be happy to come that—in the second group of amendments?

[Mr Sheerman]

The hon. Gentleman and I have known each other a long time. We are good friends and I have a high regard for him, but for the minority of us present who were not on the Committee, will he give a pithy explanation of the guts of the Bill? What does he think is really at its heart? He would probably go to the barricades for the Bill; and if so, why?

[Mr Vara]

The hon. Gentleman is absolutely right: we are good friends—I hope his Whips will not hold that against him. He made his contribution on Second Reading and he has certainly made his presence felt in this debate, if not in Committee. The Bill outlines a general responsibility, which must be taken into account by the courts. It sends a powerful message to the courts: when somebody is doing the right thing, the courts must take that into account. As for the decision itself, that will be made by the court, given all the circumstances of the case. That will be fact-specific, but the Bill will tell the court that it must take into account those factors.

[Karl Turner]

rose—

[Mr Jim Cunningham (Coventry South) (Lab)]

rose—

[Mr Vara]

I will give way, but I want to answer the question that was put to me. The Compensation Act 2006 has been referred to; indeed, the shadow Chancellor specifically asked on Second Reading what the difference was between this Bill and that Act. There is a very important distinction, which is that the Compensation Act says that the court “may” take into account certain factors; this Bill says that the court “must” take into account certain factors. We do not have to be lawyers to appreciate that there is a fundamental difference between the two.

The other thing that this Bill does is send a powerful message to the members of the public that if they do the right thing, the court will take that into account and they should not be inhibited from doing the right thing in any heroic acts, social activities or whatever.

[Mr Cunningham]

rose—

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[Mr Cunningham]

I am certainly trying, Mr Speaker.

I am not too familiar with this Bill and I was not a member of the Committee that considered it. One thing strikes me, however. Is not the definition of “self-defence” a factor in the issue? In the past, there have been incidents of people defending themselves yet finding themselves on the wrong side of the law. Is that part of the issue?

[Mr Vara]

I am grateful to the hon. Gentleman, but I shall do as guided by Mr Speaker, as self-defence is not an issue I am dealing with in connection with this amendment.

The Bill does not change the relevant standard of care that applies when a court is considering whether somebody has been negligent or has breached a relevant statutory duty. The court will continue to look at what an ordinary and reasonable person should have done in all the circumstances of the case. The Bill simply requires the court to have regard to the factors in the Bill before reaching a decision on liability. It does not tell the court what conclusions to draw or prevent a person from being found negligent if the facts of the case warrant it.

As I said in Committee, if in a finely balanced case the court considers the factors in the Bill and decides that this should tip the balance in favour of a defendant who had been acting for the benefit of society, demonstrating a generally responsible approach towards the safety of others during an activity or intervening to help someone in an emergency, we would welcome that outcome. It will be for the courts to decide how much weight to give these factors on a case-by-case basis, but we do not consider that there is any risk of the clause being misinterpreted by the courts as somehow granting individuals immunity from civil liability or changing the standard of care that is generally applicable. In that light, the amendment is unnecessary, and I hope that the hon. Member for Hammersmith will withdraw it.

[Mr Slaughter]

I shall not press the amendment to the vote; we can continue our discussion in connection with the second group of amendments. Let me tell the Minister, however, that his explanation has continued to go around in ever-decreasing circles. The two points at the heart of the Bill, raised in a number of interventions, are these. First, is the Minister attempting to change the law or not; and, secondly, is he attempting to fetter the discretion of the judiciary? What he said in respect of the distinction he wishes to make between the Compensation Act 2006 and this Bill suggests that he does wish to do that. Section 1 of that Act says “may”, while this Bill says “must”. If the Minister wants to make that distinction, the only explanation must be that he wants to fetter the hands of the judiciary in dealing with these matters, giving rise to the suspicion that it is entirely inappropriate. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3

Responsibility

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[Mr Slaughter]

I assure the hon. Gentleman that I listen carefully to everything he says and give it exactly the due weight it should be given. I am very tempted by the thought that we might push our numbers up by one, but I hope that the Minister may give way on this measure and by the time it emerges from the other place the Bill will be improved at least to that extent.

Clause 3 is quite a dangerous provision. We have not voted against the Bill as a whole, because the Bill on the whole does nothing. Clause 3 will be ineffective if it is passed, but its intention is malevolent. It is harmful to good industrial relations and harmful to health and safety in the workplace, and it is a piece of prejudice that this Government and this Minister should know better than to pursue.

[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?

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[Mr Vara]

I do not know the outcome, but the fact that those people took legal action in the first place is the issue. People should not feel that they can try something on. My hon. and learned Friend is a distinguished lawyer and will probably know what the outcome would be. Perhaps he would like to enlighten the House in that regard.

The issue was not what the outcome was, but that Cheshire fire and rescue service was taken to court in the first place. To those who may still have concerns about the possible effects of the clause, I would emphasise that the provisions do not direct the courts to the conclusion they should reach and will not prevent a finding of negligence or breach of statutory duty where that is warranted. I am confident that the courts will continue to take a common-sense approach to these cases, and will exercise the flexibility that the clause gives them, so that in each case they reach a just decision, in the light of all the circumstances.

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[Andy McDonald]

What parameters is the Minister setting for courts by including such a woolly, vague and indeterminate word as “generally”? What if someone says, “A week last Tuesday, I behaved really properly, but on this occasion, I behaved like a nutcase”? Which one is it? This is a ridiculous way to go about legislating.

[Mr Vara]

It is not for me or this place to dictate to the courts the decisions that they should come to. It is for us to make the law, and for the courts to take account of all the facts that may apply to that case and come to their decision. That is how the constitution of this country has operated for centuries, and will continue to, as far as we are concerned. The clause says that if a person carries out an activity in a way that demonstrates

“a generally responsible approach towards protecting the safety…of others”,

and, despite their best efforts, something goes wrong and somebody is injured, the court should take full account of the circumstances. That represents a change, in that case law does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. I believe that it is a desirable and beneficial change that is both fair and proportionate.

Amendment 3 seeks to limit the effect of the clause to people who have been taking a generally responsible approach to the safety of “employees or bystanders”. The hon. Member for Hammersmith indicated that that was intended to prevent the provision from being interpreted as extending to entirely non-safety-related matters, such as protecting shareholders’ profits.

[Mr Slaughter]

On a point of clarification, if the Minister is saying that there is a change of law in clause 3 because the “generally responsible approach” is not in case law or statute, is he saying that the provisions in clauses 2 and 4 relating to acting for the benefit of society and acting heroically are in case law or statute?

[Mr Vara]

As I said in Committee, where we debated this at length, clause 3 does make a change, for the reasons that I just gave. The purpose of the Bill is twofold. First and foremost, it directs the court to take into account certain factors that, at present, it has discretion to take into account under the Compensation Act 2006. Secondly, it sends the powerful message to members of the public who otherwise may not act in certain circumstances that the law is on their side.

On Second Reading, the hon. Member for Plymouth, Moor View (Alison Seabeck) gave the example of a time when she stepped off a bus and saw someone lying on the ground, and was told by people who were standing by that they were worried that they might be sued, and so did not want to do anything, or words to that effect. My hon. Friend the Member for Brigg and Goole (Andrew Percy) also gave an example: when he, as a first responder, went to places to give people medical attention, others were standing by, saying that they were afraid of legal consequences and were therefore not taking any risks. The legislation sends out a powerful message to the public that the law will be on their side.

We have deliberately drafted the clause broadly so that it focuses on whether the defendant demonstrated a generally responsible approach towards protecting the safety or other interests of others. This ensures that it will be relevant in a wide range of situations and will enable the courts to take account of all relevant circumstances and apply the provisions as flexibly as possible to achieve a just outcome. The clause is not restricted to personal injury claims and could in principle be applicable in relation to other instances of negligence, such as damage to property or economic loss, where issues of safety may not necessarily be relevant. That is why a broad definition has been used.

Narrowing the clause, as the amendment would, would mean that many bodies such as voluntary organisations, religious groups or social clubs which demonstrate a generally responsible approach towards protecting the safety or other interests of their clients or members would not be able to benefit from its provisions. That cannot be right.

Amendment 6 would remove part of the wording in clause 4 which clarifies what is meant by “acting heroically”. Specifically, it would remove the final words of the clause, which refer to acting

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

I am grateful to hon. Members for tabling the amendment, as we have been considering the issue carefully in the light of similar representations made by St John Ambulance and the Fire Brigades Union during the Committee stage. St John Ambulance indicated that the wording conflicted with first aid practice that discourages first aiders from putting themselves at risk, and the Fire Brigades Union warned that the clause more generally might conflict with advice to the public not to intervene.

After giving this matter further thought, we remain of the view that the courts will interpret the words

“without regard to the person’s own safety”

in accordance with our intended meaning—that a person acts heroically by intervening to assist someone in danger, regardless of the fact that doing so might risk his or her own safety. The example I used in Committee was of a person who sees somebody struggling to stay afloat in a fast-moving current. That person might jump in to help on the spur of the moment, without first deliberating whether he might be putting his own life at risk.

[Philip Davies]

I do not have an objection on the same grounds as St John Ambulance or the Fire Brigades Union. My objection to the wording that the amendment deals with is that it contains an unnecessary additional hurdle. The clause does not state “or without regard”. It states “and without regard”, which introduces an unnecessary extra hurdle. Even if somebody acts heroically, they may well still have some regard for their own safety, but they may go on to ignore that. However, to say that they must have had no regard for their own safety renders the clause, in my view, unworkable.

[Mr Vara]

I am grateful to my hon. Friend for giving me the opportunity to clarify the point, and I regret that I clearly have not been able to do so thus far. I refer to the point made by my hon. Friend the Member for Beckenham (Bob Stewart) when he spoke of someone acting spontaneously. If somebody were to witness a situation which required their assistance—for example, if somebody was drowning and it was necessary to jump in and save them—and they were able to do so, I am minded to say that that person would not say, “Well, I need to take account of the law here. If I were to jump in, is account going to be taken of whether I considered this dangerous or not?” If somebody is capable of saving that drowning person, they will jump in and save them. The courts will take account of all the facts of the case and I am confident that the present wording is necessary, the courts will take account of everything, and it will not be held against anybody that they may temporarily have considered danger.

[Philip Davies]

Will my hon. Friend indulge me one more time?

[Mr Vara]

Certainly.

[Philip Davies]

I appear to be speaking in a different language. I clearly cannot get through to the Minister so I will try to phrase my objection in a different way. Can he give us an example of something that would not be covered that should be covered if the wording ended after the word “danger”? What scenario that he wants included would not be included if the wording stopped at “danger”?

[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—

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[Mr Vara]

I beg to move, That the Bill be now read the Third time.

I thank all hon. Members who served in Committee, and those who have spoken on Report. It has been an interesting and lively debate, although there has been disagreement at times. I also say a big thank you to members of the Bill team and to the Clerks for their advice and support throughout, which have been much appreciated.

Although this is a short Bill, its three substantive clauses are nevertheless important. As I said earlier, the responsibility clause will reassure ordinary hard-working people who have adopted a generally responsible approach towards the safety of others during the course of an activity that the courts will always consider the context of their actions in the event that something goes wrong and they are sued.

We do not want people who try to do the right thing to worry constantly that somebody will take them to court. My right hon. Friend the Justice Secretary has been clear from the outset that he wants to reassure owners of small businesses and other employers who live in fear that an opportunistic or disgruntled member of staff may bring an unfounded negligence claim at the drop of a hat. In such circumstances, we hope that the Bill will give responsible employers greater confidence that there is no need to worry about defending themselves in court.

This is not just about protecting employers from negligence claims brought by employees, and in Committee we heard worrying examples of how the compensation culture can affect other organisations. As I mentioned on Report, the Cheshire fire and rescue service talked about members of the public bringing claims after they had tripped over fire-hoses in broad daylight, ignoring the flashing lights and liveried firefighters who were attending the scene of an emergency. It cannot be right that unjustified claims are brought against members of our emergency services who are doing their best in difficult conditions to save the lives of others. The Campaign for Adventure also warned that a litigious climate can produce a culture of fear that inhibits innovation, exploration, learning and altruism. We are committed to defeating that culture of fear.

The Bill will help all those hard-working individuals, organisations and small businesses who do the right thing and adopt a responsible approach towards the safety of others in the course of an activity by ensuring that that is taken into account by the court in the event of a claim. It will help to discourage speculative and opportunistic claims, and give confidence to responsible employers—and others—to resist them.

The social action clause will help to foster an environment of civic-mindedness and promote volunteering by reassuring those who make a positive contribution to society that the law will be on their side in the unlikely event that they are sued. Members of the House might recall that the coalition agreement included a commitment to

“take a range of measures to encourage volunteering and involvement in social action.”

That is precisely what we have been doing through the many initiatives that we have backed to increase participation in civil society, and I am glad that the proportion of people volunteering is steadily rising. The Bill will build on the progress we have already made by tackling the perception of the compensation culture, which can influence the willingness of people to volunteer. We know that worries about liability remain a real issue for some would-be volunteers. In his evidence to the Bill Committee, Dr Justin Davis Smith of the National Council for Voluntary Organisations confirmed that the fear of being sued prevents

“a significant proportion of people getting involved”.––[Official Report, Social Action, Responsibility and Heroism Public Bill Committee, 4 September 2014; c. 11, Q14.]

We hope that the social action clause will go some way to allaying the fears of people who are deterred from getting involved. Parliament has a significant role to play in highlighting what is valued in society. The Bill seeks to deliver a positive message. It is a message that social action is desirable, a message that responsible behaviour will be recognised, and a message that the law is on the side of those who undertake socially beneficial activities.

The final limb of the Bill, on heroism, addresses another key area of concern. Unfortunately, often people are unwilling to intervene in emergencies because they are worried they might be sued and ordered to pay damages if they try to help. At previous stages of the Bill we heard examples of such behaviour, both from Members and from those giving evidence to the Bill Committee. The Bill therefore seeks to address such concerns by reassuring the public that if they act heroically by selflessly intervening to provide assistance in an emergency, that will be taken into account by the courts should a claim of negligence be brought against them.

As the examples I have given demonstrate, the Bill applies to a wide range of situations and emphasises that the actions of those who seek to serve their communities are valued by the law. It will be relevant to those who act for the benefit of society by engaging in organised voluntary activities, or to those who perform acts of kindness for individual members of the community, such as assisting an elderly neighbour with day-to-day tasks. It will be relevant to those who demonstrate a generally responsible approach to the safety of others, whether in the work environment or in other contexts, and to those who selflessly assist others in emergencies. All of those people will be able to rest assured that full account will be taken of the context of their actions, should something go wrong and they are sued.

I emphasise again that the Bill does not confer immunity from civil liability for those whose actions fall within the scope of the Bill. Those who are injured by negligence will continue to have access to legal redress, and the Bill will not remove the court’s ability to do justice in an individual case. Courts will continue to be able to consider all the facts of an individual case, and nothing in the Bill will prevent a person from being found negligent if the circumstances of the case warrant it.

There has been some criticism of the Bill, particularly from members of the legal profession. I want to make it absolutely clear that this is not a Bill aimed at pleasing lawyers. It is a Bill that gives support and reassurance to ordinary people who act responsibly and for the benefit of society. The Bill adopts a fair and sensible approach that allays the fears of those who wish to undertake socially beneficial action, reassures organisations and individuals that a responsible approach to safety is recognised, and encourages a culture of altruism, not one of compensation. I commend the Bill to the House.