Social Action, Responsibility and Heroism Bill

John Bercow Excerpts

Monday 20th October 2014 Commons Chamber

[Mr Cunningham]

rose—

[Mr Speaker]

Order. The Minister is a legendarily diligent and conscientious fellow and among the most courteous of Members. He was on the path of virtue. He was led astray by the hon. Member for Huddersfield (Mr Sheerman), albeit with his characteristic charm and insistence; but the Minister should not persist away from the path of virtue even if it is Members with decades of experience who are naughtily seeking to tempt him in that direction. We must now focus on amendment 1, as we are not having a Second Reading debate. Being the sort of dutiful, law-abiding fellow that the hon. Member for Coventry South (Mr Cunningham) is, I am sure his intervention will be entirely in order.

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[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 3, page 1, line 13, leave out

“or other interests of others”

and insert “of employees or bystanders”.

Amendment 4, page 1, line 13, at end insert

“in relation to the circumstances leading up to the alleged negligence”.

Amendment 5, page 1, line 9, leave out clause 3.

Amendment 6, in clause 4, page 1, line 17, leave out from “danger” to end of line 18.

[Mr Slaughter]

I will deal briefly at the end with the amendment relating to clause 4. It raises the issue posed by the hon. Member for Colchester (Sir Bob Russell) about St John Ambulance and its concerns about the Bill. Amendments 2 to 5 deal with what is effectively the Bill’s only operative clause, clause 3. Again, I make no apology for saying that these amendments were put in Committee.

Amendments 2 to 4 propose ways of improving the drafting of what everyone from the Law Society to legal practitioners and commentators has described as one of the worst-drafted pieces of legislation they have ever seen. Our concern is that clause 3 is drawn very widely. It states:

“The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.”

That is hedged around with many generalities. What is a “generally responsible approach”? What does the “safety or other interests” of others mean? Our amendment 4 attempts to clarify the clause by adding the words

“in relation to the circumstances leading up to the alleged negligence”.

The Minister was made aware of this point in Committee so I shall not explain it at length, but the purpose of our amendments is to ensure that if material other than that specifically relating to a particular incident is taken into consideration, it should have a direct causal link—through time, location or type—to the incident being complained of. Otherwise, we risk opening up many cans of worms. In relation to an accident at work, for example, the entire conduct of an employer or employee over a long period could be taken into account, as could working practices and conditions, as well as “other interests”, whatever they might be. I suspect that, in trying to keep the ministerial team happy, the parliamentary draftsmen have been scratching their heads and trying to come up with something. Our amendments are meant to be genuinely constructive in trying to improve the drafting of the Bill—if that is possible. But I shall say no more about that.

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[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.