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Social Action, Responsibility and Heroism Bill

Volume 592: debated on Monday 2 February 2015

Consideration of Lords amendments

Clause 3


I welcome the return of the Bill to the House so that we can consider the amendments made in the Lords. I have listened carefully and with interest to the debates as the Bill has made progress and I must say that I have been amused by the position taken by Her Majesty’s official Opposition, who have been vociferous in saying that the Bill is pointless and meaningless. When it arrived in the other place, however, they campaigned vigorously against the clause on responsibility. You will understand, Madam Deputy Speaker, that if it is meaningless there is not much point in campaigning against it. The Bill is not at all meaningless. It has a purpose in protecting employers, particularly smaller employers, against the compensation culture and it will, I believe, make a significant difference. If it made no difference at all, why on earth did the Opposition try to strike out the clause? We know that the real reason the Opposition did not vote against the Bill is that they know that it addresses the genuine worries that ordinary people have about the growth of the compensation culture, which they talked about while in government and have conveniently forgotten about.

As hon. Members will recall, the Bill is designed to reassure hard-working individuals and organisations who have demonstrated a responsible approach to safety, who have been acting for the benefit of society or who have intervened in emergencies, that the courts will always take the context of their actions into account when determining whether they have been negligent. In spite of the negative comments about the Bill from the Opposition and in the other place, I am glad that the Bill returns to the House with only two modest changes.

Let me turn to the detail of the changes. Both were Government amendments tabled in response to concerns raised about specific aspects of the drafting and I ask the House to agree with them. Amendment 1 is to clause 3, on responsibility, and amendment 2 is to clause 4, on heroism.

On amendment 1, when clause 3 left this House it provided that the court should consider whether a person had demonstrated a “generally responsible” approach towards safety during the course of an activity in which an act of negligence was alleged to have occurred. The Opposition said that that would erode the rights of workers to sue their employers following injuries suffered in the workplace. On report, for example, the hon. Member for Hammersmith (Mr Slaughter) said that the clause was designed to

“allow a defendant to deflect from or evade responsibility in negligence and breach-of-statutory-duty cases.”—[Official Report, 20 October 2014; Vol. 586, c. 689.]

On Second Reading in the other place, Lord Kennedy of Southwark added that

“the legislation could worsen the position of workers.”—[Official Report, House of Lords, 4 November 2014; Vol. 756, c. 1570.]

Those assertions are entirely without foundation.

I want to make it clear that the Bill will not stop irresponsible employers from being found negligent when the circumstances of the case warrant it or stop the courts considering all relevant factors when reaching a decision on the claim. It is simply about ensuring that the courts take a common-sense approach to considering claims brought against hard-working owners of small businesses and others by considering their overall approach to safety in the course of the activity in which an accident occurred.

Although amendments proposed in the other place that would have undermined the main policy objectives of clause 3 were not carried, we agreed to one amendment designed to improve the clarity of the clause—namely the replacement of the word “generally” with the word “predominantly”. We made that amendment following concerns that were raised about possible uncertainty over the meaning of the term “generally responsible” arising from the fact that the word “generally” is capable of bearing a range of definitions.

Lords amendment 1 helps to provide greater clarity. The word “predominantly” is a stronger and clearer term than the word “generally” and, on reflection, better achieves our policy aims. It makes it clearer that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record. Instead, it makes it clear that, if a hard-working individual such as the owner of a small business is doing his best to keep people safe and something goes wrong in spite of his best efforts, the courts will always consider whether his approach to safety during the activity in question was a predominantly responsible one.

That is the key point. That is why we introduced the Bill and why clause 3 will make a difference. It will provide greater protection to an employer who seeks to do the right thing and to look after his or her employees, and something goes wrong that could not have been foreseen. Of course, the Labour party, in hock as it is to the trade unions, immediately assumes the worst and immediately wants to do down the small business person. That is a sign of the way the Labour party has gone in the past few years. It has moved away from being sympathetic to the interests of small business and instead is back to the days of union domination and saying, “Let’s back the workers.” This is a responsible, balanced measure that ensures that those people who are genuinely wronged retain their legal redress, but that the law is on the side of the responsible employer who seeks to do the right thing.

Lords amendment 2 relates to clause 4, on heroism. As hon. Members will recall, the clause requires the court to consider whether a person was intervening heroically in an emergency when the negligence is alleged to have occurred. We know from polls carried out by St John Ambulance and the British Heart Foundation that worries about liability can deter people from intervening to help others in emergencies. That is something we should all be concerned about, and the clause is designed to give people greater reassurance that the law will be on their side in those circumstances.

We debated a proposed amendment that emanated from St John Ambulance. I listened carefully to the arguments set out by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) and my hon. Friend the Member for Shipley (Philip Davies). After we passed the measure, I did as I undertook to do and went away and thought carefully about the measure. I listened to debates in the Lords and decided there was no reason not to accept the St John Ambulance recommendation and the recommendation made by my hon. Friend and my hon. and learned Friend. I hope they accept that we made the amendment in the good spirit of trying to get the measure absolutely right.

When clause 4 left this House, the meaning of “heroism” included a requirement that the defendant must have been acting

“without regard to his or her own safety or other interests”.

My hon. and learned Friend and my hon. Friend questioned whether the drafting of the clause might inadvertently exempt some very brave people who intervened in emergencies only after considering the risk to themselves and others. Initially, we thought it would be unlikely for the courts to interpret the clause in that way. However, in the light of the concerns raised on that point by St John Ambulance and the British Red Cross, and after discussions with those organisations and after considering the comments made in debates in the House and the other place, we decided that, to avoid any possible misinterpretation, the simplest solution would be to omit from the clause the reference to acting

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

That means that it will be absolutely clear that the clause applies in any case where a person intervenes in an emergency to assist somebody in danger, irrespective of whether he or she acted entirely spontaneously or after carefully weighing up the risks. The amendment has been greeted warmly by St John Ambulance and the British Red Cross, which have said that they will use the opportunity that the Bill provides to encourage and reassure new first aid volunteers that the law is on their side.

That is what the Bill is all about. It is about saying to three groups of people seeking to do the right thing in our society that the law is on their side—people acting heroically, people acting in the interest of others, and people acting responsibly, particularly employers taking a responsible approach to health and safety matters in their own workplace. For many years in this country, we have faced a compensation culture. The Government have sought to make a number of changes to combat that compensation culture. We have made changes to the way in which legal fees are paid, and we have made changes to the way in which the rules apply. The Bill will add to a positive step forward. [Interruption.]

The fact that Opposition Front Benchers are sitting chuntering is, to my mind, a sign that they really do not care about tackling the compensation culture in this country. They do not care about the interests of small employers, and they do not care about people who are seeking to do the right thing. They are interested only in looking after the vested interests that provide them with their finance and backing. It is a sign of what divides this Government from the Opposition. It is a sign that this Government are on the side of hard-working people and people who seek to do the right thing. Opposite we have a party that simply represents vested interests and does not care about such things. That is why Labour Members have sought to challenge the Bill all the way through. The argument that the Bill was meaningless followed by the attempt to strike out parts of it completely undermined what they said and showed how bankrupt their current thinking is.

The two amendments make a helpful improvement to the Bill. I hope that the House supports them, and that the Bill can pass into law. I hope we send the clear message to those people that this Parliament is on their side.

I do not often feel compassion for the Lord Chancellor, but even he must have approached the Chamber this afternoon with how sad steps. Today, on the heels of the dismissal of the chief inspector of prisons comes the resignation of the conflicted chief inspector of probation, and so, on the first full day of probation privatisation, we have no one in charge of standards in the service.

The Lord Chancellor is scattering confidential data around like confetti, he appears to have changed at whim the burden of proof in criminal cases, and this afternoon, one of his favourite private contractors, Capita, was fined £16,000 by the president of the—

Order. The hon. Gentleman is meant to be speaking to the Lords amendment. I normally give quite a lot of leeway for a general introduction, but he must speak to the amendment.

Indeed, that is what I intend to do, Madam Deputy Speaker. I was simply making the point that, with all of that going on just in the past few days, here we are talking about the Lord Chancellor’s heroes Bill. He is fiddling while Rome burns: more Nero than hero.

We are all sick of the Bill. I suspect the Lord Chancellor is sick of the Bill. Like many of his projects, it began as an exercise in public relations and a nod towards the tabloids, and a coded attack on the rights of the individual to find redress through the law. Both the ridicule and the incredulity with which it has been met on both sides of both Houses, and from almost every expert commentator, has exposed its pointlessness and fragility.

The Bill will be locked away from public gaze, elided by the courts and ignored by everyone else until some future Government finds a space in the legislative timetable to repeal it. The noble Lord Pannick said that he could not

“remember a legislative proposal that has been the subject of more sustained ridicule and derision.”—[Official Report, House of Lords, 15 December 2014; Vol. 758, c. 16.]

The chair of the Law Society policy board today wrote that there were two views of the Bill: that is was

“vague, meaningless and otiose”


“so ill-defined that it is dangerous to the point of mischievousness”.

Given that history, do the two minor amendments do anything to improve the Bill? They certainly do not make it any worse, if that is any comfort to the Lord Chancellor, so we have no reason to vote against them.

Amendment 2 has been urged on the Government since Second Reading on 21 July 2014, when the hon. Member for Bury North (Mr Nuttall) pointed out the unhelpful nature of the final words of clause 4. I moved to delete the offending words—

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

in Committee, supported by a very strong argument from St John Ambulance and the British Red Cross. However, it was not until Report in the other place that the Government finally gave in, stating:

“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.”—[Official Report, House of Lords, 15 December 2014; Vol. 758, c. 44.]

I am not sure that that was the point of the objections; rather, it was concern that the Government were encouraging bystanders to intervene, even when it was not safe to do so, and when more lives might be placed at risk, including those of professional rescuers. The Government have at least removed one howler, whatever their motive or excuse for doing so, so we welcome amendment 2. It is just rather late in the day in coming.

As for amendment 1, to leave out “generally” and insert “predominantly”, who knows what that will mean? No doubt we will find out in further satellite litigation, but given the brevity of the Bill, it is surprisingly full of imprecise, unhelpful and novel drafting. One belated and half-hearted attempt at reform is of little practical help. What does “activity” mean? What does “heroically” mean? What does “interests of others” mean? None of those issues has been addressed, only that one point.

Lord Pannick summarised his view of the Bill by saying that it

“will stand as a monument to the jurisprudential and policy achievements of Lord Chancellor Grayling. It is a fitting testament to the Lord Chancellor”.—[Official Report, House of Lords, 6 January 2015; Vol. 758, c. 262.]

Similar sentiments in less elegant language were expressed last week by the former Member for Harlow, Jerry Hayes.

We are all enjoying “Wolf Hall”, but perhaps with a tinge of regret that the office of Lord Chancellor, in the 500 years since Thomas Cromwell held the title, has gone from the indomitable to the unflushable. Cromwell was the architect of the biggest social and religious changes in the country’s modern history. This Bill, this Lord Chancellor’s last Act, certainly in this Parliament, is literally meaningless, and it is therefore, as has been said, a fitting memorial.

I do not need to be as offensive or as rude as the hon. Member for Hammersmith (Mr Slaughter) who spoke from the Opposition Front Bench. It is not in the least bit helpful to indulge in such rather childish and cheap personal remarks. The Lord Chancellor has a lot on his plate. I regret that the Bill was part of the menu, but none the less Parliament has discussed it and expressed its views on it and I, as a Member of Parliament, have done so as well.

I thank the Chancellor for the decision to agree with Lords amendment 2 and to remove from clause 4 the words

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

That makes clause 4 marginally better, although I have nothing to resile from in the views that I expressed about the Bill last summer. I thank the Government for that.

On clause 3, I do not particularly welcome the change of “generally” to “predominantly” because I do not think either adverb assists very much. Clause 3 would have been better had the Government moved a little towards what the former Law Lord, Lord Brown, said on Third Reading in the other place on 6 January at columns 253 to 255. I shall not rehearse all that he said, but I would move a little further than him and say that rather than talking about acts or omissions in line 10, the Bill would be better if, instead of

“in carrying out the activity in the course of which”

and so on, it said, “The court must have regard to whether the person responsible for the act or omission in the course of which the alleged negligence” and so on. That would have been a clearer set of words. If the Bill, when it is enacted, is to be of any use to any court, it would be a little more useful had those words been put into clause 3.

Finally, I agree with what Lord Pannick said when he paid tribute to my very good and noble Friend, Lord Faulks, the Minister of State in the Lords. Lord Pannick said:

“However, I pay genuine tribute—I emphasise ‘genuine tribute’—to the Minister, who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy”.—[Official Report, House of Lords, 6 January 2015; Vol. 758, c. 262.]

I shall not finish the sentence because it is not necessary to do so. I wish that those of us in this House who remain deeply critical of the Bill will none the less remember the hard work put into its deliberations in the other place single-handedly by my noble Friend, who has, like the Lord Chancellor, a lot on his plate, much of which, I am sure, he might have wished was not there.

There we have it. The Bill will go on to the statute book. I suspect that this particular book will not be opened again, but no doubt we will have other things to think about for the remainder of our busy schedule between now and the general election.

Lords amendments 1 and 2 agreed to.