It is a pleasure to follow the hon. Member for Strangford (Jim Shannon). He is right that I will not find the same value in the Bill that he does, but none the less I felt that his speech showed his usual good grace and spirit. He is the archetypal good samaritan in this respect.
It is all change in the engine room at the Ministry of Justice, though the captain is still there steering manfully for the rocks as ever. [Hon. Members: “Where is he?”] He is rather more like Captain Oates today. I think it does show some disrespect for this House that he did not stay for any speeches, including that of the former Solicitor-General, the hon. and learned Member for Harborough (Sir Edward Garnier).
May I, in true bipartisan spirit, congratulate the hon. Member for Kenilworth and Southam (Jeremy Wright), who is not in his place, on his promotion to the role of senior law officer? He will no doubt discharge it with the same calm and rational demeanour that was his hallmark at the Ministry of Justice. Let us hope that he also adopts the robust independence that the right hon. and learned Member for Beaconsfield (Mr Grieve) showed in that post.
I also welcome the hon. Member for South West Bedfordshire (Andrew Selous) to the justice team—it is a shame he is not in his place either. I understand that we are getting only a part of him as, along with being an unpaid Prisons Minister and an afterthought in the reshuffle, he will spend part of his time in the Whips Office. Of course it is an unalloyed pleasure to see the Under-Secretary of State for Justice, the hon. Member for North West Cambridgeshire (Mr Vara), still in his place.
This Bill has been described as “a turkey”, “a complete waste of time,”
“a solution in search of a problem”
and
“an unnecessary and wholesale interference with the rights of injured people.”
It has been accused of
“shifting the blame to workers when they are injured.”
It is said to be, “an erosion of workers’ rights”, “nonsense” and “gobbledygook”. It is said to cause confusion about
“who is protected from the law and to what degree.”
Surely it has some supporters? Well, no, it does not—not really. The Government pray in aid the National Council for Voluntary Organisations, but the NCVO says it is
“not expected to significantly alter the current law.”
It says it is “classic nudge tactics”. At best, it sends a message and is
“unlikely to be able to do any harm.”
But then that is the Government’s view as well. The explanatory notes say that the Bill would not change the overarching legal framework. The Lord Chancellor himself says it is
“a signpost from Parliament to the Courts.”
Do we really need legislation for that? It is only two stops on the tube to the Royal Courts of Justice. Where are the other representatives of civil society, defendant lawyers and even political allies speaking up for this Bill?
We heard a thoughtful speech from the hon. and learned Member for Harborough, who quietly but effectively proved there is no justification for the Bill. As we have heard, ConservativeHome described it as a Bill that should not be in the Queen’s Speech. The Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), is now charged, on behalf of the Lord Chancellor, with weeding out unnecessary laws that clog up the statute book. He could start with this one.
There are only three short operative clauses in the Bill. They instruct a court considering negligence or statutory duty claims to have regard to whether a defendant was acting for the benefit of society, demonstrating a generally responsible approach or acting heroically. The Lord Chancellor claims the Bill will not fetter judicial discretion, but that is all it sets out to do. Fortunately, it is so poorly drafted that it will probably fail in that aim, but it will undoubtedly spark quantities of satellite litigation as the parties seek to define “benefit of society”, “a generally responsible approach” and “acting heroically”.
First, insofar as it is necessary at all, the purpose of the Bill has already been fulfilled by section 1 of the Compensation Act 2006, which states:
“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
(a) Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) Discourage persons from undertaking functions in connection with a desirable activity.”
This gives guidance to the court in less ambiguous and florid language than the instant Bill, while retaining discretion. If the Secretary of State disapproves of the Compensation Act, why is he leaving it on the statute book? If he thinks it ineffective, why is he repeating the mistake of legislating in much the same terms? If he thinks it is working, his own Bill must be otiose.
Secondly, the Lord Chancellor has, as usual, adduced no evidence that a new law is necessary. He relies on a survey of 300 people from almost 10 years ago to say that some people are deterred from volunteering by fear of being sued. But the National Council for Voluntary Organisations says only 1% of volunteers stopped because they feared opening themselves to litigation. Last year, the former Minister for Civil Society, the hon. Member
for Ruislip, Northwood and Pinner (Mr Hurd), issued a press release trumpeting that volunteering was at an all-time high.
Let us look at the problems the Lord Chancellor purports to address in the Bill. The first is:
“the person who holds back from sweeping snow off the pavement outside their house because they are afraid that someone will then slip on the ice and sue them”.
No one, up to and including the Lord Chief Justice, can point to a case of this kind being brought, let alone succeeding. Indeed, the Government’s own website, Direct.Gov.uk, used to host a section debunking the snow and ice myth. It said:
“Don’t be put off clearing paths because you’re afraid someone will get injured. Remember, people walking on snow and ice have a responsibility to be careful themselves. Follow the advice below to make sure you clear the pathway safely and effectively. And don’t believe the myths—it’s unlikely you’ll be sued or held legally responsible for any injuries if you have cleared the path carefully.”
Curiously, this page was recently removed from the site, but we still have the words of the new Attorney-General, who in 2010 said that
“the courts are very unlikely to find the public-spirited domestic snow shoveller negligently liable for any injuries, in the absence of spectacular incompetence.”—[Official Report, 2 February 2010; Vol. 505, c. 171.]
More seriously, the signal that the Government are sending to volunteers in clause 2 is misleading. It implies a lower standard of care is needed by those engaged in altruistic pursuits. Parents may face the fear that if their child is injured on a school trip due to fault with the organisers, they will struggle to get compensation. Parents may well take a dim view that because the negligent organiser failed to use the right safety equipment, they will not receive compensation to help them support their newly injured child. Alternatively, they may boycott the activities the school has arranged. How does that help the school, the parent or the child?
Secondly, the Lord Chancellor bemoans the
“member of the emergency services who feels they can’t come to the rescue of someone in difficulty because of the fear they will end up in trouble for breaching health and safety rules”.
If this is intended to give the green light to anyone, trained emergency service worker or public spirited bystander, to act with less care and a feeling of impunity, it is dangerous. The emergency services have vast experience in how and when to intervene. As the TUC has said:
“There is not a shred of evidence that there is a problem. The police, fire and ambulance unions have worked closely with their employers and the HSE to develop guidance which ensures health and safety protection is compatible with emergency situations...There is not a case of anyone being prosecuted for trying to save someone in an emergency situation”.
The few, but widely reported, cases of systems breaking down require better training and communication, not legislation. The everyday hero is not put off from helping out in a crisis by fears for his or her own safety, so why would they be by fear of litigation? Yet the Bill will give no more legal protection—so much for clause 4.
Clause 3, while equally vacuous, has a more malign intent. The Lord Chancellor told The Sunday Telegraph yesterday:
“This is a Bill that’s out to…slay the health and safety culture. It is about trying to restore common sense to the kind of situations which happen all too often and very seldom get to court - where
somebody has an accident at work, it’s entirely their own fault, they have got a perfectly responsible employer who has the normal health and safety procedures in place but that person does something dumb, hurts themselves and sues the employer anyway.”
In that situation, the court would find against the claimant on liability or quantum. This is a further, though probably ineffectual, attack on the rights of employees, and an attempt to give the whip hand to employers, even in this sensitive area, and to please the Association of British Insurers, whose members are such generous donors to Tory party funds. They hope that claims will be suppressed and individuals driven to self-insure.
Once again, where is the evidence? The number of workplace claims has halved in the past 10 years; more than half of claims are for less than £5,000; and 75% are for less than £10,000. It is a myth that negligence cases are easy to bring, and now that the Government have all but abolished strict liability, who is the stronger party in workplace disputes—the employer, insured and in control of the accident site, or the injured employee, unable to earn their salary and plucking up the courage to sue their boss?
The case for the Bill is not made out. The Lord Chancellor said he did not need a Bill to dismantle criminal aid or embark upon his disastrous privatisation of the probation service, so why does he need one to tackle what has been overwhelmingly proven to be a matter of education, rather than enforcement? The Bill does nothing to tackle the growing crisis in British prisons or the hundreds of thousands of people going unrepresented in the family courts or lacking the most basic advice where social welfare legal aid has been taken out of scope. The Bill addresses none of the damage the Government have done to the criminal justice system.
Rather than stoking unjustified fears, the Government should be tackling the real crisis in our legal system: the steady erosion of our civil liberties and access to justice, which protects the strong and leaves the ordinary citizen without justice or redress.
6.52 pm