Justice Secretary Chris Grayling's latest Bill has been widely panned. Photo: Getty
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Defining "acting heroically" in legal terms: Chris Grayling's Heroism Bill is a waste of time

The government has a patchy record with criminal justice bills – and the latest is no exception. The Social Action, Responsibility & Heroism Bill is attacked as a “vacuous waste of time” by the Labour party.

It was all change in the engine room at the Ministry of Justice last week, as junior ministers came and went but Captain Chris Grayling stayed on the bridge and continues steering manfully for the rocks.

His latest Justice Bill has its second reading today in the Commons. But those looking for answers to the many problems our criminal and civil justice systems face will not find them in the Social Action, Responsibility and Heroism Bill.

A cursory glance at the legal blogs and coverage shows that this Bill has been almost universally panned. Even the website ConservativeHome found space to criticise it. Last week it was slammed by the Association of Personal Injury Lawyers as potentially putting "vulnerable people at risk".

Is this indeed the case? The government admits in its "fact sheet" on the Bill that it: “would not change the overarching legal framework”. The Lord Chancellor himself calls it "a signpost from parliament to the courts".

There are only three short operative clauses to this 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.

Grayling claims the Bill will not fetter judicial discretion but that is exactly what it sets out to do. Fortunately, the Bill 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".

It is also unnecessary. If it has a purpose, that was fulfilled by Section 1 of the Compensation Act 2006 which dealt with this issue with more precise language than this Bill while retaining judicial discretion. 

Let’s look at the issues the Lord Chancellor wishes to address in the Bill.

Firstly, "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".

There is no evidence that this is a problem. Indeed the government’s own website DirectGov.uk, used to host a section debunking the snow and ice myth. It said: 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 archived. 

What signal does this clause send? Parents may fear that if their child is injured on a school trip no one will be held liable as the school was acting altruistically. They may decide not to send their child on the trip.  

How does that help the school, the parent or the child?

And what about the "everyday heroes" this Bill purports to assist?

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 then it could prove dangerous. The emergency services have vast experience in how and when to intervene, so why legislate and add more confusion?

The Bill’s most contentious aim is to weaken employees’ rights in the workplace. As Grayling told the Sunday Telegraph yesterday, if "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."

Of course, there would be no or a greatly reduced liability for the employer in this situation under the current law. This is another straw man.  

So, is this Bill intended as a further attack on the workers’ and trade union rights, an attempt to give the whip hand to employers, and to feather bed insurers?  No surprise there. It will likely fail in that intention also, because the law on negligence remains unaltered and the courts are now used to Grayling's legislation as press release style.

But it gives an insight into the mentality of a government that asked to judge the stronger party in workplace injury claims (down by half in the last ten years by the way) sees the employer, insured and in control of the accident site, as needing protection from the injured employee unable to earn their salary and plucking up the courage to sue their boss.

This Bill is a waste of parliamentary time, but its intention is to frustrate further the fair operation of our courts and legal system.


Andy Slaughter is shadow justice minister and Labour MP for Hammersmith

Photo: Getty
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Theresa May's "clean Brexit" is hard Brexit with better PR

The Prime Minister's objectives point to the hardest of exits from the European Union. 

Theresa May will outline her approach to Britain’s Brexit deal in a much-hyped speech later today, with a 12-point plan for Brexit.

The headlines: her vow that Britain will not be “half in, half out” and border control will come before our membership of the single market.

And the PM will unveil a new flavour of Brexit: not hard, not soft, but “clean” aka hard but with better PR.

“Britain's clean break from EU” is the i’s splash, “My 12-point plan for Brexit” is the Telegraph’s, “We Will Get Clean Break From EU” cheers the Express, “Theresa’s New Free Britain” roars the Mail, “May: We’ll Go It Alone With CLEAN Brexit” is the Metro’s take. The Guardian goes for the somewhat more subdued “May rules out UK staying in single market” as their splash while the Sun opts for “Great Brexpectations”.

You might, at this point, be grappling with a sense of déjà vu. May’s new approach to the Brexit talks is pretty much what you’d expect from what she’s said since getting the keys to Downing Street, as I wrote back in October. Neither of her stated red lines, on border control or freeing British law from the European Court of Justice, can be met without taking Britain out of the single market aka a hard Brexit in old money.

What is new is the language on the customs union, the only area where May has actually been sparing on detail. The speech will make it clear that after Brexit, Britain will want to strike its own trade deals, which means that either an unlikely exemption will be carved out, or, more likely, that the United Kingdom will be out of the European Union, the single market and the customs union.

(As an aside, another good steer about the customs union can be found in today’s row between Boris Johnson and the other foreign ministers of the EU27. He is under fire for vetoing an EU statement in support of a two-state solution, reputedly to curry favour with Donald Trump. It would be strange if Downing Street was shredding decades of British policy on the Middle East to appease the President-Elect if we weren’t going to leave the customs union in order at the end of it.)

But what really matters isn’t what May says today but what happens around Europe over the next few months. Donald Trump’s attacks on the EU and Nato yesterday will increase the incentive on the part of the EU27 to put securing the political project front-and-centre in the Brexit talks, making a good deal for Britain significantly less likely.

Add that to the unforced errors on the part of the British government, like Amber Rudd’s wheeze to compile lists of foreign workers, and the diplomatic situation is not what you would wish to secure the best Brexit deal, to put it mildly.

Clean Brexit? Nah. It’s going to get messy. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.