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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Here's what Theresa May could say to save the Brexit talks

The best option would be to invent a time machine, but unfortunately that's not on the table. 

One of my favourite types of joke is the logical impossibility: a statement that seems plausible but, on closer examination, is simply impossible and contradictory. “If you break both legs, don’t come running to me” is one. The most famous concerns a hapless tourist popping into a pub to ask for directions to London, or Manchester, or Belfast or wherever. “Well,” the barman replies, “I wouldn’t have started from here.”

That’s the trouble, too, with assessing what the government should do next in its approach to the Brexit talks: I wouldn’t have started from here.

I wouldn’t have started from a transient Leave campaign that offered a series of promises that can’t be reconciled with one another, but that’s the nature of a referendum in which the government isn’t supporting the change proposition. It’s always in the interest of the change proposition to be at best flexible and at worst outright disregarding of the truth.

Britain would be better off if it were leaving the European Union after a vote in which a pro-Brexit government had already had to prepare a white paper and an exit strategy before seeking popular consent. Now the government is tasked with negotiating the terms of Britain’s exit from the European Union with a mandate that is contradictory and unclear. (Take immigration. It’s clear that a majority of people who voted to leave want control over Britain’s borders. But it’s also clear that a minority did not and if you take that minority away, there’s no majority for a Leave vote.

Does that then mean that the “democratic” option is a Brexit that prioritises minimising economic harm at the cost of continuing free movement of people? That option might command more support than the 52 per cent that Leave got but it also runs roughshod over the concerns that really drove Britain’s Leave vote.

You wouldn’t, having had a referendum in inauspicious circumstances, have a government that neglected to make a big and genuinely generous offer on the rights of the three million citizens of the European Union currently living in the United Kingdom.

In fact the government would have immediately done all it could to show that it wanted to approach exit in a constructive and co-operative manner. Why? Because the more difficult it looks like the departing nation is going to be, the greater the incentive the remaining nations of the European Union have to insist that you leave via Article 50. Why? Because the Article 50 process is designed to reduce the leverage of the departing state through its strict timetable. Its architect, British diplomat John Kerr, envisaged it being used after an increasingly authoritarian state on the bloc’s eastern periphery found its voting rights suspended and quit “in high dudgeon”.

The strict timeframe also hurts the European Union, as it increases the chances of an unsatisfactory or incomplete deal. The only incentive to use it is if the departing nation is going to behave in a unconstructive way.

Then if you were going to have to exit via the Article 50 process, you’d wait until the elections in France and Germany were over, and restructure Whitehall and the rest of the British state so it was fit to face the challenges of Brexit. And you wouldn’t behave so shabbily towards the heads of the devolved administrations that Nicola Sturgeon of the SNP and Carwyn Jones of the Welsh Labour Party have not become political allies.

So having neglected to do all of that, it’s hard to say: here’s what Theresa May should say in Florence, short of inventing time travel and starting the whole process again from scratch.

What she could do, though, is show flexibility on the question of British contributions to the European budget after we leave, and present a serious solution to the problem of how you ensure that the rights of three million EU citizens living in Britain have a legal backdrop that can’t simply be unpicked by 325 MPs in the House of Commons, and show some engagement in the question of what happens to the Irish border after Brexit.

There are solutions to all of these problems – but the trouble is that all of them are unacceptable to at least part of the Conservative Party. A reminder that, as far as the trouble with Brexit goes, Theresa May is the name of the monster – not the doctor. 

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