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

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Richmond is a wake-up call for Labour's Brexit strategy

No one made Labour stand in Richmond Park. 

Oh, Labour Party. There was a way through.

No one made you stand in Richmond Park. You could have "struck a blow against the government", you could have shared the Lib Dem success. Instead, you lost both your dignity and your deposit. And to cap it all (Christian Wolmar, take a bow) you self-nominated for a Nobel Prize for Mansplaining.

It’s like the party strategist is locked in the bowels of HQ, endlessly looping in reverse Olivia Newton John’s "Making a Good Thing Better".

And no one can think that today marks the end of the party’s problems on Brexit.

But the thing is: there’s no need to Labour on. You can fix it.

Set the government some tests. Table some amendments: “The government shall negotiate having regard to…”

  • What would be good for our economy (boost investment, trade and jobs).
  • What would enhance fairness (help individuals and communities who have missed out over the last decades).
  • What would deliver sovereignty (magnify our democratic control over our destiny).
  • What would improve finances (what Brexit makes us better off, individually and collectively). 

And say that, if the government does not meet those tests, the Labour party will not support the Article 50 deal. You’ll take some pain today – but no matter, the general election is not for years. And if the tests are well crafted they will be easy to defend.

Then wait for the negotiations to conclude. If in 2019, Boris Johnson returns bearing cake for all, if the tests are achieved, Labour will, and rightly, support the government’s Brexit deal. There will be no second referendum. And MPs in Leave voting constituencies will bear no Brexit penalty at the polls.

But if he returns with thin gruel? If the economy has tanked, if inflation is rising and living standards have slumped, and the deficit has ballooned – what then? The only winners will be door manufacturers. Across the country they will be hard at work replacing those kicked down at constituency offices by voters demanding a fix. Labour will be joined in rejecting the deal from all across the floor: Labour will have shown the way.

Because the party reads the electorate today as wanting Brexit, it concludes it must deliver it. But, even for those who think a politician’s job is to channel the electorate, this thinking discloses an error in logic. The task is not to read the political dynamic of today. It is to position itself for the dynamic when it matters - at the next general election

And by setting some economic tests for a good Brexit, Labour can buy an option on that for free.

An earlier version of this argument appeared on Jolyon Maugham's blog Waiting For Tax.

Jolyon Maugham is a barrister who advised Ed Miliband on tax policy. He blogs at Waiting for Tax, and writes for the NS on tax and legal issues.