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