Lord Chancellor’s Bill is a statement of the ‘legally obvious’

The Lord Chancellor, Chris Grayling, has been strongly criticised in the House of Lords for his Social Action, Responsibility and Heroism Bill (SARAH).

The Bill aims to tackle ‘compensation culture’ and provide volunteers with greater protection from claims of negligence when acting in ‘the common good’. It also aims to protect responsible small-business owners against claims from employees.

Justice minister Lord Faulks told the House of Lords that the legislation was about sending a message to prevent litigation as well as changing the outcome of cases before the courts: “The Bill does not seek to confer immunity from civil liability on anyone whose actions fall within its scope. Those who are injured through negligence will continue to have access to legal redress and the Bill will not affect the court’s ability to do justice in an individual case. The Bill ensures that the important matters it deals with are always considered by the courts, alongside all other pertinent factors as appropriate.”

Members of the Lords were to discuss the key principles and main purpose of the Bill when an amendment to SARAH was tabled by Lord Lloyd of Berwick who said the Bill was “exceptional – not because it is of any importance but because it is of no importance at all. It is useless. It received negligible support in the Commons”.

Lord Lloyd continued: “In truth, the Bill is unamendable. That was the view taken by the Law Society, and it was right. The Bill is so defective in all three operative clauses that the only feasible amendment is to take each of the three clauses in turn and remove it from the Bill. That was the view taken by the Labour Opposition. They moved an amendment to remove clause 3. They might as well have tabled amendments to remove the other two clauses. That is what I shall seek to do in committee if the Bill is given a second reading. If I succeed, we shall have an Act which will consist of nothing but its title. I wonder what legal historians will make of that.”

The retired judge argued that the limited changes in the Bill were already covered by the Compensation Act 2006 and it was therefore a waste of parliamentary time to continue debating it.

Non-existent problem

Lord Beecham then took up the baton describing the Bill as “another Grayling gimmick” and highlighted other issues with which the Lord Chancellor should be more concerned.

“The prisons are in crisis – understaffed, overcrowded, with a rising incidence of self-harm and suicide,” he said. “The judiciary complains of the difficulty, delay and cost caused by the increase in unrepresented litigants denied legal aid. The magistracy is greatly concerned about the decline of local justice, exacerbated by court closures and the increasing reliance on professional district judges. An untried and risky change in the probation service is under way, beset by the loss of experienced staff and reports of confusion and disorganisation. The Lord Chancellor’s response is what can only be described as another Grayling gimmick.”

The Labour peer added: “Two years ago, the Lord Chancellor celebrated his arrival in office by pitchforking unnecessary provisions into the then Crime and Courts Bill, supposedly to protect householders from prosecution if they used force to defend themselves or their property from intruders. It would be interesting to learn in just how many cases that measure has been invoked.

“This autumn, we have a five-clause, 20-line, one-page Bill – one of the shortest on record – designed to meet another non-existent problem: the unfair, or alternatively chilling, effect of the so-called compensation culture on those who might face a claim for compensation for negligence or breach of statutory duty while, ‘acting for the benefit of society or any of its members’. From bash-a-burglar to hug-a-hero in two years.”

‘Basil Fawlty’

Perhaps the most stinging indictment of the Lord Chancellor and his Bill came from Lord Pannick, who said: “I am not disappointed by this Bill. When I see that the Lord Chancellor is bringing forward a legislative proposal, I worry about which valuable aspect of our legal system he is going to damage: judicial review, human rights and legal aid have all come under the cosh. It is, then, a pleasant surprise that the Lord Chancellor should be using valuable legislative time on a Bill which is so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow.

“The Bill puts me in mind of what Basil Fawlty says of his wife Sybil in Fawlty Towers: ‘She should be a contestant on Mastermind. Special subject: the bleedin’ obvious’. The Bill is a statement of the legally obvious. I find it very difficult to believe that, if enacted, it is going to make any difference whatever to any case that comes before the courts.”

Compensation culture

The cross-bench peer noted that when opening the Bill’s second reading before the Commons, the Lord Chancellor, commented that SARAH, ‘[was] about bringing back common sense’.

“As far as the courts are concerned, common sense never went away,” said Lord Pannick. “Leading judgments have established that: they establish that where appropriate and on the facts of any particular case, the court gives weight to what this Bill describes as social action, responsibility and heroism.

“There is simply no compensation culture in English law. I ask the minister which judgments would have been differently decided if the Bill were in force. Mr Grayling’s answer at second reading to such a question was to say that, ‘this is not just about what happens in the courts … The Bill is designed to send a powerful message’. So the Lord Chancellor’s concern was with perception, not reality.”

Concluding, Lord Pannick said the contents of the Bill were not objectionable but “simply pointless”.

However, despite the criticism the Bill passed and will now be sent to committee stage having won support from a number of Conservative peers. Even Labour’s Lord Kennedy of Southwark said his party did not want to deny it a second reading even after he described it as a “depressing waste of parliamentary time”.

The SARAH Bill has already been criticised by lawyers as being ‘unnecessary’ and by opposition politicians as ‘pathetic and embarrassing’.

The full House of Lords debate can be viewed here.

This article was first published in the Solicitors Journal on 5 November 2014 and is reproduced with kind permission.