‘Monument to Grayling’ clears its final hurdle in the House of Lords as it passes third reading

The Lord Chancellor’s controversial Social Action, Responsibility and Heroism (SARAH) Bill passed its third reading in the House of Lords despite further criticism from opposition and cross-bench peers.

The government has claimed that the Bill will 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.

The proposed legislation, which has proved highly contentious in legal circles, will force judges to consider the context of negligent acts and whether a defendant had shown a generally responsible attitude to health and safety in the past.

The government was able to secure a minor amendment to the original wording of the Bill during the third reading in the House of Lords, with the word ‘generally’ replaced with ‘predominantly’. This followed an amendment moved by Lord Pannick to replace the word ‘activity’ with ‘act or omission’ within clause 3 of the Bill.

‘Litigation shadow’

Defending the “small but important” Bill from attack, the justice minister Lord Faulks said he hoped the new law would encourage volunteering and remove the “shadow that can hang over many activities: the fear of litigation”.

“This amendment makes clear that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record,” he added. “Instead, it means that the court must focus on whether the defendant has taken a predominantly responsible approach to safety in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred.”

The justice minister was supported by the Conservative peer, and partner at international law firm DACBeachcroft, Lord Hunt of Wirral, who explained how he had recently returned from Antarctica with “unbridled enthusiasm” for the Bill.

“I found myself in the company of adventurers, and I have to tell the minister that they greeted the Bill with enthusiasm,” said Lord Hunt. “They took the view that we have achieved the wrong balance, with too much emphasis on health and safety, which, sadly, has led to the cancellation of a lot of trips similar to the one that I went on.”

The Conservative peer went on to compare the Bill to the passage of the Compensation Act 2006: “At the time, it came under severe attack from some of the most senior lawyers in this House, who tried to explain that it did not add anything and that it should all be left to the judges. But the general view is that [clause 1 of the Act] has done a great deal to calm people down and to stop the cancellation of a lot of adventure holidays.”

‘Vanity publishing’

By contrast, the Labour peer Lord Beecham compared the Bill to “vanity publishing” by parliament and described the substitution of the word ‘generally with ‘predominantly’ as “positively Elgarian“. The peer then went on to repeat a question he posed at “the earlier stages of this sorry Bill’s journey through the House: why should the negligent solicitor, accountant, financial adviser, architect, builder, tradesman or manufacturer, and more especially their insurers, escape liability to compensate an innocent client or purchaser because their conduct has been predominantly responsible…during the activity in question?”

Lord Beechman went on to argue that in his opinion, far from clarifying the law, clause 3 would likely promote more, not less, litigation “unless, of course, people of modest means, for whom legal aid will not be available, are deterred from bringing otherwise well founded claims and are thereby denied justice. But perhaps that is, after all, what the Government really want,” he said.

Delivering a stinging rebuke to the justice secretary, Chris Grayling, Lord Pannick said that the Bill was a fitting testament to the Lord Chancellor and would stand as a monument to his jurisprudential and policy achievements “so long as negligence cases are brought in this land”.

Quoting the English romantic poet Percy Bysshe Shelley in Ozymandias, one of his most famous works, the cross-bench added: “Look on my works, ye Mighty, and despair!”

“Mr Grayling has told us…that men and women up and down the land are standing ready to volunteer for social action. They are preparing themselves for acts of heroism, waiting only to receive the message that parliament has approved this Bill to remove the concerns that they otherwise have about litigation. Then off to the youth clubs and old-age homes they will go to volunteer and into the lakes they will dive to rescue those in danger, and in those circumstances it would be irresponsible of me to delay the Bill any longer.”

The peer, who previously described the Bill as a ‘Grayling gimmick’, added that the proposed law “always was and remains the most ridiculous piece of legislation approved by parliament in a very long time”.

‘Genuine tribute’

Agreeing to withdraw his amendment, Lord Pannick decided to pay a “genuine tribute” to Lord Faulkswho he said had “applied his formidable skills of reason and eloquence, and has done so with consummate courtesy, to a text that would barely muster a pass mark in GCSE legal studies”.

“When the noble Lord was appointed to his position on the front bench, he would no doubt have looked forward to debating important issues of law and justice,” commented Lord Pannick. “I doubt that he expected that he would be the straight man in Mr Grayling’s comedy routine, requiring courts to consider whether a defendant has acted heroically.

“Well, the minister has heroically dived into the lake created by Mr Grayling’s conference speech. He has rescued this pitiful creature of a Bill and has emerged from the lake with his hair still dry and his suit entirely uncrumpled, he is not even out of breath and he has done it all with a straight face. If I may say so, that is deeply impressive, which is more than can be said for this Bill.”

President of the Association of Personal Injury Lawyers, John Spencer, said: “APIL has challenged continuously the government’s method of tackling the fear of litigation with legislation when education is the best tool to eradicate myths. Despite a worthy overall objective, the SARAH Bill has achieved nothing except to amplify misunderstandings about personal injury and the law of negligence. I sincerely hope that the public message generated by the government’s campaign does not lead any have-a-go-heroes, believing they are immune from the law, to act recklessly and cause harm.”

Commenting on the Bill’s passage through the Lords, Hilary Meredith, CEO of Hilary Meredith Solicitors, said: “What is the point of this humiliating and amateurishly drafted and proposed Bill, a complete waste of taxpayers’ money, at least we have it on record that the Ministry of Defencecannot escape liability under the unforeseen consequences of this ridiculous bill?

The Bill will now return to the House of Commons for the final approval of amendments before being granted royal assent.

This article was first published in the Solicitors Journal on 7 January 2014 and is reproduced with kind permission.