Jeremy Beecham on the government’s vacuous attempt to legislate for heroism
The prisons are in crisis, understaffed, overcrowded, with rising incidents of self harm and suicide. The judiciary complain of the difficulty, delay and cost caused by the increase in unrepresented litigants denied legal aid. 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. And the Lord Chancellor’s response? Another Grayling gimmick.
Two years ago, Chris Grayling celebrated his arrival at the Ministry of Justice by pitchforking provisions into the Crime and Courts Bill to supposedly protect householders from prosecution if they used force to defend themselves or their property from intruders. It would be interesting to know the total number of cases in which that measure has been invoked.
This autumn we have a one page five clause bill, designed to meet another non-existent problem. The unfair, or alternatively chilling, effect 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 it members”. From bash a burglar to hug a hero.
Such was the significance of the Lord Chancellor’s proposed measure that of the 18 witnesses he invited to give evidence in support of the Bill only five bothered to turn up. The Second Reading debate in the Commons took all of an hour and a half, with two backbench speeches. Not a single Government backbencher spoke in the Committee debate.
The Bill starts with the premise that volunteers are deterred from helping individuals, or society as a whole, for fear that they might be sued if things go wrong because of the alleged compensation culture which insurance companies and the media constantly denounce. There is in fact very little evidence to support this claim. The irony, of course, is that banging on about a compensation culture is itself likely to create the very apprehension which the Bill purports to allay. But the reality is that anyone seeking compensation has to prove on the balance of probabilities that the defendant has been negligent, have failed to take reasonable care, or are in breach of a statutory – and that this has caused the damage which is the subject of the claim.
Nothing in the Bill displaces that test, nor should it.
The position was well-summarised by Justice Minister Shailesh Vara MP in the Public Bill Committee. “Nothing in the Bill” he said “suggests that it gives immunity from civil liability. It also does not change the standard of care that is generally applicable. That is and remains what the ordinary and reasonable person should have done in the circumstance”. In which case, what is the point of the Bill?
To cap it all, we have one clause subtitled ‘Heroism’. This appears to be stuff of Greek legend or the annals of Boys Own. The Court is solemnly charged with the duty of having regard to whether the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s safety or other interests. No definition of heroism or intervention appears.
We salute those who risk their own life or limbs to rescue others, whether they do so as part of their job – as fire or police officers, for example – or simply as courageous citizens. But where is the evidence of claims for damages by the subjects of such brave and selfless interventions against those endeavouring to help them? For that matter, where is the evidence that the present state of the law deters such brave responses to emergency situations?
This Bill is a silly bill. It is empty and a vacuous example of gesture politics designed to distract attention from the serious problems caused by this government’s policies in the arena of justice.
Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords. He tweets @JeremyBeecham
Published 4th November 2014