Debate Excerpts: Sadiq Khan vs Lord Garnier
View exchanges between Sadiq Khan and Lord Garnier
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Sir Edward Garnier - Hansard - - - Excerpts

That was very interesting. I have absolutely no doubt that my right hon. Friend the Secretary of State wanted to hear every word I am about to say, but he has other pressing public duties to attend to. No doubt, he will read the whole of this afternoon’s debate in the Official Report in due course.

One good reason for speaking in this debate is to give me an opportunity to thank my hon. Friend the Member for Ruislip, Northwood and Pinner (Mr Hurd) for his work as a Cabinet Office Minister, particularly on the voluntary sector. He worked extremely hard, with precious little thanks, and was content to do so, despite the fact that all he did achieved, sadly, very little public profile. At least on this occasion, we can thank him very much for all he did. I trust that it will not be long before he is back in government again.

As I said at the outset, I am not hugely enthusiastic about this particular piece of legislation. I am concerned that what the Secretary of State said does not reflect the long title, which states that it is a Bill:

“To make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty.”

Most of what he said had to do with sending out messages. We all need to send out messages from time to time—sometimes to ask for help, and sometimes to ask people to pay attention to what we are trying to do. In so far as it went, his speech was no doubt well intended, but it did not, if I may say so, condescend to deal with the Bill as a potential piece of law. If we are to pass or make laws, they must be coherent. Although I entirely agree with all the sentiments that he uttered this afternoon about reducing the so-called health and safety culture, reducing the easy acceptance of the only answer to a problem being to sue and dissuading ambulance-chasing solicitors from doing this, that or the other, I regret to say that I do not agree that this particular Bill will achieve that.

I do not know how many people who are intent on bringing an action, if they are not lawyers themselves, think about pieces of legislation. Let us hope that I am wrong and my right hon. Friend is right, and that when the Bill is enacted, copies of it will be plastered all over doctors’ waiting rooms and other public places, so that no citizen will be tempted to bring a spurious claim.

I would be interested to hear how many High Court or county court actions would have been decided differently had the Bill been in force. It is perfectly true to say that the Compensation Act 2006 covers many of the areas of conjecture that are covered by the Bill. I am not persuaded that the Bill covers any new territory.

Sir Edward Garnier - Hansard - - - Excerpts

That is, no doubt, what the impact assessment says. Whether that justifies the bringing into law of the Bill, I rather doubt.

I spoke about the Bill before having read it on the Thursday of the Queen’s Speech debate. I teased the Secretary of State for Communities and Local Government rather rudely by inviting him to provide a definition of “heroic negligence”. He heroically tried to provide me with such a definition, but he did not do so. That is not surprising, because I am not entirely sure that there is such a thing.

I was interested in what my noble Friend Lord Faulks, the Minister of State at the Ministry of Justice, said on 9 June in the debate on the Queen’s Speech in the other place. He said that the Bill will not change the existing overarching legal framework or leave victims without protection, but that it will provide reassurance and send a strong signal to the courts. To quote directly, he said:

“They will still need to look at whether a defendant met the appropriate standard of care in all the circumstances of the case.”—

I say, in parenthesis, that that is what they do already—

“Nor will it introduce blanket exemptions to civil liability. There is an important balance to be struck between encouraging participation in civil society and being mindful of the impact that careless or risky actions could have on the very people that the defendant was trying to help. The Bill is not about removing protection and leaving victims without proper recourse in those circumstances. However, it will give valuable and needed reassurance to a wide range of people and send a powerful signal that the courts will take full account of the context of a person’s actions when determining a negligence claim.”—[Official Report, House of Lords, 9 June 2014; Vol. 754, c. 132.]

I do not think that anybody in either House knows more about the law of negligence than my noble Friend Lord Faulks, who has 40 years’ experience at the Bar dealing predominantly with cases involving negligence and public authorities, such as fire authorities. Reading between the lines of what he said—he will contradict me if I have got this wrong—he does not have a huge amount of enthusiasm for the Bill. However, I may have misread what he said.

The Bill is more like an early-day motion than a proper statute. I say that because, as the Secretary of State admitted, it is predominantly there to send out a message—a strong signal. As I have had many opportunities to say in my 22, 23 or 24 years in this House, we should legislate not to send out signals or messages, but to make good black-letter law, so that the courts know what the law is and can apply it, and so that the legal professions know what it is and can advise the public on it.

My concern is that the contents of the Bill have been within the common law and the ambit of the court’s appreciation for years and years. In 1954, in the case of Watt v. Hertfordshire County Council, Lord Justice Denning, as he then was, spoke about the balancing act performed by the court when people intervene to help in an emergency, which relates to clause 4. He said:

“It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the Fire Service.”

What Lord Justice Denning said is as true now as it was in 1954, as I know from the emergency services in my own county of Leicestershire, be it the police, the ambulance service or the fire service. There are plenty of brave people who will risk their own life and limb to save others.

I rather agree what my hon. Friend the Member for Bury North (Mr Nuttall) said about the last words of clause 4, which refer to an action taken

“without regard to the person’s own safety or other interests.”

I suggest, and I think he agrees, that it is much more heroic to do something having had regard to one’s own safety or other interests, and to go on and do the brave thing—rescuing someone from a frozen lake, pulling them out of a burning building or whatever it might be—despite having thought about those interests. For goodness’ sake, if the Bill is to become law, the least we can do is to remove those last few words of clause 4. Even if it were difficult to work out in law what heroic negligence actually was, we would at least have made that clause a little better.

Nobody will be thanked, least of all a Government Back Bencher, for making a rude speech about a Government Bill, but from time to time, even on a hot day when I would rather be somewhere else, I find it necessary for this House to introduce a degree of common sense into a Bill before the other place gives it a thorough grilling. Far too often, the laws that we pass are the laws of the unintended consequence, and I have a horrible suspicion that if the Bill becomes an Act as it is currently drafted, it will be the subject of derision and confusion, or that even if that does not happen, it will fall into disuse.

I urge my hon. Friend the Minister to take my remarks in the spirit in which they are intended. I really do share with him and my right hon. Friend the Secretary of State the aims that the latter set out quite a few times— to prevent the abuse of the health and safety culture, to reduce spurious litigation and claims and so on. If I may say so, though, passing a Bill that has a hideous resemblance to an early-day motion rather than a proper Act of Parliament is not the way to do it.

I hope that the Bill will not be the subject of a Division this evening, because I cannot support it. If the Opposition seek a Division I will not join them in the lobby, because I found the manner in which the right hon. Member for Tooting made his speech unattractive, but that is a matter for him. We need to take the Bill away and give it a thorough scrubbing over the summer holidays.