The SARAH Bill: a victory for common sense!

This is the Justice Secretary, Chris Grayling, explaining what he calls his “Social Action, Responsibility and Heroism Bill”, trailed in the Queen’s Speech this week. It is, he says,

all about tackling the elf ‘n’ safety jobsworth culture in our society that leaves all too many people who want to do the right thing, who want to get involved in the community, who want to help others ,who want to do the right thing by their employees – but feel they can’t do it because somehow, if it goes wrong, they’re the ones who are going to end up getting the blame, they’re the ones who’re going to end up facing possibly a negligence suit in the courts.

He mentions “Good Samaritans” who may (nonetheless) pass by on the other side because of health and safety laws; people afraid of sweeping snow from their pavements; and small employers who have proper health and safety procedures but find that “something untoward goes wrong”. What he’s trying to do is

send a big message from Parliament to the courts to say the law should be on the side of common sense, that if you come across a case where people are trying to do the right thing the law should be on their side.

Mr Grayling may be right about the scourge of unswept snow, Samaritans not being what they were, and so on. He’s certainly right that a lot of people think you can’t do anything these days for fear of a claim, as newspapers have helpfully pointed out (although I’m not sure the courts often “come across” cases like this). Anyway, he’s decided legislation’s needed, since previous legislative change has failed, as yet, to calm the public.

Legal aid’s been unavailable for personal injury claims for some time, of course. Yes, “no win, no fee” agreements mean solicitors can make claims in the hope of a success fee, but since last year, it’s the litigious claimant – not the Samaritan or snow-sweeper – who’ll pay any success fee (see section 44(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012). And lawyers can no longer pay referral fees to claims management companies (under section 56 of LASPO). The government perhaps had come to think the litigation culture a thing of the past, since they actually made it a bit easier to make a personal injury claim by bringing in “qualified one-way costs shifting”. But perhaps the claimants they then had in mind were ordinary people who’ve suffered injury, rather than the litigious scroungers who’ve caused the compensation culture. Anyhow, it seems more measures are needed.

That’s in addition to the Enterprise and Regulatory Reform Act 2013, section 69 of which means (as the explanatory notes make clear) that, where “something untoward happens” an employer will already only be held liable for health and safety breaches where they’re proved to be negligent; and in addition to the Compensation Act 2006, section 1 of which already provides that

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with a desirable activity.

The SARAH bill will no doubt send an even bigger message, though. That’s what’s legislation’s for, after all.

As a victory for common sense this may even equal Chris Grayling’s reform permitting disproportionate force against burglars, a change I wrote about for the Guardian when he first proposed it. The apparently simple old legal principle (that you were entitled to use reasonable force, but no more, to defend yourself) must have caused many well-meaning newspaper readers to fear imprisonment, because an earlier government clarified it in ten subsections (or about 460 words) not changing the law (of course!) but sending the message that a person can rely on self-defence (as the explanatory notes explain)

if he honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as he viewed them. The section reaffirms that a person who uses force is to be judged on the basis of the circumstances as he perceived them, that in the heat of the moment he will not be expected to have judged exactly what action was called for, and that a degree of latitude may be given to a person who only did what he honestly and instinctively thought was necessary. A defendant is entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken.

That common sense message was not, however, quite correct or else not fully understood, which is why Mr Grayling inserted a further 7 subsections (or about 370 words) to ensure that

the use of disproportionate force can be regarded as reasonable in the circumstances as the accused believed them to be when householders are acting to protect themselves or others from trespassers in their homes. The use of grossly disproportionate force would still not be permitted. The provisions also extend to people who live and work in the same premises and armed forces personnel who may live and work in buildings such as barracks for periods of time. The provisions will not cover other scenarios where the use of force might be required, for example when people are defending themselves from attack on the street, preventing crime or protecting property, but the current law on the use of reasonable force will continue to apply in these situations.

Of course I’ve only quoted the explanatory notes rather than the full 17 subsection, 800 word plus provision, so I may have failed to convey its full simplicity and clarity. How easy it must be for juries to apply; how reassuring for homeowners.

That the civil law of negligence is to be clarified in a similar way brings a slight tear to my eye. Three cheers for Mr Grayling, and his victory for common sense!